Karleton Lewis Armstrong (Applicant)
v.
The State of Wisconsin and The United States of
America (Respondents)
Court of Appeal, Thurlow J., Cameron and
Swept D.JJ.—Toronto, December 5, 6, 7, 8 and
9, 1972; Ottawa, January 5, 1973.
Extradition—Civil rights—Judicial review—Extradition
hearing—Alleged murder committed in Wisconsin—Affida-
vits admitted in evidence—No opportunity given fugitive to
cross-examine deponents—Whether denial of "due process of
law" and of fundamental justice—Whether category of crime
in Wisconsin required to be proved—Whether crime of politi
cal character—Canada-U.S.A. extradition treaty—Judge
without authority to decide—Extradition Act, R.S. 1970, c.
E-21, s. 16--^ Canadian Bill of Rights, s. 1(a), 2(e).
Application was made under section 28 of the Federal
Court Act to set aside a committal warrant issued by an
extradition judge for the extradition of a fugitive to the
United States to be tried for arson and murder committed in
the State of Wisconsin.
Held, dismissing the application:
1. Section 16 of the Extradition Act permits affidavits to
be admitted in evidence on an extradition hearing, and
failure to afford the fugitive an opportunity to cross-exam
ine the deponents is not a denial of due process of law
guaranteed by section 1(a) of the Canadian Bill of Rights
nor of his right under section 2(e) thereof to a fair hearing in
accordance with the principles of fundamental justice. Curr
v. The Queen [1972] S.C.R. 889; University of Ceylon v.
Fernando [1960] 1 W.L.R. 223, discussed.
2. If, as here, the evidence establishes a prima facie case
of murder by the law of Canada, the extradition judge is not
required to determine the category of the alleged murder by
the law of Wisconsin.
3. Having regard to the provisions of the extradition
treaty between Canada and the United States of America
and. the provisions of the Extradition Act, an extradition
judge is not authorized to decide that the offence of which a
fugitive is accused is of a political character or that it is for
that reason not an extradition crime or to discharge the
fugitive for that reason. In re Castioni [1891] 1 Q.B. 149; Re
Siletti (1902) 71 L.J.K.B. 935; R. v. Governor of Brixton
Prison, ex parte Kolczynski [1955] 1 All E.R. 31; Re Louis
Levi (1897) 1 C.C.C. 74, discussed.
JUDICIAL review.
COUNSEL:
C. Ruby and E. L. Greenspan for applicant.
A. M. Cooper, Q.C., for respondents.
SOLICITORS:
Pomerant, Pomerant and Greenspan,
Toronto, for applicant.
A. M. Cooper, Toronto, for respondents.
THURLOW J.—This is an application under
section 28 of the Federal Court Act to review
and set aside a warrant issued under the Extra
dition Act by Judge H. Waisberg committing the
applicant, Karleton Lewis Armstrong, to prison
to await his extradition to the United States for
trial on four charges of arson and one charge of
murder contrary to the statutes of the State of
Wisconsin.
The application was based on seven grounds
which I shall set out and deal with in turn but
before doing so it seems desirable, in view of
some of the arguments that were presented, to
re-emphasize that a section 28 application is not
an appeal. It bears some resemblance to an
appeal on a question of law but the Court is not
empowered on such an application to review the
decision on questions of fact save to the limited
extent mentioned in section 28(1)(c) or to sub
stitute its own judgment on questions of fact or
to give the judgment that the tribunal against
whose decision the proceeding is brought should
have given. Moreover, the relief that is obtain
able may be afforded only on the grounds set
out in section 28, that is to say, on the basis that
the tribunal whose decision or order is attacked:
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
The first of the seven points raised was
alleged error in law on the part of Judge Wais-
berg in accepting into evidence and acting upon
affidavits tendered in support of the charges
without permitting the applicant full opportunity
to cross-examine the witnesses who gave their
evidence by way of those affidavits. The sub
mission of the applicant was that though on the
face of it section 16 of the Extradition Act
permits the reception of such affidavits into
evidence, and though the jurisprudence in
Canada since 1877 confirms the practice of
admitting them, it has nevertheless become
necessary since the enactment of the Canadian
Bill of Rights, either to hold section 16 inopera
tive or to so construe it as to render such
affidavits inadmissible when no opportunity has
been affored to the fugitive to cross-examine
the deponents. It was urged that without such
an opportunity being afforded the admission of
the affidavits constitutes (1) an infringement of
the fugitive's right under section 1(a) of the
Canadian Bill of Rights to enjoy his liberty and
not to be deprived of it without due process of
law; and (2) a deprivation of his right under
section 2(e) of that statute to a fair hearing in
accordance with the principles of fundamental
justice for the determination of his rights.
Turning first to section 1(a) I do not think as
a matter of interpretation that the "due process"
provision of that section in its relation to extra
dition proceedings calls for any further or dif
ferent legal process or any process of a higher
standard than prevailed in such proceedings
prior to its enactment saving if and in so far as
the provisions of section 2 may have grafted on
what was formerly regarded as "due process"
of law requirements of a higher standard than
formerly prevailed for the protèction of the
human rights and fundamental freedoms of the
individual recognized and declared by section
1(a). (See Curr v. The Queen [1972] S.C.R. 889
per Ritchie J. at page 914 and per Laskin J. at
\page 892.) If section 2(e) imposed some new
'requirement which is not observed the proce
d ure may not be "due process" within section
1(a) but, if it does not, it does not seem to me
that it can be affirmed that a failure of "due
process" is involved when the established legal
procedure has been followed. The substantial
question to be resolved on the Bill of Rights as I
see it is therefore whether the established
procedure involved the denial to the applicant
of his right under section 2(e) to "a fair hearing
in accordance with the principles of fundamen
tal justice for the determination of his rights and
obligations."
As applied to a case of this kind the meaning
of this expression in my opinion does not imply
anything different in substance from that of the
expression "a principle of natural justice" in
section 28(1)(a) of the Federal Court Act. Both
expressions imply a certain standard of proce
dure which includes apprising the individual of
what it is that is charged against him and of the
facts to be considered in support of the accusa
tion and affording him a fair opportunity to
answer such facts before a decision determining
his rights or obligations is reached. It has fre
quently been said that this does not necessarily
call for a formal trial or trial procedures and it is
abundantly clear that what is required to give
effect to the principles involved depends on the
particular situation. A useful summary of this is
found in the judgment of the Privy Council in
University of Ceylon v. Fernando [1960] 1
W.L.R. 223 at page 231, a case which involved
alleged denial of cross-examination, where Lord
Jenkins said:
Accordingly (apart from a subsidiary question as to the
jurisdiction of the courts in Ceylon to grant declaratory
relief in such a case), the present appeal resolves itself into
the question whether this inquiry was conducted with due
regard to the rights accorded by the principles of natural
justice to the plaintiff as the person against whom it was
directed.
