Re Extradition Act; USA v Stegeman,

• Date: 19 October 1966
• Court: Court of Appeal (British Columbia)

Canada, Supreme Court of British Columbia.

Court of Appeal of British Columbia.

(Aikins J.)

Re Extradition Act; United States of America

and

Stegeman et Al.

Extradition Extraditable crimes Rule of double criminality Bankruptcy offences Whether offences under law of Canada.

The Facts.This was an application by way of habeas corpus with certiorari in aid for an order quashing an order of committal pursuant to the Extradition Act, pending surrender of the applicants to the proper authorities of the United States of America. The applicants, Fred E. Stegeman and lone E. Stegeman, had been indicted in the State of Oregon for bankruptcy offences which were crimes in the United States at the time when they took place. Following three petitions in bankruptcy filed against them, the applicants had knowingly and fraudulently transferred some of their property to British Columbia and concealed a certain amount of money and certain objects from the Trustee of their bankrupt estates. They were committed to prison in British Columbia by judgment of the Extradition Commissioner (Munroe J.) on the ground that the acts charged would, if committed in Canada, have been offences against Section 335 of the Criminal Code and were extradition crimes. (Judgment unreported.) Section 335 of the Code provides:

Every one who,

• (a) with intent to defraud his creditors,

  • (i) makes or causes to be made a gift, conveyance, assignment, sale, transfer or delivery of his property, or

  • (ii) removes, conceals or disposes of any of his property; or

• (b) with intent that any one should defraud his creditors, receives any property by means of or in relation to which an offence has been committed under paragraph (a), is guilty of an indictable offence and is liable to imprisonment for two years.

The application for habeas corpus turned on the question whether offences under Section 335 of the Criminal Code were extradition crimes. It was argued on behalf of the applicants that paragraph 24 (b) of the list of crimes set out in the First Schedule of the Extradition Act excluded Section 417 of the old Criminal Code, which corresponds with Section 335 of the present Code. Paragraph 34 (b) of the list of crimes provides:

24. Any offence under (b) Part VII of the Criminal Code, except sections 408 and 409, 416 to 418 inclusive, and that are not included in any foregoing portion of this Schedule

It was argued on behalf of the United States and the Attorney-General of British Columbia that the exclusion of offences under Section 335 from the list of crimes in the First Schedule did not mean that these offences could not be treated as extradition crimes. A proper construction of other provisions of the Extradition Act led to the opposite conclusion. Section 2 (c) of the Act provides:

2. In this Act, (c) extradition crime may mean any crime, that if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in the First Schedule; and, in the application of this Act to the case of any extradition arrangement,extradition crime means any crime described in such arrangement, whether or not it is comprised in the said Schedule;

Bankruptcy offences were made extradition crimes by the Supplementary Extradition Convention of 1905, in the following terms:

15. Offences, if made criminal by the laws of both countries, against bankruptcy law.

It was further argued by the applicants that Section 335 of the Criminal Code did not relate to bankruptcy, so that an offence thereunder could not be an offence against bankruptcy law. It was not a necessary ingredient in any offence under Section 335 that the accused be bankrupt and the Section therefore did not relate to bankruptcy; the crimes described in it were not extradition crimes within the meaning of the Supplementary Convention.

Held (by the Supreme Court of British Columbia): that the application for habeas corpus must be dismissed. The fact that offences under Section 335 of the Criminal Code were excluded from the list of crimes set out in the First Schedule of the Extradition Act was not conclusive of the question whether the offences charged were extraditable, since they were caught by Section 2 (c) of the Act, which rendered extraditable crimes described in any extradition arrangement whether or not it was comprised in the said Schedule. There existed such an arrangement with the United States, by which crimes against the law of bankruptcy were made extraditable. As to the contention that Section 335 of the Criminal Code did not relate to bankruptcy, the words used in the Convention of 1905 were not to be so narrowly construed as to exclude the offences described in that Section, which could be properly regarded in a broad and liberal sense as legislation relating to matters generally considered as part of bankruptcy law.

The Court stated the facts and said (in part):

[57 W.W.R. 272] The demanding State must show: (1) that the act charged against an alleged fugitive if proven to have...