United States of America v. Shephard, (1976) 9 N.R. 215 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Beetz and de Grandpré, JJ.
• Date: 05 May 1976
• Citation: (1976), 9 N.R. 215 (SCC),[1976] SCJ No 106 (QL),70 DLR (3d) 136,[1977] 2 SCR 1067,1976 CanLII 8 (SCC),9 NR 215,1976 CanLII 1257 (SCC),1976 CanLII 191 (SCC),[1977] 2 SCR 414,67 DLR (3d) 294,30 CCC (2d) 424,[1976] ACS no 106
• Court: Supreme Court (Canada)

USA v. Shephard (1976), 9 N.R. 215 (SCC)

MLB headnote and full text

United States of America v. Shephard

Indexed As: United States of America v. Shephard

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon, Dickson,

Beetz and de Grandpré, JJ.

May 5, 1976.

Summary:

This case arose out of an application for the extradition of an alleged fugitive to the United States of America. The application was made pursuant to the provisions of the Extradition Act. The application was based on an affidavit of an accomplice of the alleged fugitive. The accomplice had criminal charges outstanding against him which were to be withdrawn after the accomplice testified against the alleged fugitive. The affidavit clearly supported criminal charges against the alleged fugitive. The extradition judge refused to issue a warrant of committal because the evidence was tainted and "manifestly unreliable".

On appeal to the Federal Court of Appeal the appeal was dismissed and the decision of the extradition judge was affirmed - see 5 N.R. 227.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgment of the Federal Court of Appeal was set aside and the case was referred back to the extradition judge for reconsideration. The Supreme Court of Canada stated that the weighing of the evidence and the determining of credibility do not form a part of the function of an extradition judge in exercising his powers under the Extradition Act - see paragraphs 16 and 25.

Laskin, C.J.C., Spence, Dickson and Beetz, JJ., dissenting, in the Supreme Court of Canada, would have dismissed the appeal and would have affirmed the decision of the Federal Court of Appeal. Spence, J., stated that the extradition judge had a statutory discretion to determine whether the evidence was of such a dubious nature as to dangerous - see paragraph 44.

Extradition - Topic 2930

Warrant of committal - Grounds for the issue of a warrant of committal - Evidence - An application for the extradition of an alleged fugitive was made based on an affidavit of an accomplice of the alleged fugitive - The affidavit clearly supported criminal charges against the alleged fugitive - The accomplice when he made the affidavit had criminal charges outstanding against him which were to be withdrawn after the prosecution of the alleged fugitive - The Supreme Court of Canada set aside a refusal by an extradition judge to issue a warrant of committal - The extradition judge stated that the evidence in support of the application was tainted and "manifestly unreliable" - The Supreme Court of Canada stated that the weighing of evidence and the determining of credibility do not form a part of the function of an extradition judge in exercising his powers under the Extradition Act - See paragraphs 16 and 25.

Criminal Law - Topic 5506

Evidence - Testimony of accomplices - Admissibility - The Supreme Court of Canada stated that the testimony of an accomplice, against whom criminal charges are outstanding is admissible and its reception will not void a conviction - See paragraphs 19 and 20.

Cases Noticed:

Commonwealth of Puerto Rico v. Hernandez, [1973] F.C. 1206, dist. [para. 5].

Re Lattimer (1906), 10 C.C.C. 244, refd to. [para. 5].

R. v. Comba, [1938] S.C.R. 396, dist. [para. 9]; folld. [para. 35].

R. v. Knox, [1968] 2 C.C.C. 348, dist. [para. 13].

R. v. Gaudet, [1971] 2 C.C.C. 418, dist. [para. 13].

R. v. Pearce (1963), 40 C.R. 75, dist. [para. 13].

R. v. Sawrenko (1971), 4 C.C.C.(2d) 33, dist. [para. 13].

Hodges case (1838) 2 Lewin 227, refd to. [paras. 13, 36].

Girvin v. The King, 45 S.C.R. 167, folld. [para. 14].

Atwood v. Robins (1788), 1 Leach 464, folld. [para. 17].

R. v. Pipe, 51 Criminal Law Reports 17, refd to. [para. 18].

R. v. Caulfield (1973), 10 C.C.C.(2d) 539, folld. [para. 19].

R. v. Williams (1975), 21 C.C.C.(2d) 1, folld. [para. 20].

Re Commonwealth of Puerto Rico and Hernandez (1973), 15 C.C.C.(2d) 56, folld. [para. 39].

R. v. Robichaud (1951), 12 C.R. 167, folld. [para. 45].

Auger v. Dubeau (1952), 111 C.C.C. 390, folld. [para. 47].

Statutes Noticed:

Extradition Act, R.S.C. 1970, c. E-21, sect. 13 [para. 30]; sect. 18(1) [para. 30].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 475(1) [para. 3].

Authors and Works Noticed:

Williams, Glanville, Criminal Law Review, (1965) [para. 13].

Counsel:

Louis-Phillippe Landry, Q.C., for the appellant;

David Linetsky and Sidney Leithman, for the respondent.

This appeal was heard by the Supreme Court of Canada at Ottawa, Ontario on March 17 and 18, 1976. Judgment was delivered by the Supreme Court of Canada on May 5, 1976 and the following opinions were filed:

RITCHIE, J. - see paragraphs 1 to 26.

SPENCE, J. - dissenting, see paragraphs 27 to 48.

MARTLAND, JUDSON, PIGEON and de GRANDPRE, JJ., concurred with RITCHIE, J.

LASKIN, C.J.C., DICKSON and BEETZ, JJ., concurred with SPENCE, J.