Re Commonwealth of Puerto Rico and Hernandez (No 2),

• Date: 30 November 1973
• Court: Court of Appeal (Canada)

Canada, Federal Court of Appeal.

(Jackett, C.J., Thurlow and Pratte, JJ.)

Re Commonwealth of Puerto Rico and Hernandez (No. 2)

The individual in international law — Extradition — In general — Quantum of evidence necessary for allowing extradition — Test of evidence sufficient to put fugitive on trial — Decision of the extradition judge on the weight of the evidence — Whether and when reviewable — Limits of the review — The law of Canada

Summary: The facts:—Hernandez was charged with murder in Puerto Rico. The evidence identifying him as the criminal was that of a police officer who did not previously know Hernandez and had a fleeting glimpse of the criminal from a distance of 60 feet. The police officer identified Hernandez from a photograph soon after the event and stated a year later that Hernandez was the criminal. The extradition judge found the evidence inadequate to connect Hernandez with the crime and refused to allow extradition. On an application for review:

Held:—(1) Before extradition could be allowed the evidence must be sufficient to warrant committal of the fugitive for trial.

(2) The evidence was not reasonably sufficient to warrant putting Hernandez on trial.

The following is the text of the judgment of the Court:

Thurlow, J.:—This was an application under s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), to review and set aside the decision of His Honour Judge A. E, Honeywell acting as a Judge under the Extradition Act, R.S.C. 1970, c. E-21, refusing to issue a warrant for the extradition of Humberto Pagan Hernandez, to whom I shall refer as the respondent, to Puerto Rico for trial on a charge of murder. The application came before this Court on August 2, 1972, when the Court held that it was without jurisdiction to entertain it. Subsequently, on October 29, 1973, the Supreme Court affirmed the jurisdiction of this Court in the matter and referred it back to the Court for determination on the merits. Thereafter, on November 15, and 16, 1973, the application was heard on the merits and dismissed, the Court intimating that its reasons for this conclusion would be delivered at a later date.

The grounds upon which an application under s. 28 of the Federal Court Act may be made, as set out in that section, are defined broadly enough to include any question of law or jurisdiction. The nature of the proceeding, however, is not that of a rehearing of the matter but is a review of the legality of what has transpired and this Court, while authorized to set the decision or order aside and to return the matter to the tribunal with directions, is not empowered, as is usual under appeal provisions, to give the decision or order that, in its opinion, the tribunal ought to have given. Nor is the Court authorized to reweigh the evidence and substitute its own view of the facts for that reached by the tribunal. In this area the jurisdiction is merely to set aside a decision based on a finding of fact that is not sustainable in law and thus falls within the meaning of s. 28(1)(c).

As I see it, it is within these limits that the Court had authority to review the decision here in question. By the Extradition Act and art. 10 of the Ashburton Treaty, 1842 the extradition Judge is required to issue his warrant for the committal of the fugitive for extradition if such evidence is produced as would, according to the law of Canada, justify his committal for trial, if the crime had been committed in Canada and if such evidence is not produced he is to be discharged. Under s. 475 [am. R.S.C. 1970, c. 2 (2nd Supp.), s. 8] of the Criminal Code, R.S.C. 1970, c. C-34, a justice holding a preliminary inquiry is required to commit the accused for trial ‘if in his opinion the evidence is sufficient to put the accused on trial’ and if, in his opinion, no sufficient case is made out he is to discharge the accused. The standard of proof so required is neither absolute nor precise but depends on a value judgment of the sufficiency of the evidence to justify putting the accused on trial for the alleged offence. It seems clear that at least in cases where honest opinions may differ as to the sufficiency of the evidence, it can scarcely be said that there is error in law in the justice's disposition of the case merely because a reviewing Court or some of its members might have inclined to a different result had it been the tribunal holding the inquiry. Something more than that would undoubtedly be required before a reviewing Court could be expected to interfere even if it had jurisdiction to review the facts and to decide the case upon its own view of them. But where, as here, the jurisdiction to review is confined to matters of law, apart from misdirection or error of law in the conduct of the proceedings, the Court...