These rights have been defined in varying language in a
large number of cases covering a wide field. Their Lordships
do not propose to review these authorities at length, but
would observe that the question whether the requirements
of natural justice have been met by the procedure adopted
in any given case must depend to a great extent on the facts
and circumstances of the case in point. As Tucker L.J. said
in Russell v. Duke of Norfolk (1948) 65 T.L.R. 225, 231;
There are, in my view, no words which are of universal
application to every kind of inquiry and every kind of
domestic tribunal. The requirements of natural justice
must depend on the circumstances of the case, the nature
of the inquiry, the rules under which the tribunal is acting,
the subject-matter that is being dealt with, and so forth.
In the earlier case of General Medical Council v. Spackman
[1943] A.C. 627, 638; Lord Atkin expressed a similar view
in these words:
Some analogy exists, no doubt, between the various
procedures of this and other not strictly judicial bodies,
but I cannot think that the procedure which may be very
just in deciding whether to close a school or an insanitary
house is necessarily right in deciding a charge of infamous
conduct against a professional man. I would, therefore,
demur to any suggestion that the words of Lord Loreburn
L.C. in Board of Education v. Rice [1911] A.C. 179, 182;
afford a complete guide to the General Medical Council in
the exercise of their duties.
With these reservations as to the utility of general defini
tions in this branch of the law, it appears to their Lordships
that Lord Loreburn's much quoted statement in Board of
Education v. Rice still affords as good a general definition as
any of the nature of and limits upon the requirements of
natural justice in this kind of case. Its effect is conveniently
stated in this passage from the speech of Viscount Haldane
L.C. in Local Government Board v. Arlidge [1915] A.C. 120,
132-133; where he cites it with approval in the following
words:
I agree with the view expressed in an analogous case by
my noble and learned friend Lord Loreburn. In Board of
Education v. Rice he laid down that, in disposing of a
question which was the subject of an appeal to it, the
Board of Education was under a duty to act in good faith,
and to listen fairly to both sides, inasmuch as that was a
duty which lay on every one who decided anything. But
he went on to say that he did not think it was bound to
treat such a question as though it were a trial. The Board
had no power to administer an oath, and need not examine
witnesses. It could, he thought, obtain information in any
way it thought best, always giving a fair opportunity to
those who were parties in the controversy to correct or
contradict any relevant statement prejudicial to their
view.
From the many other citations which might be made, their
Lordships would select the following succinct statement
from the judgment of this Board in De Verteuil v. Knaggs
[1918] A.C. 557, 560;:
Their Lordships are of opinion that in making such an
inquiry there is, apart from special circumstances, a duty
of giving to any person against whom the complaint is
made a fair opportunity to make any relevant statement
which he may desire to bring forward and a fair opportu
nity to correct or controvert any relevant statement
brought forward to his prejudice.
The last general statement as to the requirements of
natural justice to which their Lordships would refer is that
of Harman J. (as he then was) in Byrne v. Kinematograph
Renters Society Ltd., [1958] 1 W.L.R. 762, 784; of which
their Lordships would express their approval. The learned
judge said this:
What then are the requirements of natural justice in a case
of this kind? First, I think that the person accused should
know the nature of the accusation made; secondly, that he
should be given an opportunity to state his case; and,
thirdly, of course, that the tribunal should act in good
faith. I do not myself think that there really is anything
more.
The particular problem here is to apply these
principles to extradition proceedings in which
evidence of the commission of the alleged extra
dition crime is given by affidavit without oppor
tunity to the fugitive to cross-examine.
Adverting to the second, third and fourth
requirements referred to in the passage cited by
Lord Jenkins from Russell v. Duke of Norfolk it
is to be observed that in the proceedings before
an extradition judge the nature of the inquiry to
be made, the rules under which the tribunal is to
act and the subject-matter to be dealt with by it
are all matters prescribed by statute. The statute
provides that the extradition judge is to 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 proceeding is thus
not a trial of guilt or innocence but is in the
nature of an inquiry. The extradition judge is to
receive upon oath the evidence of any witness
tendered to show the truth of the charge and in
like manner is to receive any evidence tendered
to show that the crime of which the fugitive is
accused is an offence of a political character or
is for any other reason not an extradition crime
or that the proceedings are being taken with a
view to prosecute or punish him for an offence
of a political character. With respect to any
witnesses called by the prosecution there is no
reason to doubt that in this procedure the right
of the fugitive to cross-examine arises as it does
under section 468(1)(a) of the Criminal Code.
Such right of cross-examination, however, has
its origin not in the requirements of natural
justice but in the statute, just as the whole
procedure for preliminary inquiries is statutory,
and the right to cross-examine arises only in so
far as the statute provides for it. There are other
types of admissible evidence in respect of which
no right of testing by cross-examination arises
at preliminary hearings and while the Extradi
tion Act provides that the procedure is to follow
that of a preliminary inquiry it is to do so only
as nearly as may be, and the use in such pro
ceedings of affidavits in proof of the alleged
crime is specifically provided for. If the pro
ceedings were in the nature of a trial on the
subject of guilt or innocence the absence of a
right or opportunity to test the evidence of the
applicants by cross-examination might well be a
serious objection to the fairness and justice of
such a rule but, as already pointed out, that is
not the situation. The hearing is a mere inquiry
and what the extradition judge has to determine
is not the guilt or innocence of the fugitive but
the question whether the evidence produced
would justify his committal for trial. The fugi
tive is entitled to be made aware, by the reading
of the affidavits presented, of the case against
him, upon which his extradition for trial may be
ordered, but he is not required to answer that
case and even if he elects to do so, by evidence
or otherwise, the judge's function remains the
same. He is not empowered to decide the merits
of guilt or innocence, or to pass upon the credi
bility of witnesses but simply to determine whe
ther there is a sufficient case against the fugitive
to justify his committal. The trial and determi
nation of the fugitive's rights with respect to the
charge are left to the trial court.
