Ex parte O'Dell and Griffen,

• Date: 09 February 1953
• Court: Superior Court of Justice of Ontario (Canada)

Canada, High Court of Ontario.

(Schroeder J.)

Ex parte O'Dell and Griffen.

British Commonwealth of Nations — Effect of Statute of Westminster on Treaties Made with Respect to Colonies — Canada.

British Commonwealth of Nations — Treaties — Operation of — British Treaties — Application to Independent Members of the Commonwealth — Canada — Treaties Concluded Prior to the Statute of Westminster, 1931.

The Facts.—O'Dell and Griffon were committed to prison until surrendered to the United States of America, where they were under indictment on a charge of murder, or until discharged according to law. They applied for a writ of habeas corpus, admitting that there was a prima facie case against them but claiming (1) that there was no subsisting extradition treaty between Canada and the United States, since the only relevant treaty was the Ashburton Treaty of 1842 entered into between Her Britannic Majesty and the United States, and that that treaty, made by the Imperial Government on behalf of Canada as a Colony, no longer has effect in view of the change in Canada's status from that of a Colony to that of an independent nation, by virtue of the Statute of Westminster, 1931;1 (2) that the non-observance of certain Canadian procedural rules invalidated the order for the committal of the two fugitives.

Held: that the application must be dismissed. The Statute of Westminster did not per se render invalid treaties concluded by the Imperial Government prior to the passing of that Statute and intended to apply to Canada. Further, the technicalities of local criminal procedure should not be allowed to stand in the way of the proper discharge of treaty obligations.

The Court said: “It is undoubtedly true that since 1931 Canada has been independently represented in the United States and in other foreign nations by her own diplomatic representatives and has entered into treaties with foreign countries through her own Ministers of State without reference to the Government of the United Kingdom, but I am quite unable to apprehend how it can be said that the enactment of the Statute of Westminster can possibly have the effect ascribed to it by counsel. The true relationship of the Crown to the various countries composing the British Commonwealth is set forth in the preamble of the statute.

“The Statute goes on to provide that the Colonial Laws Validity Act, 1865,2...