R. v. Zelitt (S.S.),

• Judge: Wittmann
• Neutral Citation: 2006 ABQB 234
• Citation: (2006), 396 A.R. 295 (QB),2006 ABQB 234,396 AR 295,(2006), 396 AR 295 (QB),396 A.R. 295
• Date: 16 February 2006
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Zelitt (S.S.) (2006), 396 A.R. 295 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AP.015

Her Majesty the Queen (respondent) v. Sheldon S. Zelitt (applicant)

(0601 00042; 2006 ABQB 234)

Indexed As: R. v. Zelitt (S.S.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, A.C.J.Q.B.

March 27, 2006.

Summary:

The applicant was convicted of offences under the Alberta Securities Act. He was sentenced to a total of eight years' imprisonment. Canadian officials requested the applicant's extradition from the Czech Republic. Czech officials determined that the applicant was admissible for extradition in accordance with the Treaty Between the United Kingdom and the Czech Republic for the Extradition of Criminals. The applicant alleged that he was unlawfully extradited to Canada. He applied for a declaration that his Charter rights were infringed and that he was unlawfully detained. He also sought an order in the nature of habeas corpus, pursuant to s. 24(1) of the Charter, declaring that he be released from custody.

The Alberta Court of Queen's Bench dismissed the application. The court found that the applicant's extradition and detention were valid. Consequently, the applicant's Charter arguments were without merit.

Extradition - Topic 7.1

General - Territorial jurisdiction of extradition crime - The applicant was convicted of offences under the Alberta Securities Act - He was sentenced to a total of eight years' imprisonment - Canadian officials requested the applicant's extradition from the Czech Republic - Czech officials determined that the applicant was admissible for extradition in accordance with the Treaty Between the United Kingdom and the Czech Republic for the Extradition of Criminals - The applicant alleged that he was unlawfully extradited to Canada - He argued that the phrase "an offence over which Canada has jurisdiction" in s. 78(1) of the Extradition Act limited the availability of extradition to Canada to federal criminal offences - Consequently, extradition was not available for provincial offences such as offences under the Securities Act - The Alberta Court of Queen's Bench rejected the argument - Nowhere in the Extradition Act did "Canada" refer to the federal government, as distinct from the provincial governments - Additionally, s. 35(1) of the Interpretation Act (Can.) defined "Canada" as including the internal waters and territorial sea of Canada, thereby referencing Canada in a geographical sense - The phrase "an offence over which Canada has jurisdiction" was intended to capture offences which were within the territorial jurisdiction of the country of Canada - See paragraphs 23 to 43.

Extradition - Topic 605

Extraditable offences - General - "Extradition crime" defined - The applicant was convicted of offences under the Alberta Securities Act - He was sentenced to a total of eight years' imprisonment - Canadian officials requested the applicant's extradition from the Czech Republic - Czech officials determined that the applicant was admissible for extradition in accordance with the Treaty Between the United Kingdom and the Czech Republic for the Extradition of Criminals - The applicant alleged that he was unlawfully extradited to Canada - He argued that extradition was available only in relation to indictable offences (Treaty, art. 2) - The Alberta Court of Queen's Bench rejected the argument - The first paragraph of art. 2 stated that extradition was available for "the following crimes or offences, provided that such crimes or offences are indictable ..." - The question was whether that reference to indictable crimes extended to the discretionary grant of power in the last paragraph - It did not - A careful reading of art. 2 indicated that the first paragraph, the list of specific offences and the two paragraphs thereafter, related to mandatory extradition - The last paragraph was disjunctive from the first paragraph in that it spoke to discretionary extradition - Moreover, the phrase "any other crime" suggested that this paragraph was to be read separately from those that preceded it - See paragraphs 12 to 20.

Extradition - Topic 605

Extraditable offences - General - "Extradition crime" defined - The applicant was convicted of offences under the Alberta Securities Act - He was sentenced to a total of eight years' imprisonment - Canadian officials requested the applicant's extradition from the Czech Republic - Czech officials determined that the applicant was admissible for extradition in accordance with the Treaty Between the United Kingdom and the Czech Republic for the Extradition of Criminals - The applicant alleged that he was unlawfully extradited to Canada - He argued that extradition was available only in relation to an offender that had been sentenced and where the sentence remaining to be served was at least six months (Extradition Act, s. 3) - For three of his convictions, he received sentences of only three months - The Alberta Court of Queen's Bench rejected the argument - Section 3 applied only to extradition from Canada and there were no similar requirements in the Extradition Act for extradition to Canada - Nor was there any basis suggested upon which such a requirement could be implied - See paragraphs 21 and 22.

Cases Noticed:

United States of America v. Barrientos (1995), 178 A.R. 1; 110 W.A.C. 1 (C.A.), revd. on other grounds [1997] 1 S.C.R. 531; 209 N.R. 2; 196 A.R. 112; 141 W.A.C. 112, consd. [paras. 10, 16].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 17].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [para. 27].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 3 [paras. 21, 22]; sect. 78 [para. 23].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd. Ed. 2000), p. 308 [para. 27].

La Forest, Anne Warner, Extradition to and from Canada (3rd  Ed. 1991), pp. 55 [para. 41]; 55 to 66 [para. 28]; 79 [para. 20].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 283 [para. 27].

Counsel:

Louise M. Proulx, for Justice Canada;

Jane McClellan, for Special Prosecutions, Alberta;

Timothy E. Foster, for the applicant.

This application was heard on January 17 and 30 and February 16, 2006, by Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 27, 2006.