Having regard to these features of the nature
of an extradition proceeding, the rules under
which the tribunal acts and the subject-matter
that is being dealt with, it does not seem to me
that any denial of natural or fundamental justice
for the determination of the fugitive's rights is
involved in his not being afforded an opportu
nity to cross-examine the deponents. He is
being apprised of what he is to face when his
trial is held, and he is afforded an opportunity to
state, if he wishes to do so, his side of the
matter as well as to point out weaknesses or
gaps in the evidence presented and to urge
reasons why he should not be required to face
trial in the demanding state. The existence of an
extradition arrangement with the country seek
ing the extradition must, as I see it, be taken as
recognition by this country of the fundamental
fairness of the procedures of the requesting
country for the determination of the fugitive's
guilt or innocence.
Moreover, adverting now to the first of the
requirements of natural justice referred to in the
passage cited from Russell v. Duke of Norfolk,
there is no occasion in the extradition procedure
to establish the guilt of the fugitive beyond
reasonable doubt and the procedure is not to be
regarded as one in which techniques which play
an important part in a criminal trial for the
demolition of a prosecution case are appropriate
or required. Demolition of a prosecution case by
successful cross-examination of the prosecution
witnesses is of the first importance where the
issue of guilt or innocence is being tried and
particularly so where that issue turns on whe
ther the evidence of a prosecution witness or
witnesses is to be believed in preference to that
of witnesses for the defence. Here no such issue
ever arose or could arise. Not only was the guilt
or innocence of the fugitive not being tried but
there never was any question before the extradi
tion judge of a denial of guilt by the defence to
be weighed against the evidence contained in
the affidavits in question. I do not think there
fore that the failure to afford the applicant an
opportunity to cross-examine the applicants in a
proceeding of the kind here in question con
stituted a denial of natural justice within the
meaning of section 28 of the Federal Court Act
or of "fundamental justice for the determination
of his rights" within the meaning of the Canadi-
an Bill of Rights.
The second and third points raised by the
applicant relate to the charge of murder and
may be dealt with together. The alleged murder
was the killing of Dr. Robert Fassnacht who
was in a building known as Sterling Hall when
the applicant, and three others, allegedly placed
on a ramp adjacent to the building, and detonat
ed, a bomb equivalent to some 3,400 sticks of
dynamite thereby causing severe damage to the
building and killing Dr. Fassnacht. A few
minutes before the explosion someone tele
phoned to Madison police a message as follows:
O.K. pigs, now listen and listen good. There is a bomb in the
Army Math Research Centre, the University, set to go off in
five minutes. Clear the building. Get everyone out. Warn the
hospital. This is no bullshit, man.
There is prima facie evidence that the appli
cant was one of the persons directly involved in
and responsible for the bombing. There was also
evidence that Dr. Fassnacht was either in or
near his laboratory on the ground floor level of
the building near the spot where the bomb was
detonated, that there were lights burning in his
laboratory and that at ground level one could
see through the windows into the laboratory.
The evidence further showed that Wisconsin
law distinguishes between murder with intent to
kill, known as first degree murder, murder by
causing death to another person by conduct
imminently dangerous to another and evincing a
depraved mind, regardless of human life, known
as second degree murder, and murder in the
course of committing or attempting to commit a
felony by causing the death of another as a
natural and probable consequence of the com
mission of or attempt to commit the felony,
known as third degree murder and that the
maximum punishment that may be imposed
varies according to the degree of the murder.
The two points raised by the applicant were
that the learned judge erred (1) in refusing to
decide whether or not there was sufficient evid
ence to justify the extradition of the applicant
on the specific charge for which extradition was
sought, namely first degree murder, and (2) in
holding that the facts presented amounted to a
prima facie case of murder according to the law
of Canada.
In my opinion the placing and detonation of
such a bomb in the circumstances disclosed by
the evidence in close proximity to a building in
which there were likely to be people, is evid
ence upon which a jury in Canada might con
clude either that the perpetrator intended to
cause the death of persons known to be in the
building or neighbourhood—the message to the
Madison police from which counsel for the
applicant sought to draw inferences favourable
to his client being, as thus adopted, some evid
ence of knowledge that there were persons in
• the building at the time of the placing of the
bomb—or that the placing and detonating of the
bomb for the unlawful purpose of destroying
the building was conduct which the perpetrators
knew or ought to have known to be likely to
cause the death of persons in or near the build
ing, in any of which cases it would be open to
the jury to return a verdict of guilty of murder.
In my view therefore there is no merit in the
applicant's contention that the facts would not
warrant committal for trial on a charge of
murder in Canada and to my mind there is
nothing in R. v. Hughes (1951) 84 C.L.R. 170 on
which applicant's counsel relied, which would
serve to support his contention.
Nor do I think there is substance in the con
tention that the learned judge should have deter
mined the category of the alleged murder under
Wisconsin law. The treaty provides for extradi
tion for murder and section 18(1)(b) of the
Extradition Act provides for committal by the
extradition judge if such evidence of the extra
dition crime is produced as would according to
the law of Canada, subject to Part I of the Act,
justify committal for trial if the crime had been
committed in Canada. The extradition crime
here in question is murder in the killing of Dr.
Fassnacht and as the evidence would establish a
prima facie case had the killing occurred in
Canada the test prescribed by section 18(1)(b),
as I see it, is satisfied. From that point it is for
the courts of Wisconsin to determine into what
category of murder, if any, the alleged offence
falls under the law of that state and there was
and is no necessity for the extradition judge to
determine it. Cases could undoubtedly arise
where what a requesting state alleges to be
murder under its law would not amount to the
offence of murder within the meaning of an
extradition treaty, for example, if that law
defined murder as including the mere act of
assisting the murderer after the event, but, as I
see it, that would not be murder under the law
of Canada and the case would fail the test
prescribed by section 18(1)(b). Here the learned
judge has expressly found that both murder and
arson are crimes both in Canada and in Wiscon-
sin and that the crimes are essentially similar in
both countries. As I read his reasons the learned
judge also found that the evidence was suffi
cient to justify committal of the applicant for
trial for the crime of murder as set out in exhibit
2 which (page 153 of the appeal book) refers in
this respect to first degree murder contrary to
section 940.01(1) of the Wisconsin statutes. In
my view, as I have already indicated, the evid
ence was such that a jury would have been
justified in finding that the killing of Dr. Fass-
nacht was murder with intent to kill and thus
first degree murder under the Wisconsin statute
and I do not think it can be said that the same
evidence would not justify committal for trial
for first degree murder. Nor do I think it was
incumbent on the learned judge to go further
and decide into what other categories of murder
under the Wisconsin statutes the killing of Dr.
