Trinidad and Tobago (Republic) v. Davis, (2008) 433 A.R. 253 (CA)

• Judge: McFadyen, Berger and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 06, 2008
• Citations: (2008), 433 A.R. 253 (CA);2008 ABCA 275

Trinidad & Tobago v. Davis (2008), 433 A.R. 253 (CA);

      429 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.006

Republic of Trinidad and Tobago (appellant) v. Graham Davis (respondent)

(0703-0008-A; 2008 ABCA 275)

Indexed As: Trinidad and Tobago (Republic) v. Davis

Alberta Court of Appeal

McFadyen, Berger and Martin, JJ.A.

August 6, 2008.

Summary:

Davis allegedly grabbed the breast of a bar waitress while vacationing in Trinidad and Tobago. After Davis returned to Canada, Trinidad and Tobago sought his extradition to face a charge of "indecent assault", which was punishable by up to five years' imprisonment. The comparable Canadian criminal offence was sexual assault, a hybrid offence. The Crown did not indicate whether it would elect to proceed summarily or by indictment. Section 3(1)(b)(ii) of the Extradition Act provided that a person could be extradited only if the Canadian equivalent offence was subject to imprisonment of two years or more (i.e., indictable offence).

The Alberta Court of Queen's Bench, in a judgment reported [2006] A.R. Uned. 907, discharged Davis. Absent proof that the hybrid offence would be prosecuted by indictment had it occurred in Canada, the Crown failed to establish that the two year threshold was met. The Crown appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting, allowed the appeal. The Crown was not required to prove that a hybrid offence, if it occurred in Canada, would be prosecuted by indictment rather than summarily. Section 34(1) of the Interpretation Act deemed hybrid offences to be indictable until the Crown elected to proceed summarily. Accordingly, the hybrid offence of sexual assault met the two year requirement of s. 3(1)(b)(ii) of being punishable in Canada by imprisonment of a maximum term of two years or more. The court set aside the discharge and substituted an order for committal of Davis on the offence set out in the authority to proceed.

Criminal Law - Topic 3904

Indictable offences - Choice of procedures - Election by Crown - [See Extradition - Topic 660 ].

Extradition - Topic 660

Extradictable offences - Canada Extradition Act - Hybrid offences - Davis allegedly grabbed the breast of a bar waitress while vacationing in Trinidad and Tobago - After Davis returned to Canada, Trinidad and Tobago sought his extradition to face a charge of "indecent assault", which was punishable by up to five years' imprisonment - The comparable Canadian offence was sexual assault, a hybrid offence - The Crown did not indicate whether it would elect to proceed summarily or by indictment if the offence occurred in Canada - Section 3(1)(b)(ii) of the Extradition Act provided that a person could be extradited only if the equivalent Canadian offence was subject to imprisonment of two years or more (i.e., summary conviction offences not extraditable) - The extradition judge discharged Davis, finding that absent proof that the hybrid offence would be prosecuted by indictment had it occurred in Canada, the Crown failed to establish that the two year threshold was met - The Alberta Court of Appeal allowed the Crown's appeal - The Crown was not required to prove that if the hybrid offence had occurred in Canada, it would elect to proceed by indictment rather than summarily - Section 34(1) of the Interpretation Act deemed hybrid offences to be indictable until the Crown elected to proceed summarily - Accordingly, the hybrid offence of sexual assault met the two year requirement of s. 3(1)(b)(ii) of being punishable in Canada by imprisonment of a maximum term of two years or more - The court set aside the discharge and substituted an order for committal of Davis on the offence set out in the authority to proceed.

Cases Noticed:

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 5].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 9].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 9].

R. v. Paul-Marr (J.) (2005), 234 N.S.R.(2d) 6; 745 A.P.R. 6; 2005 NSCA 73, refd to. [para. 14].

United States of America v. Barrientos (1995), 178 A.R. 1; 110 W.A.C. 1; 36 Alta. L.R.(3d) 59 (C.A.), revd. [1997] 1 S.C.R. 531; 209 N.R. 2; 196 A.R. 112; 141 W.A.C. 112, refd to. [para. 15].

R. v. Ng (K.-F.) (2003), 327 A.R. 215; 296 W.A.C. 215; 2003 ABCA 1, refd to. [para. 18].

United States of America et al. v. McAmmond (2005), 193 O.A.C. 129 (C.A.), refd to. [para. 34].

Ganis v. Canada (Minister of Justice) (2006), 233 B.C.A.C. 243; 386 W.A.C. 243 (C.A.), refd to. [para. 34].

R. v. Mohammadi (A.), [2007] A.R. Uned. 425; 2007 ABPC 43, refd to. [Appendix A].

R. v. Samia (R.G.) (2006), 398 A.R. 368; 2006 ABQB 140, refd to. [Appendix A].

R. v. L.T.W. (2006), 280 Sask.R. 254; 2006 SKQB 9, refd to. [Appendix A].

R. v. Azarsina, [2008] N.J. No. 25 (Prov. Ct.), refd to. [Appendix A].

R. v. Durnford, [2006] N.J. No. 282 (Prov. Ct.), refd to. [Appendix A].

R. v. R.C., [2002] N.J. No. 100 (Prov. Ct.), refd to. [Appendix A].

R. v. Rodgers (C.B.) (1999), 175 Nfld. & P.E.I.R. 173; 537 A.P.R. 173 (Nfld. T.D.), refd to. [Appendix A].

R. v. McManamy (J.P.) (1995), 133 Nfld. & P.E.I.R. 243; 413 A.P.R. 243 (Nfld. T.D.), refd to. [Appendix A].

R. v. Anthony (H.A.) (1993), 113 Nfld. & P.E.I.R. 181; 353 A.P.R. 181 (Nfld. T.D.), refd to. [Appendix A].

R. v. Chipman (H.R.) (1993), 106 Nfld. & P.E.I.R. 74; 334 A.P.R. 74 (Nfld. T.D.), refd to. [Appendix A].

R. v. Collins (R.) (2007), 319 N.B.R.(2d) 196; 823 A.P.R. 196; 2007 NBQB 169, refd to. [Appendix A].

R. v. Blackwell, [1999] Y.J. No. 10 (Terr. Ct.), refd to. [Appendix A].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 3(1)(b)(ii), sect. 15(1), sect. 15(3), sect. 29(1)(a), sect. 40(1) [para. 8].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 34(1) [para. 8].

Counsel:

D.R. Valgardson, Q.C., for the appellant;

D.M. Knisely, for the respondent.

This appeal was heard on November 1, 2007, before McFadyen, Berger and Martin, JJ.A., of the Alberta Court of Appeal.

The memorandum of judgment of the Court was filed on August 6, 2008, and the following opinions were filed:

McFadyen, J.A. (Martin, J.A., concurring) - see paragraphs 1 to 21;

Berger, J.A., dissenting - see paragraphs 22 to 34.