Argentina (Republic) v. Mellino, (1987) 76 N.R. 51 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 14, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 76 N.R. 51 (SCC);33 CCC (3d) 334;28 CRR 262;1987 CanLII 49 (SCC);[1987] SCJ No 25 (QL);80 AR 1;[1987] 1 SCR 536;2 WCB (2d) 300;52 Alta LR (2d) 1;[1987] 4 WWR 289;76 NR 51;[1987] ACS no 25;40 DLR (4th) 74

Argentina v. Mellino (1987), 76 N.R. 51 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Republic of Argentina v. Hector Mellino

(No. 19272)

Indexed As: Argentina (Republic) v. Mellino

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.

May 14, 1987.

Summary:

Mellino was wanted on a murder charge in Argentina. After he came to Canada an application for his extradition by Argentina was dismissed for failure to produce the necessary documentation within the required time and he was discharged. Seventeen months later another extradition application was made and he was arrested. Five months later at the extradition hearing Mellino applied for a stay on the grounds that s. 11(b) of the Charter was breached by the delay and that the proceedings were an abuse of process.

The extradition judge granted the application for a stay on the s. 11(b) delay ground and discharged Mellino. Argentina appealed.

The Supreme Court of Canada allowed the appeal and remitted the matter to the extradition judge. The court held that the Charter had no application to the actions of foreign powers and consequently did not protect Mellino from delay by Argentina in its extradition proceedings against him. The court stated that the "modest" role of an extradition judge is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed. The extradition judge has no jurisdiction to review the actions of foreign officials to consider whether there has been an abuse of process by them or to consider defences to the crime on the merits.

Civil Rights - Topic 3129

Trials, due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Extradition - The Supreme Court of Canada held that s. 11 of the Charter respecting the rights of accused was in applicable to extradition proceedings, because the substantive offence was within the jurisdiction of a foreign state - See paragraphs 16 to 18 - The court suggested, however, that if abuse of the extradition process is attributable to Canadian authorities, s. 7 of the Charter could be engaged - For the purpose of a remedy the extradition judge was not a court of competent jurisdiction under s. 24 of the Charter; although a court in habeas corpus proceedings would be - See paragraphs 21 to 25, 34 to 35.

Civil Rights - Topic 3130

Trials, due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay - An Argentine national was discharged after an extradition hearing in Canada - 17 Months later another application for extradition was made - He was free in the meantime - The Supreme Court of Canada held that there was no abuse of process or violation of s. 7 of the Charter by the delay - See paragraphs 21 to 27.

Civil Rights - Topic 3269

Trials, due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Application of - Article V of the Extradition Treaty between Canada and Argentina provided that extradition will not take place if "exemption from prosecution or punishment has acquired by lapse of time, according to the laws of the state applying or applied to" - The Supreme Court of Canada held that s. 11(b) of the Charter respecting the right to trial within a reasonable time was not a limitation period within the meaning of Article V - See paragraph 17.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application - Territorial limits - The Supreme Court of Canada held that s. 11 of the Charter respecting the rights of accused was inapplicable to extradition proceedings, because the substantive offence was within the jurisdiction of a foreign state - See paragraphs 16 to 18.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - The Supreme Court of Canada held that, just as the power to grant a stay for abuse of process is vested in the trial judge, not the preliminary hearing judge, abuse of process in an extradition case should be dealt with by the judge at the trial for the offence and not by the extradition judge - See paragraphs 19 to 20.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - What constitutes - The Supreme Court of Canada held that an extradition judge is not a court of competent jurisdiction for the purpose of granting remedies under the Charter; although a court in habeas corpus would be - See paragraphs 34 to 38.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Supreme Court of Canada considered cases on the United States Constitution in construing the Charter of Rights - See paragraphs 16, 35.

Courts - Topic 3161

Supreme Court of Canada - Jurisdiction - Appeals from provincial courts - Ex tradition - General - The Supreme Court of Canada held that under ss. 2(1) and 41 of the Supreme Court Act, R.S.C. 1970, c. S-19, the Supreme Court of Canada had jurisdiction to hear an appeal on an application for extradition from the Alberta Court of Queen's Bench - See paragraphs 12 to 15.

Extradition - Topic 20

General - Bars to extradition - Limitation period - What constitutes - Article V of the Extradition Treaty between Canada and Argentina provided that extradition will not take place if "exemption from prosecution or punishment has acquired by lapse of time, according to the laws of the state applying or applied to" - The Supreme Court of Canada held that s. 11(b) of the Charter respecting the right to trial within a reasonable time was not a limitation period within the meaning of Article V - See paragraph 17.