Fassnacht might fall.
The applicant's fourth point was that the
learned judge erred in refusing to admit into
evidence a certain portion of the testimony of
Philip Ball relating to a conversation that he had
with the applicant during the fall of 1969. It was
submitted that evidence of this conversation
was admissible to prove the state of mind of the
applicant and, though concerned with the appli
cant's opinions about a situation between a par
ticular landlord and his tenant, would have
established the applicant's state of mind with
respect to his political views and his attitudes as
to how to bring about changes in the United
States of America in accordance with his politi
cal views and would thus have established a
political motive for the commission by him of
the offences in question. As a further basis for
the admission of evidence of the statement in
question it was submitted that it was implicit in
the prosecution case that the position of the
applicant that the offences were of a political
character was of recent contrivance and that the
evidence was admissible to rebut such claim of
recent contrivance.
In my opinion the evidence of such a conver
sation was properly excluded by the learned
judge.
There was no basis for admission at the appli
cant's request of a statement made by him
several months prior to the first of the offences
in question as evidence of his state of mind or
motivation either at that time or with respect to
the subject-matter of the statement. Even less
was there any basis for its admission as evid
ence of the applicant's state of mind or purpose
or motivation several months later and with
respect to a different subject-matter. Moreover,
since no admissible statement by the applicant
was put in evidence by the prosecutor and since
the applicant did not give evidence of his moti
vation or state of mind or purpose at the times
of the offences here in question there was not
and could not be any issue of recent contrivance
raised by the prosecutor to furnish a basis for
showing by the tendered evidence that the appli
cant's story was of recent contrivance.
The fifth point was that the learned judge
erred in law in accepting evidence tendered by
the prosecution by way of reply at the conclu
sion of the evidence offered on behalf of the
applicant. The substance of the argument put
forward on this point was that while it lay
within the discretion of the learned judge to
receive the evidence he ought not to have done
so at that stage since it was apparent while the
prosecution was presenting its case in chief that
the issue of the political character of the
offences was being raised and such evidence as
the prosecution had on this issue ought to have
been given at that stage rather than in reply. In
our view no ground was shown for interference
with the exercise of his discretion by the
learned judge and there is no merit in the con
tention and we so indicated at the hearing by
not calling on counsel for the State of Wiscon-
sin on the point.
This brings me to the important issue in the
case of whether the offences in question were
of a political character within the meaning of
the Extradition Act. The learned judge's conclu
sion that the offences were not of a political
character was attacked in points 6 and 7 respec
tively as erroneous in law
(a) in that the learned judge refused to accept uncon-
tradicted evidence offered by the defence that the crimes
were of a political character and thereby based his deci
sion or order on an erroneous finding of fact without
regard for the material before him; and
(b) in that in deciding that the crimes were not of a
political character he refused to exercise his jurisdiction,
pursuant to section 21 of the Extradition Act.
The section referred to reads:
21. No fugitive is liable to surrender under this Part if it
appears
(a) that the offence in respect of which proceedings are
taken under this Act is one of a political character, or
(b) that such proceedings are being taken with a view to
prosecute or punish him for an offence of a political
character.
The applicant's two points were argued to
gether and to my mind they are but two ways of
putting the same contention viz., that the
learned judge's finding that the offences in
question were not of a political character was an
erroneous finding made in a perverse or capri
cious manner or without regard for the material
before him. No attack was made, however, on
the learned judge's finding that the proceedings
had not been taken with a view to prosecute or
punish the applicant for an offence of a political
character and in the course of argument counsel
for the applicant expressly disclaimed any
attack on that particular conclusion of the
learned judge.
In the course of hearing argument on the
issue the Court raised the further question whe
ther the learned judge had jurisdiction to deter
mine the political character or otherwise of the
alleged offences or to discharge the applicant if
he should be of the opinion that the political
character' of the offences was established. On
this point counsel for the applicant took the
position that the extradition judge had such
jurisdiction. Counsel for the State of Wisconsin
supported the view that the judge did not have
such jurisdiction but expressed his preference
for a determination by this Court upholding the
learned judge's conclusion on the merits.
Since there is an existing extradition arrange
ment between Canada and the United States of
America the applicable law, as I see it, is section
3 of the Extradition Act which provides as
follows:
3. In the case of any foreign state with which there is an
extradition arrangement, this Part applies during the con
tinuance of such arrangement; but no provision of this Part
that is inconsistent with any of the terms of the arrangement
has effect to contravene the arrangement; and this Part shall
be so read and construed as to provide for the execution of
the arrangement.
Article 10 of the Ashburton Treaty, 1842,
provided that:
ARTICLE X
It is agreed that the United States and Her Britannic
Majesty shall, upon mutual requisitions by them or their
Ministers, officers, or authorities, respectively made, deliver
up to justice all persons who, being charged with the crime
of murder, or assault with intent to commit murder, or
piracy, or arson, or robbery, or forgery, or the utterance of
forged paper, committed within the jurisdiction of either,
shall seek an asylum, or shall be found within the territories
of the other: Provided that this shall only be done upon such
evidence of criminality as, according to the laws of the place
where the fugitive or person so charged shall be found,
would justify his apprehension and commitment for trial, if
the crime or offence had there been committed; and the
respective judges and other magistrates of the two Govern
ments shall have power, jurisdiction, and authority, upon
complaint made under oath, to issue a warrant for the
apprehension of the fugitive or person so charged, that he
may be brought before such judges or other magistrates,
respectively, to the end that the evidence of criminality may
be heard and considered; and if, on such hearing, the
evidence be deemed sufficient to sustain the charge, it shall
be the duty of the examining judge or magistrate to certify
the same to the proper executive authority, that a warrant
may issue for the surrender of such fugitive. The expense of
such apprehension and delivery shall be borne and defrayed
by the party who makes the requisition and receives the
fugitive.
This arrangement predated the introduction
into the Extradition Act in 1877 of the forerun
ner of the present section 21 providing for not
surrendering fugitives for political offences and
the introduction into the treaty in 1889 of provi-
sions in respect of the same subject-matter. The
treaty provisions read:
ARTICLE II
A fugitive criminal shall not be surrendered, if the offense
in respect of which his surrender is demanded be one of a
political character, or if he proves that the requisition for his
surrender has in fact been made with a view to try or punish
him for an offense of a political character.
No person surrendered by either of the High Contracting
Parties to the other shall be triable or tried, or be punished
for any political crime or offense, or for any act connected
therewith, committed previously to his extradition.
