R v MacDonald,
| Court | Superior Court of Justice of Ontario (Canada) |
| Date | 25 August 1982 |
(White J)
Extradition Rule of speciality Absence of treaty Australia and Canada entering into extradition arrangement incorporating rule of speciality Extradition on narcotic charges Whether applicant could be detained on any charge other than that for which he was extradited Extradition (Commonwealth Countries) Act 1966 (Australia) Extradition Act, RSC 1970, c. E-21 The law of Canada
Summary:The facts:In 1968 the applicant was convicted in Canada of various charges while a fugitive from Canadian justice on charges of robbery. In 1981 while on day parole, he fled the country and was apprehended in Australia. While out of Canada he was accused of two further charges of conspiracy to import and conspiracy to traffic in heroin, contrary to the provisions of the Criminal Code, RSC 1970, and the Narcotic Control Act, RSC 1970. A warrant was issued in Ontario for his arrest on narcotic charges.
Canada applied to Australia for his extradition, and pursuant to the Extradition (Commonwealth Countries) Act 1966 (Australia) (the Act), he was surrendered to the Canadian authorities to stand trial on narcotic charges. Upon his return to Ontario he was placed in custody and his application for interim release was not given a hearing on the ground that he was required to be kept in lawful custody to serve his remaining term of imprisonment on the robbery charges and was, therefore, a person required to be detained in custody in respect of any other matter under the provisions of the Criminal Code. The applicant applied for a writ of habeas corpus on the ground that Canada's arrangement with Australia for the rendition of fugitive offenders prohibited his punishment for an offence other than the one for which his rendition was obtained, and, therefore, he could not be kept in custody to serve the sentence for robbery.
Held:The detention of the applicant on the robbery charges was unlawful; he was entitled to a judicial interim release hearing on the charges of conspiracy to import and conspiracy to traffic in heroin, but he was to be detained pending the hearing for judicial interim release.
(1) In the absence of a formal extradition treaty, Canada had entered into an extradition arrangement with Australia, whereby Canada, on obtaining the co-operation of the Australian Government in apprehending the criminal fugitive, agreed to be bound by the provisions of the Australian Statute, the Extradition (Commonwealth Countries) Act 1966, under which the fugitive was lawfully apprehended.
(2) Canada had agreed to be bound by the rule of speciality as incorporated in Section 11(3) of the Act, which provided that the requesting State give an undertaking that after the return of the criminal fugitive to its jurisdiction, he would be dealt with only in respect of those criminal charges for which his extradition was sought and authorized. The rule was also incorporated in Section 33 of the Canadian Extradition Act, RSC 1970. Section 457(1) of the Criminal Code provided that an accused who was not required to be detained in custody in respect of any other matter was entitled to a judicial interim release or bail. In this case, although the accused was required to be detained in custody for the remainder of his sentence on the robbery charges, to enforce the provisions of the Code would put Canada in breach of her international undertaking to the Government of Australia. Domestic legislation was to be interpreted so as to be consistent with international law. The application of this principle to the instant case, where it was the incompatibility between two domestic statutes which was in issue, meant that Section 33 of the Extradition Act was to be treated as paramount to the incompatible provisions of Section 457(1) of the Criminal Code. Thus the accused was immunized from imprisonment under the earlier charge by Section 33 of the Extradition Act, and the only relevant charges were the narcotic charges in respect of which he was entitled to a hearing for judicial interim release.
The following is the text of the judgment of the Court:
This is an application by Robert Daniel MacDonald for an order for a writ of habeas corpus ad subjiciendum. Mr. MacDonald is presently being detained in the Regional Detention Centre at Thorold, Ontario, in the Judicial District of Niagara South pursuant to two outstanding charges of conspiracy to import and conspiracy to traffic in heroin, which charges are to be tried in the Judicial District of Niagara South.
First, I will state briefly some of the factual background which gives rise to the application. In October of 1968, Mr. MacDonald was convicted of the offences of robbery, break and enter with intent, break and enter and theft. At that time he was sentenced to 11 years of imprisonment on these charges. While serving this term he committed additional criminal offences resulting in additions to his sentences. Thus, subject to any remission which he might earn, the anticipated termination date of his accumulated sentences would occur in 1985.
While serving the sentences, on May 7, 1981, Mr. MacDonald was temporarily out of close custody on day parole. He chose this opportunity to go absent without leave. Thereafter, he was unlawfully at large with respect to his obligation to serve the remainder of his accumulated sentences in the federal penitentiary where he was confined prior to his unannounced departure on May 7, 1981.
Following his departure from lawful custody, Mr. MacDonald was accused of the two charges noted above, being conspiracy to import and conspiracy to traffic in heroin, a narcotic drug contrary to the provisions of the Criminal Code, R.S.C. 1970, c. C-34 and the Narcotic Control Act, R.S.C. 1970, C. N-1. Warrants for the arrest of Mr. MacDonald were issued by a justice of the peace in respect of these charges in the Judicial District of Niagara South in August 1981.
On the application of the government of Canada, and pursuant to the Extradition (Commonwealth Countries) Act, 1966 (Aust.), c. 75, the government of Australia on November 11, 1981, issued a warrant for the surrender of the fugitive Mr. MacDonald, whereby the Keeper of Her Majesty's prison at Malabar, Australia was authorized to deliver the fugitive into the custody of two named R.C.M.P. constables and whereby such R.C.M.P. constables were authorized to receive the fugitive into their custody and to convey him to a place in or within the jurisdiction of Canada and there surrender him to some person appointed to receive him.
The Keeper of the prison at Malabar duly transferred the custody of the fugitive to the R.C.M.P. officers and they duly conveyed him to the custody of the warders at the Regional Detention Centre at Thorold, Ontario, where he awaits trial on the charges for which the government of Australia issued such warrant under the Australian statute.
The justice of the peace at Thorold, because of the accumulated sentences being served by Mr. MacDonald at the time of his unauthorized flight from lawful custody in May 1981, would still require him to remain in lawful custody in the ordinary course of events and has refused to grant Mr. MacDonald a bail hearing.
There is no doubt that the Australian government arrested Mr. MacDonald in order that he be transferred to Canada pursuant to the Extradition (Commonwealth Countries) Act. There is no doubt that the government of Canada accepted a transfer of the custody of Mr. MacDonald and conveyed him to his present place of custody, the Regional Detention Centre at Thorold, on the undertaking of the government of Canada that it would be bound by the provisions of the Australian statute under which the government of Australia apprehended Mr. MacDonald. There is, I am advised by counsel for the Attorney-General of Canada, no formal extradition treaty between Canada and Australia. In the past, the matter of apprehension of fugitives fleeing from the criminal law of one British Commonwealth country to another has been dealt with under the provisions of the...
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