Schmidt v. Canada, United States of America, Ontario (Attorney General) and Metro West Detention Centre, (1987) 20 O.A.C. 161 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 14, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 20 O.A.C. 161 (SCC);7 DLR (4th) 95;58 CR (3d) 1;20 OAC 161;61 OR (2d) 530;1987 CanLII 48 (SCC);[1987] ACS no 24;10 CCC (3d) 564;[1987] SCJ No 24 (QL);28 CRR 280;[1987] 1 SCR 500;2 WCB (2d) 299

Schmidt v. Can. (1987), 20 O.A.C. 161 (SCC)

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

(No. 18343)

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

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.

May 14, 1987.

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 in a decision reported at 2 O.A.C. 336 dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal on the ground that the surrendering of the accused did not constitute a breach of the Charter.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada stated that "the Charter does not govern the actions of a foreign country. In particular, the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted" - See paragraph 35 - The court further stated that the Charter was intended to govern trials conducted by the governments of Canada mentioned in s. 32 - See paragraphs 35 and 62.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - S. 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 Supreme Court of Canada held that s. 11(h) did not protect the accused from extradition, because the application of s. 11 of the Charter was limited to charges laid by Canadian governments referred to in s. 32 of the Charter - See paragraphs 34 to 41.

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Charged with an offence - Two judges of the Supreme Court of Canada in minority judgments disagreed on whether a person in Canada facing extradition to the United States for offences allegedly committed there was charged with an offence within the meaning of s. 11 of the Charter - See paragraphs 62 and 74.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Principles of fundamental justice - The Supreme Court of Canada stated that in extradition proceedings "the extradition treaty, the extradition hearing in Canada and the exercise of the executive discretion to surrender a fugitive must all conform to the requirements of the Charter, including the principles of fundamental justice" - See paragraph 42.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Principles of fundamental justice - The accused was charged in the United States with the federal of fence of kidnapping and the Ohio state offence of child-stealing - The accused was acquitted of the kidnapping charges and fled to Canada prior to her trial for child-stealing - The accused opposed her extradition on the ground that a trial for a state crime similar to the federal crime for which she had already been tried and acquitted, violated her right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice as guaranteed by s. 7 of the Charter - The Supreme Court of Canada in upholding the extradition order held that extradition for the state offence did not violate s. 7 of the Charter because the offences were two separate of fences, each involving different elements - See paragraphs 42 to 59.

Courts - Topic 3106

Supreme Court of Canada - Jurisdiction - Appeals from provincial courts - Criminal cases - Habeas corpus - The Supreme Court of Canada held that pursuant to s. 719(5) of the Criminal Code there is an appeal to a provincial court and also to the Supreme Court of Canada from habeas corpus proceedings, including extradition matters - See paragraphs 17 to 25.

Courts - Topic 3161

Supreme Court of Canada - Jurisdiction - Appeals from provincial courts - Extradition - General - [See Courts - Topic 3106 above].

Criminal Law - Topic 3706

Preliminary inquiry - Procedure - Pleas or defences - A judge of the Supreme Court of Canada stated that a plea of autrefois acquit is generally considered to be premature at the preliminary inquiry stage and should generally be raised at the trial - See paragraph 62.

Extradition - Topic 3

General - Extradition defined - The Supreme Court of Canada stated that "extradition is the surrender by one state to another, on request, by persons accused or convicted of committing a crime in the state seeking the surrender. This is ordinarily done pursuant to a treaty or other arrangement between those states acting in their sovereign capacity. A surrender under these treaties is primarily an executive act" - See paragraph 26.

Extradition - Topic 703

Extraditable offences - Canada-U.S. treaty - U.S. federal offences v. state offences - Double jeopardy - A judge of the Supreme Court of Canada, in a minority judgment, examined the procedure to follow in determining whether a U.S. federal offence was identical to a state offence - The judge concluded that the U.S. federal offence of kidnapping involved different elements than the Ohio state offence of child-stealing; therefore, the offences were not the same - See paragraphs 70 to 72.

Extradition - Topic 2606

Evidence and procedure before examining judge - Nature of hearing - The Supreme Court of Canada stated that an extradition hearing was similar in nature to a preliminary inquiry - See paragraph 27.

Extradition - Topic 2744

Evidence and procedure before examining judge - Defences - When available - The Supreme Court of Canada stated that the judge at an extradition hearing has no jurisdiction to deal with defences that could be raised at trial, unless the Act or the treaty provide otherwise - See paragraph 28.

Extradition - Topic 2744

Evidence and procedure before examining judge - Defences - When available - The Supreme Court of Canada 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 29 to 32.

Extradition - Topic 2747

Evidence and procedure before examining judge - Defences - Res judicata, including autrefois acquit and autrefois convict - A judge of the Supreme Court of Canada, in a minority judgment, stated that although the special pleas of autrefois acquit or autrefois convict cannot be raised at the preliminary hearing and therefore not at an extradition hearing, they should be allowed where the foreign country in which the trial is to take place does not allow the pleas, if the denial of the defences would violate the principles of fundamental justice - See paragraph 62.

Extradition - Topic 3360

Surrender to demanding country - Considerations - General - The Supreme Court of Canada, discussed considerations which the executive and the courts must consider when dealing with an extradition application - See paragraphs 42 to 58.

Extradition - Topic 3905

Practice - Appeals - Jurisdiction - [See Courts - Topic 3106 above].

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender - The Supreme Court of Canada stated that the decision to extradite a person is an executive decision made pursuant to the applicable treaties and one which the court should not interfere with except in exceptional circumstances - See paragraph 49.

Habeas Corpus - Topic 3284

Practice - Appeals - Jurisdiction - [See Courts - Topic 3106 above].