If any question shall arise as to whether a case comes
within the provisions of this Article, the decision of the
authorities of the Government in whose jurisdictiôn the
fugitive shall be at the time shall be final.
ARTICLE III
No person surrendered by or to either of the High Con
tracting Parties shall be triable or be tried for any crime or
offense committed prior to his extradition, other than the
offense for which he was surrendered, until he shall have
had an opportunity of returning to the country from which
he was surrendered.
It would seem from the second paragraph of
the foregoing that the political character of the
offence might conceivably be raised as a
defence at the trial in the demanding state even
though it would not be available if the state
acquired jurisdiction other than through extradi
tion from Canada. But whether it would consti
tute a defence at trial or not it does not appear
to me that anything in the language of the treaty
requires or authorizes an extradition judge to
determine the question. What he is to consider
is the evidence of criminality and its sufficiency
to sustain the charge and if the evidence is
sufficient for that purpose he is to commit.
The statute itself, in section 9, authorizes all
the designated judges to "act judicially in extra
dition matters under this Part" and for that
purpose confers on them "all the powers and
jurisdiction of any judge or magistrate of the
province" but goes on to provide that this shall
not be construed as conferring jurisdiction in
habeas corpus matters. What the judge is to do
in exercise of his authority under the Extradi-
tion Act is specifically set out in sections 13, 14,
15, 18 and 19. These sections provide:
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.
14. The judge shall receive upon oath, or affirmation, if
affirmation is allowed by law, the evidence of any witness
tendered to show the truth of the charge or the fact of the
conviction.
15. The judge shall receive, in like manner, any evidence
tendered to show that the crime of which the fugitive is
accused or alleged to have been convicted is an offence of a
political character, or is, for any other reason, not an extra
dition crime, or that the proceedings are being taken with a
view to prosecute or punish him for an offence of a political
character.
18. (1) The judge shall issue his warrant for the commit
tal of the fugitive to the nearest convenient prison, there to
remain until surrendered to the foreign state, or discharged
according to law,
(a) in the case of a fugitive alleged to have been convict
ed of an extradition crime, if such evidence is produced as
would, according to the law of Canada, subject to this
Part, prove that he was so convicted, and
(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 commit
tal for trial, if the crime had been committed in Canada.
(2) If such evidence is not produced, the judge shall order
him to be discharged.
19. Where the judge commits a fugitive to prison, he
shall, on such committal,
(a) inform him that he will not be surrendered until after
the expiration of fifteen days, and that he has a right to
apply for a writ of habeas corpus, and
(b) transmit to the Minister of Justice a certificate of the
committal, with a copy of all the evidence taken before
him not already so transmitted, and such report upon the
case as he thinks fit.
It will be observed that while the extradition
judge is required by section 15 to receive evid
ence tendered to show the political character of
the offence etc., nowhere in these provisions is
he empowered to decide that question. More
over, having regard to the definition in section 2
and to the extradition arrangement between
Canada and the United States the expression
"extradition crime" in these sections must be
treated in this case as meaning "any crime
described in such arrangement" and when sec-
tions 13, 14, 15, 18 and 19 are read with this
definition in mind it does not appear to me that
the extradition judge is authorized to decide that
the offence is of a political character or that it is
for that reason not an extradition crime or to
discharge the fugitive for such a reason.
Moreover, a power in the extradition judge to
discharge the fugitive for such a reason, if not
inconsistent with, is at least not easy to recon
cile with the jurisprudence, some of which was
cited in the judgment of this Court in this case
on the determination of its jurisdiction under
section 28, which holds that a fugitive dis
charged by an extradition judge is liable to
re-arrest and to further extradition proceedings
and possible committal for extradition before
another extradition judge in respect of the same
offence and even on the same evidence. The
result might be that the question of the political
character of the offence would be open for
determination before successive extradition
judges before whom the matter might be pur
sued. It is I think more consistent and easier to
reconcile with the jurisprudence which I have
mentioned to regard the provisions requiring the
extradition judge to receive any evidence ten
dered to show that the offence was one of a
political character as requiring the judge to
receive such evidence for the purpose of having
it recorded for use by the Minister of Justice or
by a court which has jurisdiction to determine
the matter.
The question was considered at some length
by Hawkins J. in the course of his reasons in In
re Castioni [1891] 1 Q.B. 149 where at page 161
he said:
Again, with reference to the question of whether the magis
trate has a right to deal with a man and to deal with his
objection to being committed for trial for an extradition
crime, I entertain no doubt that the magistrate has no right
and no jurisdiction to find finally, as against the prisoner,
whether or not he has committed that crime which he is
charged with having committed, or whether that crime is one
of a political character. I desire to call attention to certain
provisions in the Extradition Act. First, by s. 3, a fugitive
criminal shall not be surrendered if the offence in respect of
which his surrender is demanded is one of a political charac
ter, such as treason, or other matters, or if he proves to the
satisfaction of the police magistrate that the requisition for
his surrender has in fact been made with a view to try him
for an offence of a political character. These latter words
undoubtedly tend to shew that Sir Charles Russell was
wrong in the view that he took that the onus is upon those
who seek for the extradition to shew that the offence
committed is not of a political character, because it must be
upon the person who seeks to be discharged on the ground
that his surrender is, in fact, asked for with the view to
punish him for an offence of a political character, the onus
of establishing that is upon the alleged criminal himself.
