United States of America v. Vandenberg, (1997) 211 A.R. 172 (QB)

• Judge: Brooker, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 18, 1997
• Citations: (1997), 211 A.R. 172 (QB)

USA v. Vandenberg (1997), 211 A.R. 172 (QB)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. DE.079

In The Matter Of the Extradition Act

In The Matter Of Joseph Sidney Vandenberg

(Action No. 9503-2599C2)

Indexed As: United States of America v. Vandenberg

Alberta Court of Queen's Bench

Judicial District of Edmonton

Brooker, J.

December 18, 1997.

Summary:

The United States of America applied to extradite the accused on three charges.

The Alberta Court of Queen's Bench allowed the application respecting one of the charges.

Criminal Law - Topic 1963

Forgery - Elements of offence - [See Extradition - Topic 714 ].

Extradition - Topic 714

Extraditable offences - Canada-U.S. Treaty - Counterfeiting or forgery - The U.S. applied to extradite the accused, alleging, inter alia, that he submitted false information in a Report of Migratory Birds, respecting the species and number of eggs he had taken - The Alberta Court of Queen's Bench held that the alleged activity did not fall within the ambit of s. 397 of the Criminal Code, falsifying a document - The court held that there was evidence that the activity fell within the definition of ss. 366 and 367, forgery, or s. 368, uttering a forged docu­ment - The court declined the accused's invitation to define forgery to require that the docu­ment itself be false, as opposed to the informa­tion in it - The court ordered the accused extradited - See paragraphs 19 to 35.

Extradition - Topic 2646

Evidence and procedure before examining judge - Evidence - General - Hearsay - The U.S. applied to extradite the accused on a charge of, inter alia, failing to appear - Cooper was the District Attorney assigned to prosecute the charges - Cooper stated in his affidavit that "On July 31, 1992, the court found that in failing to appear the defendant had violated condi­tions of his previously issued release order, and the court ordered defendant's $50,000 bail to be forfeited" - The Alberta Court of Queen's Bench held that the statement was hearsay on the issue of whether the accused was obligated to attend personally and the test of necessity was not made out - The court placed no reliance on the statement - See paragraphs 51 to 53.

Extradition - Topic 2658

Evidence and procedure before examining judge - Evidence - General - Evidence required to ground proceedings - The U.S. applied to extradite the accused on a charge of, inter alia, failing to appear - The Alberta Court of Queen's Bench held that there was not sufficient evidence to warrant the accused's committal on that charge - The accused, under his bail order, was required to appear at all proceedings "as required" - The bail order did not specify that the accused had to appear personally, rather than by counsel or agent - The accused did have counsel of record at the relevant time who attended the proceeding in issue by telephone - No one advised the accused of the appearance date, let alone that he was required to attend personally - See paragraphs 36 to 54.

Extradition - Topic 2666

Evidence and procedure before examining judge - Evidence - Foreign documents - Authentication - The United States of America applied to extradite the accused on three charges - The accused objected to the validity of the authentication and certi­fication of the affidavits of Eicher and Helmericks which were attached and marked as exhibits to the affidavit of Cooper - The Alberta Court of Queen's Bench held that Cooper's affidavit was properly certified and authenticated and such authentication and certification extended to all the attachments to Cooper's affidavit, including the affidavits of Eicher and Helmerick - See paragraphs 7 to 15.

Cases Noticed:

United States of America v. Teen (1975), 10 N.R. 271; 24 C.C.C.(2d) 501 (F.C.A.), refd to. [para. 8].

United States of America v. Peletier (1976), 2 C.C.C.(2d) 121 (B.C.S.C.), refd to. [para. 8].

United States of America v. Rennie (1984), 56 A.R. 321; 34 Alta. L.R.(2d) 193 (Q.B.), refd to. [para. 8].

Nixon, Re (1984), 1 O.A.C. 296; 10 C.C.C.(3d) 376 (C.A.), agreed with [para. 13].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 34 C.R.N.S. 207; 70 D.L.R.(3d) 136; 30 C.C.C.(2d) 424, refd to. [para. 17].

R. v. Gaysek (1971), 2 C.C.C.(2d) 545 (S.C.C.), folld. [para. 28].

R. v. Ogilvie (F.) (1993), 54 Q.A.C. 52; 81 C.C.C.(3d) 125 (C.A.), refd to. [para. 29].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 366 [para. 24].

Counsel:

Alexander D. Pringle, Q.C., for the accused;

Shelagh R. Creagh, for the Crown.

This application was heard by Brooker, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 18, 1997.