Statutes - Topic 6910

Operation and effect - Commencement, duration and repeal - By implication - Pursuant to s. 40 of the Supreme Court Act, there was no appeal to the Supreme Court of Canada in proceedings for or upon a writ of habeas corpus - Subsequently s. 719(5) of the Criminal Code was enacted allowing for appeals on the return of a writ of habeas corpus without further mention of s. 40 of the Supreme Court Act - The Supreme Court of Canada held that "to the extent that there is conflict between s. 40 of the Supreme Court Act and s. 719 of the Criminal Code, s. 40 has been impliedly repealed" - See paragraphs 17 to 25.

Cases Noticed:

Bartkus v. Illinois (1959), 359 U.S. 121, refd to. [para. 8].

Federal Republic of Germany and Rauca, Re (1983), 4 C.C.C.(3d) 385 (Ont. C.A.), appld. [para. 9].

Lazier, Re (1899), 29 S.C.R. 630, consd. [para. 18].

Gaynor and Greene v. United States of America (1905), 36 S.C.R. 247, refd to. [para. 18].

Low, Re (1932), 41 O.W.N. 468, refd to. [para. 21].

Ecrement v. Seguin (1921), 39 C.C.C. 113, refd to. [para. 21].

Storgoff, Re, [1945] S.C.R. 526, refd to. [para. 21].

Wattebled, Re (1952), 106 C.C.C. 200 (Que. C.A.), refd to. [para. 21].

Johnston and Shane, Re (1959), 18 D.L.R.(2d) 102 (Ont. C.A.), refd to. [para. 21].

Meier and R., Re (1983), 8 C.C.C.(3d) 210 (B.C.C.A.), refd to. [para. 23].

Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, refd to. [para. 27].

Burley, Re (1865), 1 C.L.J. 34, refd to. [para. 30].

Atkinson v. United States of America Government, [1971] A.C. 197, refd to. [para. 32].

Windsor, Re (1865), 6 B. & S. 522; 122 E.R. 1288 (K.B.), refd to. [para. 33].

Collins (No. 3), Re (1905), 10 C.C.C. 80 (B.C.S.C.), refd to. [para. 33].

R. v. Spencer, [1985] 2 S.C.R. 278; 62 N.R. 81; 11 O.A.C. 207, refd to. [para. 35].

R. v. Heit (1984), 31 Sask.R. 126; 11 C.C.C.(3d) 97 (C.A.), appld. [para. 38].

Ryan, Re (1973), 360 F. Supp. 270 (E.D.N.Y.) refd to. [para. 39].

Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441; 59 N.R. 1, consd. [para. 46].

Altun v. Germany (1983), 5 E.H.R.R. 611, refd to. [para. 47].

Holmes v. Laird (1972), 459 F. 2d 1211 (D.C. Cir.), cert. denied 409 U.S. 869, refd to. [para. 52].

Gallina v. Fraser (1959), 177 F. Supp. 856 (D. Conn.), affd. 278 F. 2d 77 (2d Cir.), cert. denied 364 U.S. 851, refd to. [para. 52].

Neely v. Henkel (No. 1) (1901), 180 U.S. 109, refd to. [para. 53].

Arton, Re, [1896] 1 Q.B. 108, refd to. [para. 54].

Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 57].

R. v. Chiasson (1982), 39 N.B.R.(2d) 631; 103 A.P.R. 631; 135 D.L.R.(3d) 499 (N.B.C.A.), affd. [1984] 1 S.C.R. 266; 56 N.R. 213; 77 N.B.R.(2d) 179; 195 A.P.R. 179, refd to. [para. 57].

United States v. Lanza (1922), 260 U.S. 377, refd to. [para. 58].

Abbate v. United States (1959), 359 U.S. 187, refd to. [para. 58].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119, refd to. [para. 62].

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 67].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7 [paras. 1, 42 to 59, 62, 66, 74]; sect. 11 [paras. 38, 39, 62, 71]; sect. 11(h) [paras. 1, 9, 15, 34 to 41, 55, 62, 66, 67, 74]; sect. 32 [paras. 35, 36, 39].

Criminal Code, R.S.C. 1970, c. C-34, sect. 535 [para. 14]; sect. 719 [paras. 19, 22, 24]; sect. 719(5) [paras. 17, 19].

Extradition Act, R.S.C. 1970, c. E-21, generally [para. 9]; sect. 3 [para. 11]; sect. 13 [paras. 14, 27]; sect. 18 [para. 27].

Extradition Treaty between Canada and the United States of America (1956), articles 2, 4(1)(i) [paras. 11, 32]; 8 [para. 15].

Ohio Revised Code, sect. 2905.04 [para. 5].

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 40 [paras. 17, 18, 20, 24].

United States Code, Title 18 C. 209 (Extradition), sect. 1201 [para. 5].

Authors and Works Noticed:

Clarke, Sir Edward, A Treatise Upon The Law of Extradition (4th Ed. 1903), c. V. [para. 51].

La Forest, Gerard Vincent, Extradition to and From Canada (2nd Ed. 1977), pp. 131-132 [para. 24].

Counsel:

Jack L. Pinkofsky and Stephen Kwinter, for the appellant;

Douglas J.A. Rutherford, Q.C., and Michael C. Blanchflower, for the respondents.

Solicitors of Record:

Jack L. Pinkofsky, Toronto, Ontario, for the appellant;

Roger Tasse, Ottawa, Ontario, for the respondents.

This appeal was heard on December 18, 1985, before Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered on May 14, 1987, in both official languages, and the following opinions were filed:

La Forest, J. (Dickson, C.J.C., Beetz, McIntyre and Le Dain, JJ., concurring) - see paragraphs 1 to 60;

Lamer, J. - see paragraphs 61 to 63;

Wilson, J. - see paragraphs 64 to 74.