Now s. 9 and s. 10 seem to me to have some bearing on the
question as to whether or not the offence with which a man
is charged is of a political character. First of all, the 9th
section enacts that, "When a fugitive criminal is brought
before the police magistrate, the police magistrate shall hear
the case in the same manner and have the same jurisdiction
and powers, as near as may be, as if the prisoner were
brought before him charged with an indictable offence com
mitted in England." If he were charged before the magis
trate with an indictable offence committed in England, the
question of whether or not the offence for which he was
indicted were of a political character or not would make no
difference. But, under this section the magistrate is to deal
with him as though the offence charged were an indictable
offence committed in England. Then the section goes on to
say: "The police magistrate shall" not adjudge that the
offence is of a political character, but he "shall receive any
evidence which may be tendered to shew that the crime of
which the prisoner is accused or alleged to have been con
victed is an offence of a political character or is not an
extradition crime." It seems to me that the language of this
part of the 9th section in itself shews that the onus is on the
person who seeks to absolve himself or exonerate himself
from the liability to be handed over to the Government of
the territory within which the crime was committed. I find
here in furtherance of what I am about to say about this
question of the jurisdiction of the magistrate, s. 10, which is,
to my mind, by no means unimportant: "In the case of a
fugitive criminal accused of an extradition crime, if the
foreign warrant authorizing the arrest of such criminal is
duly authenticated, and such evidence is produced as (sub-
ject to the provisions of this Act) would, according to the
law of England, justify the committal for trial of the prison
er if the crime of which he is accused had been committed in
England, the police magistrate shall commit him to prison,
but otherwise shall order him to be discharged." It does not
seem to give the magistrate himself the power of dealing with
the matter other than this: he is to consider whether the
crime is one which, if committed in England, would have
made it imperative upon him in discharging his duty to
commit the man to prison. If so, he is to commit him to
prison; but he is, as I have already shewn, by s. 9, obliged to
receive any evidence which may be tendered to shew that the
crime is of a political character, and that is analogous to the
provisions in Russell Gurney's Act (30 & 31 Vict. c. 35),
which make it the duty of a magistrate, if a prisoner wishes
to call evidence in support of a defence which he intends to
set up when he comes to be indicted, to take that evidence
and hand it over to the tribunal before whom the prisoner is
ultimately to appear. In furtherance of this view that I take,
I read the 11th section: "If a police magistrate commits a
fugitive criminal to prison, he shall inform such criminal that
he will not be surrendered until after the expiration of
fifteen days, and that he has a right to apply for a writ of
habeas corpus," which may very well mean this: "I have
power to commit you to prison because I am satisfied that
you have been guilty of a crime to which the extradition law
and treaty apply; you have a right to have any evidence
taken on your behalf to shew that you are a criminal who
ought not to be sent out, because your offence, even if
committed, was of a political character. I will take the
evidence for you. You have fifteen days to make application
for your release if you think fit to move for a habeas
corpus". What follows afterwards shews that it is not the
magistrate who is to determine these matters, but it is the
Home Secretary who is to determine whether or not ultimate
ly the prisoner is to be sent abroad, because the second part
of the 11th section goes on to say: "Upon the expiration of
the said fifteen days, or, if a writ of habeas corpus is issued,
after the decision of the Court upon the return to the writ, as
the case may be, or after such further period as may be
allowed in either case by a Secretary of State, it shall be
lawful for a Secretary of State, by warrant under his hand
and seal, to order the fugitive criminal (if not delivered on
the decision of the Court) to be surrendered to such person
as may in his opinion be duly authorized to receive the
fugitive criminal." These are the provisions of the Act, and
they are quite sufficient to satisfy me that the magistrate's
decision is by no means binding, either in point of law or in
point of fact, and that when these matters come to be
considered upon the habeas corpus, if the judges have to
consider the case they must consider the case as it is before
them at the time the rule is discussed; and I think that in
considering the matter, though we pay respect to the magis
trate's view, we are not bound to follow it at the expense of
the criminal, if upon the whole state of things before us, we
come to the conclusion either that the crime has not been
committed, and that there is no primâ facie evidence of it, or
that the criminal ought not to be sent out to his own
Government for the purpose of being dealt with by reason
of his offence being though a crime, a crime of a political
character. (Italics added.)
The question is also discussed in Piggott on
Extradition (1910) at pages 46 and 101. The
scheme for extradition under the English Act is
similar to that under the Canadian Act but there
are important differences in the different provi
sions. A provision covering much the same
subject-matter as section 21 of the Canadian
Act is found in section 3(1) of the English Act.
Piggott says at page 46:
I shall first attempt to unravel s. 3(1), without the aid of
the authorities. By the ordinary rules, this provision must be
construed by the light only of what precedes it. Now, as s. 3
contains general directions, in the form of restrictions, on
the surrender of fugitive criminals, it follows that the first
part of sub-sec. (1) must be obeyed by all authorities who
take an active part in the surrender. These authorities are
the Secretary of State, in virtue of the powers with which he
is vested by the Act, and the Court, in the exercise of its
powers under the common law. The magistrate does not
come in at this point, because the Act only treats him as part
of the machinery, and he has no powers other than those
which the Act gives him, which will be considered presently.
and at page 101:
The second paragraph of s. 9, also deals with the evidence
at the hearing. It provides that the magistrate may receive
evidence to show that the crime of which the prisoner is
accused or convicted is an offence of a political character,
or is not an extradition crime.
It will be noticed that this provision is limited in two
ways; first, in the matter of reception of evidence, it refers
to two special heads only; secondly, it goes no further than
the reception of evidence, and does not expressly give the
magistrate power to discharge the fugitive on that evidence.
The above paragraph is supplemented by the provision of
s. 3(1), that the prisoner may prove to the satisfaction of the
magistrate,—that is, that he may receive evidence tendered
by the prisoner to show—"that the requisition for his sur
render has in fact been made with a view to try or punish
him for an offence of a political character." The magistrate
must say whether he is satisfied or not: in other words, he
must express an opinion on this evidence; but, as in the case
of s. 9, no power is expressly given to the magistrate to
discharge the prisoner if he is satisfied on this point. The
sub-section says "he shall not be surrendered;" but that, as
already pointed out, is an instruction to the executive offi
cers. For the purpose of this discussion it is immaterial
whether the two parts of s. 3(1) refer to the same thing or
not.
The opinion of Hawkins J. which I have cited
above was criticized in R. v. Holloway Prison;
in re Siletti (1902) 71 L.J.K.B. 935, with respect
to the scope of review of evidence of the com
mission of the crime open to the court in habeas
corpus proceedings and it was reviewed by
Lord Goddard C.J. at the request of the Attor
ney General in Regina v. Governor of Brixton
Prison, ex parte Kolczynski [1955] 1 All E.R. 31
when a different view was expressed on the
authority of the magistrate to adjudge the politi
cal character of the offence and discharge the
fugitive on that ground. The view of Lord God-
dard, however, turned at least in part on (1) the
wording of section 3(1) of the English statute
which provides in respect of what has been
referred to as the second limb of the restriction
of section 3(1) that the fugitive shall not be
surrendered
... if he prove to the satisfaction of the police magistrate or
the court before whom he is brought on habeas corpus, or to
the Secretary of State that the requisition for his surrender
has in fact been made with a view to try or punish him for
an offence of a political character,
under which limb of section 3(1) the Kolczynski
case fell for consideration, and (2) the recital of
the warrant of commitment prescribed by the
English statute that:
... and forasmuch as no sufficient cause has been shown to
me why he should not be surrendered .. .