Extradition - Topic 2605

Evidence and procedure before examining judge - Purpose of hearing - Role of extradition judge - The Supreme Court of Canada stated that the "modest" role of an extradition judge is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed - The extradition judge is not a court of competent jurisdiction for the purpose of providing remedies under s. 24 of the Charter - The extradition judge has no jurisdiction to review the actions of foreign officials to consider whether there has been an abuse of process by them or to consider defences on the merits - The court stressed that surrender of a fugitive is a matter for executive decision, not the court - See paragraphs 19 to 20, 28 to 38.

Cases Noticed:

United States of America v. Link and Green, [1955] S.C.R. 183, overruled [para. 13].

Schmidt v. Canada (1987), 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 13].

Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, refd to. [para. 14].

R. v. Hill (No. 2), [1977] 1 S.C.R. 827; 7 N.R. 373, consd. [para. 14].

Goldhar v. R., [1960] S.C.R. 60, refd to. [para. 14].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, consd. [para. 14].

Jhirad v. Ferrandina (1976), 536 F. 2d 478 (2d Cir.), consd. [paras. 16, 22, 36].

Sabatier v. Dabrowski (1978), 586 F. 2d 866 (1st Cir.), consd. [paras. 16, 22, 36].

Matter of Burt (1984), 737 F. 2d 1477 (7th Cir.), consd. [paras. 16, 35].

R. v. Brixton Prison (Governor of), ex parte Van der Auwera, [1907] 2 K.B. 157, refd to. [para. 17].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, consd. [para. 19].

R. v. Young (1984), 3 O.A.C. 254; 40 C.R.(3d) 289 (Ont. C.A.), consd. [para. 19].

R. v. Morton and Thompson (1868), 19 U.C.C.P. 9, appld. [para. 20].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 21].

Attorney General of Hong Kong v. Kwok A-Sing (1873), L.R. 5 P.C. 179, consd. [para. 24].

Harsha (No. 2), Re (1906), 11 C.C.C. 62 (Ont. H.C.), consd. [para. 24].

Armstrong v. State of Wisconsin, [1972] F.C. 1228 (C.A.), consd. [para. 24].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, appld. [para. 29].

Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; 44 N.R. 616, dist. [para. 30].

Global Communications Ltd. and Attorney General for Canada, Re (1984), 2 O.A.C. 21; 10 C.C.C.(3d) 97 (C.A.), consd. [para. 30].

Insull, Re, [1933] 3 D.L.R. 709 (Ont. S.C.), consd. [para. 33].

United States of America and Smith, Re (1984), 10 C.C.C.(3d) 540 (Ont. C.A.), consd. [para. 33].

United States of America v. Beaurone (1983), 27 Sask.R. 136 (Q.B.), consd. [para. 33].

Federal Republic of Germany and Rauca, Re (1983), 4 C.C.C.(3d) 385 (Ont. C.A.), refd to. [para. 33].

Royal Government of Greece v. Brixton Prison Governor, [1969] 3 All E.R. 1337 (H.L.), consd. [para. 36].

United States v. Allart (1987), 75 N.R. 260, refd to. [para. 42].

R. v. Carter, [1986] 1 S.C.R. 981; 67 N.R. 375, consd. [para. 49].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7 [paras. 1, 19]; sect. 11(b), sect. 11(h) [paras. 1, 16]; sect. 24(1) [para. 34]; sect. 32 [paras. 16, 21, 25].

Extradition Act, R.S.C. 1970, c. E-21 [para. 5].

Extradition Treaty Between the Argentina Republic and Great Britain, S.C. 1894, p. xlii, art. V [para. 17]; art. XIV [para. 5].

Fugitive Offenders Act, R.S.C. 1970, c. F-32, sect. 17 [para. 26].

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 2(1), sect. 41 [para. 12].

Authors and Works Noticed:

Booth, V.E. Hartley, British Extradition Law and Procedure (Alphen Aan den Rijn (The Netherlands): Sijthoff & Noordhoff, 1980), vol. 1, p. 42 [para. 23].

Counsel:

Douglas J.A. Rutherford, Q.C., and Michael C. Blanchflower, for the appellant, Republic of Argentina;

John D. James, for the respondent.

Solicitors of Record:

Roger Tasse, Ottawa, Ontario, for the appellant;

John D. James, Calgary, Alberta, for the respondent.

This case was heard on December 19, 1985, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On May 14, 1987, the judgment of the Supreme Court of Canada was delivered in both official languages, and the following opinions were filed:

La Forest, J. (Dickson, C.J.C., Beetz, McIntyre and Le Dain, JJ., concurring) - see paragraphs 1 to 39;

Wilson, J. - see paragraphs 40 to 46;

Lamer, J., dissenting - see paragraphs 47 to 50.