United States of America v Sheppard,

• Date: 05 May 1976
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(Laskin C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpr JJ.)

United States of America

and

Sheppard

The individual in international law Extradition In general Quantum of evidence necessary for allowing extradition Test of evidence sufficient to justify committal for trial Whether extradition judge concerned with credibility of witnesses and weight of evidence Circumstantial evidence Extradition Act 1970 The law of Canada

Summary: The facts:Section 10(1) of the Extradition Act empowered a judge to issue a warrant for the arrest of the fugitive if the evidence would justify the issue of a warrant had the crime been committed in Canada. Section 18(l)(b) of the Extradition Act provided that the judge should issue a warrant for the committal of the fugitive to a prison if the evidence produced would have justified his committal for trial had the crime been committed in Canada. Sheppard was charged in the United States for violation of the American narcotics law. An application was made for Sheppard's extradition. The evidence relied upon against Sheppard was an affidavit of an accomplice who had been indicted for a narcotics offence. The accomplice was giving evidence for the State as a result of a promise to drop all the charges against him. The extradition judge rejected the application on the ground of insufficiency of the evidence which he held was tainted and unreliable.

Held:The application for extradition was allowed. The test of whether there was sufficient evidence to justify a committal for trial was whether a reasonable jury properly instructed could have returned a verdict of guilty upon that evidence. It was not the function of the extradition judge to decide on the credibility of the witness or the weight of the evidence and he could not reject an application for extradition on that ground.

per Laskin C.J.C. and Spence J. dissenting: The extradition judge had a discretion to decide whether the evidence was of such a dubious nature as to be dangerous. In the present case, the evidence was dangerous and dubious because it was given by a witness who was acting in hope of a reward which had been promised to him.

The following is the text of the judgments delivered in the Court:

Laskin, C.J.C., concurs with Spence, J.

Martland and Judson, JJ., concur with Ritchie, J.

Ritchie, J.:This is an appeal brought with leave of this Court from a judgment of the Federal Court of Appeal dismissing an application made pursuant to s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), for the review of a decision of Mr. Justice Hugessen of the Superior Court of Quebec (as he then was), sitting as an extradition Judge under the Extradition Act, R.S.C. 1970, c. E-21, whereby he held that there was no evidence before him to justify him in issuing the warrant applied for under the Extradition Act for the apprehension of the respondent in respect of extradition crimes committed in the United States and Canada in violation of the narcotic drug laws of the United States.

The relevant provisions of the Extradition Act read as follows:

10(1) Whenever this Part applies, a judge may issue his warrant for the apprehension of a fugitive on a foreign warrant of arrest, or an information or complaint laid before him, and on such evidence or after such proceedings as in his opinion would, subject to this Part, justify the issue of his warrant if the crime of which the fugitive is accused, or of which he is alleged to have been convicted, had been committed in Canada.

Section 18(1) (b):

18(1) The judge shall issue his warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,

.....

• (b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify his committal for trial, if the crime had been committed in Canada.

(Emphasis added.) Section 13 of the Act which establishes the procedure to be followed at the extradition hearing provides that:

13. The fugitive shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.

The emphasis throughout is my own.

These sections of the Act must, I think, be read in conjunction with s. 475 [am. R.S.C. 1970, c. 2 (2nd Supp.), s. 8] of the Criminal Code which defines the duty of a justice in deciding whether or not an accused should be committed for trial. The section provides:

475(1) When all the evidence has been taken by the justice he shall,

• (a) if in his opinion the evidence is sufficient to put the accused on trial,

  • (i) commit the accused for trial, or

.....

• (b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial.

(The italics are my own.)

In applying these sections to the case before him, the learned Judge sitting as an extradition Judge, adopted the following test [19 C.C.C. (2d) 35 at p. 37 (No. 2)]:

The test laid down by s. 18(1) (b) of the Extradition Act is whether the evidence is such as would justify the committal of Mr. Sheppard for trial if the alleged crime had been committed in Canada. In my view, this is the same test as that which is applied at trial, when, at the conclusion of the Crown's case, a motion, is made for a directed verdict.

This test was recognized in the unanimous judgment of the Federal Court of Appeal in Re Commonwealth of Puerto Rico and Hernandez (No. 2)INTLUNK[1] (1973), 15 C.C.C. (2d) 56, 42 D.L.R. (3d) 541, [1973] 2 F.C. 1206. Mr. Justice Hugessen

also made reference to the view expressed by the Chief Justice of the Northwest Territories (Sifton, C.J.) sitting as an extradition Judge in the ease of Re Latimer (1906), 10 C.C.C. 244, where he said at p. 247:

The duty that is laid upon me is to consider as to whether the evidence that has been adduced in the absence of contradiction would be such as to justify a magistrate in a similar case under our law committing him for the purpose of standing his trial. Practically it amounts to the same thing as if in a trial with a Judge and jury, there was such evidence that the Judge would not be justified in withdrawing the case from the jury.

I agree that the duty imposed upon a justice under s. 475 (1) is the same as that which governs a trial Judge sitting with a jury in deciding whether the evidence is sufficient to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The justice, in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

In the present case, the evidence before the learned extradition Judge was an affidavit of one Albert E. Herrmann made in the State of Wisconsin which disclosed that the respondent had been actively engaged in the drug trade in that State. The affidavit not only disclosed that the deponent had been an accomplice of the respondent in the alleged illegal operations of the respondent, but also that he had been indicted for narcotic offences in Wisconsin, and it then continues as follows:

An attorney has been appointed to represent me, and I am presently free on bond. I make this affidavit freely and voluntarily with full knowledge of my legal rights after the United States Attorney's office promised to dismiss all but one of the narcotics charges against me, which would be held open until after I had testified before the Grand Jury, and in any subsequent criminal prosecutions arising out of my Grand Jury testimony. The final narcotic charge against me would be dismissed upon my completion of all of my court appearances and testimony in criminal prosecutions against my co-conspirators.

In dealing with the grounds upon which the Judge sitting at a trial should withdraw the case from the jury, the learned trial Judge had occasion to say [p. 37]:

it seems to me that there is now a considerable body of jurisprudence and authority to the effect that the trial Judge can and should intervene to withdraw the case from the hands of the jurors where the Crown's evidence is so manifestly unreliable or of so doubtful or tainted a nature as to make it dangerous and unjust to put the accused to his defence on the basis thereof.

(The italics are my own.)

For this proposition the authority cited is a passage from the judgment of Sir Lyman Duff in this Court in R. v. CombaUNKUNK (1938), 70 C.C.C. 205 at p. 238, [1938] 3 D.L.R. 719 at p. 721, [1938] S.C.R. 396, at pp. 3978, where he said:

the learned trial Judge ought, on the application made by counsel for the prisoner at the close of the evidence for the Crown, to have told the jury that in view of the dubious nature of the evidence, it would be unsafe to find the prisoner guilty and to have directed them to return a verdict of acquittal accordingly.

It is to be observed that there was no suggestion in the Comba case that any of the evidence called by the Crown was either tainted or unreliable. It came from witnesses whose integrity was at no time put in question and who testified as to a variety of circumstances which had excited enough suspicion against the accused to occasion his arrest and trial, but which taken together did not establish his guilt in accordance with the accepted standards of proof in such cases which are described by Duff, C.J.C., in the following passage [pp. 2378 C.C.C, p. 720 D.L.R., p. 397 S.C.R.]:

It is admitted by the Crown, as the fact is, that the verdict rests solely upon a basis of circumstantial evidence. In such...