The wording referred to in (1) above is not
found in the Canadian Act or in the treaty here
in question, nor is the recital referred to in (2)
found in the Canadian form of warrant. What is
recited in the statutory Canadian form of war
rant is:
... and forasmuch as I have determined that he should be
surrendered in pursuance of the said Act, on the ground of
his being accused (or convicted) of the crime of ... within
the jurisdiction of ... .
This I regard as neutral on the question and not
as showing that the extradition judge in Canada
has authority to determine the political charac
ter of an offence. I do not think therefore that
the Kolczynski case should be regarded as per
suasive on the question under the Canadian Act.
I am also of the opinion that the statement of
Wurtele J. in Re Louis Levi (1897) 1 C.C.C. 74
at page 77 that:
When, therefore, a person alleged to be a fugitive criminal
is brought before an Extradition Commissioner, he should
admit any testimony that tends to show that the offence is
political or that it is not an extradition crime. If it should be
found that the offence is of a political character, or that the
offence is not an extradition crime, the prisoner must be
discharged; but otherwise, if the evidence is such as would
justify committal for trial in Canada, or shows that the
prisoner has been convicted, it is the duty of the Extradition
Commissioner to send the fugitive criminal to jail to await
the proper requisition from the foreign Government and the
warrant of the Minister of Justice for his surrender.
was not necessary for the determination of that
case and I do not think such a statement in a
context of general comments on procedure
should be regarded as a considered opinion on
the question. It may be noted, moreover, that
Wurtele J. does not expressly say by whom the
fugitive is to be discharged. On the whole for
the reasons I have given I am of the opinion that
in Canada an extradition judge is not empow
ered by the Act to determine the question or to
discharge a fugitive on the ground of the
offence being of a political character and it
appears to me to follow from this that having
been satisfied that the evidence with respect to
the offences was sufficient to justify committal
for trial as set out in section 18(1)(b) there can
be no error in law in the learned judge having
issued his warrant, regardless of his conclusions
as to what the evidence showed with respect to
the political character of the offences. More
over, since this Court does not have habeas
corpus jurisdiction and since the scope of
review by this Court of the learned judge's
disposition of the matter is limited to considera
tion of the correctness in point of law of the
action taken by him I do not think it is open to
this Court on this application to enter upon and
decide the question of the political character of
the offences for the purpose of determining the
legality of the applicant's imprisonment as the
English Courts have consistently done in extra
dition matters in habeas corpus proceedings.
This conclusion is sufficient in my view to
dispose of the whole issue on this application
with respect to the political character of the
offences but as the matter was fully argued on
its merits I shall briefly express my view on
them in case it should be of some importance in
the event of an appeal. In so doing I shall
assume that the learned judge had jurisdiction
to determine the question, if not finally, at least
for the limited purpose of deciding whether or
not to issue an extradition warrant. At the same
time it will be necessary to bear in mind that the
scope of review open to this Court under sec
tion 28 of the Federal Court Act with respect to
facts does not include the making of findings of
fact or the reversal of findings of fact on the
ground that they are against the weight of the
evidence or the substituting of its own view of
the facts for that of the extradition judge but is
limited to considering and determining whether
his view of the facts was one that was open to
him on the material before him.
As I read his reasons the learned judge after
citing excerpts from a number of cases dealt
with two aspects of the matter. He first consid
ered whether the offences were shown to be
part of political activities and on this point he
rejected, as he was admittedly entitled to do and
as I think he was correct in doing, the opinions
of a number of witnesses who had been called
to give evidence on the point.
These witnesses had given evidence of wide
spread dissatisfaction and protests against the
involvement of the Government of the United
States and its military forces in the war in
Vietnam and of the dissatisfaction of some ele
ments of American society with the capitalist
system of the United States and the alleged
influence of the United States Government and
of United States corporations in other parts of
the world. They also referred to protest activi
ties by groups of such people in various parts of
the United States over a period of some years
and in particular to meetings, marches, protests,
riots and damage and destruction of property
which had occurred in Madison over much the
same period, particularly on the campus of the
University of Wisconsin and, even more par
ticularly, damage to three of the four buildings
referred to in the charges of arson against the
applicant, all three of which were in whole or in
part used for purposes of or connected with the
military forces of the United States, in the cases
of two of them for R.O.T.C. purposes and in the
case of Sterling Hall for the purposes of what
was known as the Army Math Research Centre.
The learned judge next mentioned that of all
the witnesses called only one knew the appli
cant and then only through the Madison Tenants
Union and he went on to find that it would be
impossible for him to infer from the evidence
before him that the applicant was involved with
political activity which resulted in the bombings.
Having regard to the scarcity of evidence to
connect the applicant with the activities
described by the witnesses as having taken
place in Madison, Wisconsin, and in other parts
of the United States and which were relied on
as establishing the political context in which the
offences were committed and their political
character and having regard as well to the fact
that no evidence was given by the applicant
from which, had he given evidence, his purpose
and motivation in committing the offences, if
indeed he did commit them, as well as his con
nection with the activities described might have
appeared I do not regard it as surprising that the
learned judge concluded that he ought not to
infer that the respondent was involved with
political activity which resulted in the bombings
and I do not think the evidence leads irresist-
ably or at all to such a conclusion.
As murder and arson are not per se or ordi
narily offences of a political character and the
existence of a political motive or purpose has
been consistently held to be a necessary feature
for the purpose of characterizing an offence as
one of a political character, though that feature
alone will not suffice to so characterize it, it was
in my opinion unnecessary for the learned judge
to go any further to find that the offences here
in question were not of a political character.
The learned judge, however, went on to con
sider, as I read his reasons, whether the extradi
tion of the applicant was sought for the purpose
of trying or punishing him for anything but the
offences of murder and arson in question in
their ordinary criminal aspect as described by
Viscount Radcliffe in his judgment in Schtraks
v. Government of Israel [1964] A.C. 556. In so
doing he cited features of the evidence from
which he could in my opinion properly conclude
as he did that the surrender of the applicant was
not sought for any such other reasons. He then
proceeded to find that the offences in respect of
which the proceedings were brought were not of
a political character and that these proceedings
were not being taken with a view to prosecute
or punish the applicant for an offence of a
political character.
In the only area that is open to review in this
Court, that is, the legality of the first of these
findings, viz., that the offences were not of a
political character, I am of the opinion that it
cannot be said that the finding was made with
out regard for the evidence or that the learned
judge's finding resulted from any error in law on
his part in reaching his conclusion.
