Schmidt v. Canada, United States of America, Ontario (Attorney General) and Metro West Detention Centre, (1984) 2 O.A.C. 336 (CA)

• Judge: Howland, C.J.O., Lacourcière and Houlden, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 27, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 336 (CA)

Schmidt v. Can. (1984), 2 O.A.C. 336 (CA)

MLB headnote and full text

Schmidt v. Canada, Government of, United States of America, Attorney General for Ontario and Superintendent of the Metro West Detention Centre

Indexed As: Schmidt v. Canada, United States of America, Ontario (Attorney General) and Metro West Detention Centre

Ontario Court of Appeal

Howland, C.J.O., Lacourcière and Houlden, JJ.A.

January 27, 1984.

Summary:

The accused, a Canadian citizen, was arrested in the United States and charged with the federal offence of kidnapping and the state offence of child stealing. The accused was acquitted of kidnapping, but fled to Canada before her trial on the offence of child stealing. She was apprehended in Ontario. The United States then commenced extradition proceedings to return her to the United States.

The Ontario District Court ordered her extradition. The accused applied for a writ of habeas corpus ad subjiciendum with certiorari in aid to quash the committal warrant.

The Ontario High Court, in a decision reported in (1983), 4 C.C.C.(3d) 409, dismissed the application. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3192

Trials, due process and fair hearings - Administrative and non-criminal proceedings - Procedure contrary to fundamental justice - Right to cross-examine deponents - The Ontario Court of Appeal held that the lack of a right to cross-examine deponents of affidavits in an extradition hearing did not contravene the principles of fundamental justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms - See paragraph 26.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - An accused fighting extradition from Canada sought to cross-examine the deponents of the affidavits filed in support of the extradition - The accused submitted that the right to cross-examine was guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms - The Ontario Court of Appeal held that the limitation on the right to cross-examine in s. 16 of the Extradition Act and Article 10(2) of the Canada-U.S. Extradition Treaty was a reasonable one demonstrably justified in a free and democratic society within s. 1 of the Charter - See paragraph 26.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - Section 11(h) of the Canadian Charter of Rights and Freedoms protected an accused, if finally acquitted of an offence, from being tried again for it - The accused was acquitted in the U.S. of the federal offence of kidnapping, but fled to Canada before trial on a state offence of child stealing - She resisted extradition, relying on s. 11(h) of the Charter - The Ontario Court of Appeal held that because the extradition offence of child stealing was not the same as the offence for which she was acquitted, s. 11(h) did not protect the accused - See paragraphs 18 to 25.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Principles of fundamental justice - The Ontario Court of Appeal held that the lack of a right to cross-examine deponents of affidavits in an extradition hearing did not contravene the principles of fundamental justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms - See paragraph 26.

Criminal Law - Topic 3706

Preliminary inquiry - Procedure - Pleas or defences - The Ontario Court of Appeal stated that special pleas such as autrefois acquit or the defence of res judicata may not be considered by a judge at a preliminary inquiry - See paragraphs 13, 17.

Extradition - Topic 708

Extradition offences - Canada-U.S. Treaty - Child stealing - The Ontario Court of Appeal held that the offence of child stealing, contrary to s. 2905.04 of the Revised Code of Ohio was an extradition crime under the Canada-U.S. Extradition Treaty - See paragraph 8.

Extradition - Topic 2606

Evidence and procedure before examining judge - Nature of hearing - The Ontario Court of Appeal stated that an extradition hearing was similar in nature to a preliminary inquiry - See paragraph 12.

Extradition - Topic 2643

Evidence and procedure before examining judge - Evidence - General - Affidavits - Cross-examination of deponents - Section 16 of the Extradition Act and Article 10(2) of the Canada-U.S. Extradition Treaty placed limitations on the right to cross-examine deponents of affidavits in an extradition hearing - The Ontario Court of Appeal held that s. 16 and Article 10(2) did not contravene the right not to be deprived of liberty except in accordance with the principles of fundamental justice as guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraph 26.

Extradition - Topic 2744

Evidence and procedure before examining judge - Defences - When available - The Ontario Court of Appeal held that the judge at an extradition hearing could not entertain special pleas such as autrefois acquit; such pleas would be available at trial if a warrant of committal issued - Neither could the judge consider the defence of res judicata - See paragraphs 9 to 18.

Cases Noticed:

Re Federal Republic of Germany and Rauca (1983), 41 O.R.(2d) 225 (C.A.), refd to. [para. 12].

Re Regina v. Rothman, [1966] 4 C.C.C. 316, appld. [para. 13].

Bartkus v. Illinois, 359 U.S. 121, refd to. [para. 14].

Abbate v. U.S., 359 U.S. 187 (U.S.S.C.), refd to. [para. 14].

State of Ohio v. Fletcher, 271 N.E.2d 567, refd to. [para. 14].

Atkinson v. United States of America Government, [1971] A.C. 197, dist. [para. 15].

Cullen v. The King (1949), 94 C.C.C. 337, refd to. [para. 16].

Re Ulrich and the Queen (1977), 38 C.C.C.(2d) 1, agreed with [para. 17].

United States of America on behalf of the State of California v. Smith (1984), 2 O.A.C. 1, folld. [para. 26].

Statutes Noticed:

Extradition Act, R.S.C. 1970, c. E-21, sect. 13 [paras. 11, 14]; sect. 16 [para. 26]; sect. 18 [para. 20].

Extradition Treaty between Canada and the United States of America (1956), Article 2 [para. 9]; Article 4(1)(i) [para. 19]; Article 10(2) [para. 26].

United States Code, Title 18, c. 209 (Extradition), sect. [paras. 2, 22].

Ohio Revised Code, sect. 2905.04 [paras. 2, 6].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 26]; sect. 11(h) [paras. 10, 18, 21, 25].

Counsel:

J. Pinkofsky, for the appellant;

Roger Leclaire, for the respondents.

This appeal was heard before Howland, C.J.O., Lacourcière and Houlden, JJ.A., of the Ontario Court of Appeal on November 21 and 22, 1983. The decision of the Court of Appeal was delivered by Lacourcière, J.A., and released on January 27, 1984.