Re State of Wisconsin and Armstrong,
| Date | 05 January 1973 |
| Court | Court of Appeal (Canada) |
(Thurlow J., Cameron and Sweet D.JJ.)
The individual in international law Extradition Conditions of extradition Double criminality Charge of murder Whether extradition judge obliged to consider degree of murder if condition satisfied The law of Canada
The individual in international law Extradition Procedure of extradition Admission of affidavit evidence Whether necessary to give fugitive opportunity of cross-examination Whether fugitive's right to a fair hearing violated in the absence of such opportunity Difference in procedure between hearing of application for extradition and other hearings The law of Canada
The individual in international law Extradition Political crimes Meaning of Whether a political motive necessary Whether crime not directed against authority of the Government a political crime Whether crime committed in an endeavour to bring about change in government policy a political crime Whether fugitive can unilaterally cause the crime to be political Authority having jurisdiction to decide the question Whether judge so empowered Function of the extradition judge Plea of political offence on application for extradition Whether possible to take point without admitting the crime Conditions of extradition Double criminality Charge of murder Whether extradition judge obliged to consider degree of murder if condition satisfied Procedure of extradition Admission of affidavit evidence Whether necessary to give fugitive opportunity of cross-examintion Whether fugitive's right to a fair hearing violated in the absence of such opportunity Difference in procedure between hearing of application for extradition and other hearings The law of Canada
Summary: The facts:An application was made for the extradition of Armstrong to the United States for trial on charges of arson and murder. Section 16 of the Extradition Act allowed the reception of affidavit evidence in extradition proceedings. Some affidavits were admitted into evidence. Armstrong had no opportunity to cross-examine the deponents and contended, inter alia, that his right to a fair hearing under the Bill of Rights had been violated and that Section 16 was inoperative since it violated the Bill of Rights. Armstrong also contended that the degree of the murder should be specified. The charges arose out of the bombing of a building at the University of Wisconsin. Armstrong denied his guilt and further contended that the alleged crimes were political and that the application should be rejected on that ground.
Held:(1) Section 16 of the Extradition Act and the procedure adopted did not involve any violation of the Bill of Rights. The procedure at the hearing of an application for extradition was different from that at the trial as the former was not a final proceeding concerned with the determination of the guilt or innocence of the accused.
(2) The extradition judge was not under a duty to specify the degree of murder once it was established that the crime was extraditable.
(3) The extradition judge had no jurisdiction to decide whether a crime was political or not. The decision on the question was a matter for the Executive. The function of the extradition judge was to record the evidence on the question and leave the determination of it to the appropriate authority.
(4) Nevertheless, even if the extradition judge had had jurisdiction to determine whether the alleged offence was political, the evidence did not point irresistably to the conclusion that it was. A political motive on the part of the defendant, though not by itself sufficient to establish that an offence was political, was a prerequisite of any political offence. The evidence regarding Armstrong's motives was equivocal, not least because he denied having committed the alleged murder.
The following is the text of the judgments delivered in the Court:
Thurlow, J.:This is an application under s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), to review and set aside a warrant issued under the Extradition Act, R.S.C. 1970, c. E-21, by Judge H. Waisberg committing the applicant, Karleton Lewis Armstrong, to prison to await his extradition to the United States for trial on four charges of arson and one charge of murder contrary to the statutes of the State of Wisconsin.
The application was based on seven grounds which I shall set out and deal with in turn but before doing so it seems desirable, in view of some of the arguments that were presented, to re-emphasize that a s. 28 application is not an appeal. It bears some resemblance to an appeal on a question of law but the Court is not empowered on such an application to review the decision on questions of fact save to the limited extent mentioned in s. 28(1) (c) or to substitute its own judgment on questions of fact or to give the judgment that the tribunal against whose decision the proceeding is brought should have given. Moreover, the relief that is obtainable may be afforded only on the grounds set out in s. 28, that is to say, on the basis that the tribunal whose decision or order is attacked:
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
The first of the seven points raised was alleged error in law on the part of Judge Waisberg in accepting into evidence and acting upon affidavits tendered in support of the charges without permitting the applicant full opportunity to cross-examine the witnesses who gave their evidence by way of those affidavits. The submission of the applicant was that though on the face of it s. 16 of the Extradition Act permits the reception of such affidavits into evidence, and though the jurisprudence in Canada since 1877 confirms the practice of admitting them, it has nevertheless become necessary since the enactment of the Canadian Bill of Rights, either to hold s. 16 inoperative or to so construe it as to render such affidavits inadmissible when no opportunity has been afforded to the fugitive to cross-examine the deponents. It was urged that without such an opportunity being afforded the admission of the affidavits constitutes (1) an infringement of the fugitive's right under s. 1(a) of the Canadian Bill of Rights to enjoy his liberty and not to be deprived of it without due process of law; and (2) a deprivation of his right under s. 2 (e) of that statute to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights.
Turning first to s. 1(a), I do not think as a matter of interpretation that the due process provision of that section in its relation to extradition proceedings calls for any further or different legal process or any process of a higher standard than prevailed in such proceedings prior to its enactment saving if and in so far as the provisions of s. 2 may have grafted on what was formerly regarded as due process of law requirements of a higher standard than formerly prevailed for the protection of the human rights and fundamental freedoms of the individual recognized and declared by s. 1 (a): see Curr v. The QueenUNK (1972), 26 D.L.R. (3d) 603, 7 C.C.C. (2d) 181, 18 C.R.N.S. 281, per Ritchie, J., at p. 607 D.L.R., p. 185 C.C.C., and per Laskin, J., at pp. 6124 D.L.R., pp. 1902 C.C.C. If s. 2 (a) imposed some new requirement which is not observed the procedure may not be due process within s. 1 (a) but, if it does not, it does not seem to me that it can be affirmed that a failure of due process is involved when the established legal procedure has been followed. The substantial question to be resolved on the Bill of Rights as I see it is therefore whether the established procedure involved the denial to the applicant of his right under s. 2 (a) to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
As applied to a case of this kind the meaning of this expression in my opinion does not imply anything different in substance from that of the expression a principle of natural justice in s. 28(1) (a) of the Federal Court Act. Both expressions imply a certain standard of procedure which includes apprising the individual of what it is that is charged against him and of the facts to be considered in support of the accusation and affording him a fair opportunity to answer such facts before a decision determining his rights or obligations is reached. It has frequently been said that this does not necessarily call for a formal trial or trial procedures and it is abundantly clear that what is required to give effect to the principles involved depends on the particular situation. A useful summary of this is found in the judgment of the Privy Council in University of Ceylon v. FernandoWLR, [1960] 1 W.L.R. 223, a case which involved alleged denial of cross-examination, where Lord Jenkins said at pp. 2312:
Accordingly (apart from a subsidiary question as to the jurisdiction of the courts in Ceylon to grant declaratory relief in such a case), the present appeal resolves itself into the question whether this inquiry was conducted with due regard to the rights accorded by the principles of natural justice to the plaintiff as the person against whom it was directed.
These rights have been defined in varying language in a large number of cases covering a wide field. Their Lordships do not propose to review these authorities at length, but would observe that the question whether the requirements of natural justice have been met by the procedure adopted in any given case must depend to a great extent on the facts and circumstances of the case in point. As Tucker L.J. said in Russell...
To continue reading
Request your trial