The learned judge was, in my view, clearly
justified in declining to conclude on the evid
ence before him that the applicant was involved
in political activities which led to the offences in
question and there was also ample evidence
before him upon which he could conclude that
the applicant is not a political fugitive but
simply a fugitive from justice in respect of the
offences in question in their ordinary aspect.
The alleged offences moreover were committed
to the property of the State of Wisconsin in the
possession of a University and to the person of
Dr. Fassnacht and could only in a remote way
and in the cases of but three of the four build
ings concerned, be regarded as offences against
the Government of the United States or its
military organization. The principal sufferer
each time was the owner of the property
attacked and in the case of Sterling Hall, Dr.
Fassnacht, as well. In each case the purpose, if
the material in the exhibits is to be regarded,
was to force the University authorities to dis
pense with army presence on the campus. If this
can be regarded as rebellious it appears to me to
be rebellious against University authority rather
than against the authority of the Government of
the United States. The offences were committed
in three instances against buildings somehow
connected with the military forces of the United
States but these offences could in my opinion
be regarded in each instance as comparable to a
case of someone holding up a bank to obtain
money to foment a revolution and incidentally
destroying government property or killing a sol
dier of the state in the course of committing the
robbery. I would not think such a crime was
necessarily or even probably a crime of a politi
cal character. Finally, it must be noted that in
each case the alleged offence occurred in the
nighttime when all else was peaceful rather than
in the course of a political tumult or revolution
and that in no case was the offence followed by
a political tumult or revolution. These in my
view were all features of the matter that
appeared from the material before the learned
judge. They are in my opinion sufficient to
sustain a conclusion that the offences were not
of a political character within the meaning of
section 21 and as this Court is not empowered
to interfere with the learned judge's finding on
the ground of its being against the weight of the
evidence there is no occasion to express any
view on that point and there is no basis for
interference with the learned judge's finding.
Before parting with the matter, however, I
wish to reserve the question whether the
learned judge correctly held that the onus of
negating political character lay on the prosecu
tion. That ruling on his part, however, if errone
ous, and if onus had any influence on his judg
ment, erred only in unduly favouring the
applicant's position.
I would dismiss the application.
CAMERON D.J. concurred.
SWEET D.J.—I have had the advantage of
reading the reasons of My Lord Thurlow and
with them I concur. However, I should like also
to add some comments of my own.
The applicant, Karleton Lewis Armstrong,
has been indicted in Wisconsin, one of the
United States of America, on charges which
include first-degree murder contrary to section
940.01(1), Wisconsin Statutes, arising out of an
alleged bombing of a university building alleged
to be the property of the State of Wisconsin,
and four charges of arson of University build
ings alleged to be the property of that State.
He was apprehended in Canada and the
request was made that he be extradited. The
extradition hearing came on before His Honour
Judge H. Waisberg who signed a warrant of
committal dated the 30th day of June 1972.
Application was made pursuant to 'section 28
of the Federal Court Act to review and set aside
His Honour's decision.
It has been submitted that the extradition
judge erred as follows:
Point 1. In accepting into evidence and acting upon affida
vits without permitting the appellant full opportunity to
cross-examine the witnesses who gave their evidence by
way of affidavits.
Point 2. In that he refused to decide whether or not there
was sufficient evidence to justify the extradition of the
appellant on the specific charge for which extradition was
sought, namely first-degree murder.
Point 3. In holding that the facts presented to him amount
ed to a prima facie case of murder in Canada.
Point 4. In refusing to admit into evidence a certain
portion of Philip Ball's testimony relating to a conversa
tion that he had with the appellant during the fall of 1969.
Point 5. In accepting evidence from the State of Wiscon-
sin by way of reply at the conclusion of the evidence
offered on behalf of the appellant.
Point 6. By refusing to accept uncontradicted evidence
offered by the defence that the crimes were of a political
character and thereby based his decision or order on an
erroneous finding of fact without regard for the material
before him.
Point 7. In deciding that the crimes were not of a political
character and thereby refused to exercise his jurisdiction
pursuant to s. 21 of the Extradition Act and erred in law
in making his decision or order.
It will be convenient to refer to those points
by the numbers above.
Though not originally raised by either of the
parties an additional point was dealt with on
appeal, namely, whether the extradition judge
had jurisdiction to decide upon the presence or
absence of "political character" in determining
whether a warrant for committal should issue.
Section 21 of the Extradition Act is:
21. No fugitive is liable to surrender under this Part if it
appears
(a) that the offence in respect of which proceedings are
taken under this Act is one of a political character, or
(b) that such proceedings are being taken with a view to
prosecute or punish him for an offence of a political
character.
It was conceded on behalf of the applicant
that the proceedings in Wisconsin were not
being taken with a view to prosecute or punish
for an offence of a political character. Accord
ingly, paragraph (b) of section 21 is not
relevant.
Regarding points 2, 3, 4 and 5, I consider it
sufficient to say that, in my opinion, the learned
extradition judge was not in error.
In connection with point 1, it was submitted
that section 16 of the Extradition Act was ren
dered inoperative by the Canadian Bill of Rights
by virtue of its sections 1(a) and 2(e). Alterna
tively, it was submitted that if section 16 was
not rendered inoperative the judge, in order to
conform with those sections of the Canadian
Bill of Rights, should have only accepted the
affidavits referred to in section 16 on terms.
Section 16 of the Extradition Act is:
16. Depositions or statements taken in a foreign state on
oath, or on affirmation, where affirmation is allowed by the
law of the state, and copies of such depositions or state
ments and foreign certificates of, or judicial documents
stating the fact of conviction, may, if duly authenticated, be
received in evidence in proceedings under this Part.
The portions of the Canadian Bill of Rights
referred to on behalf of the appellant are:
1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without dis
crimination by reason of race, national origin, colour, reli
gion or sex, the following human rights and fundamental
freedoms, namely,
(a) the right of the individual to life, liberty, security of
the person and enjoyment of property, and the right not to
be deprived thereof except by due process of law;
2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or infringement
of any of the rights or freedoms herein recognized and
declared, and in particular, no law of Canada shall be
construed or applied so as to
(e) deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for
the determination of his rights and obligations;
It is my understanding that counsel for the
applicant conceded that until the enactment of
the Canadian Bill of Rights all of the relevant
jurisprudence was to the effect that in extradi
tion proceedings duly authenticated affidavits
referred to in section 16 of the Extradition Act
could be received and acted upon without any
cross-examination or confrontation of the depo-
nents. However, it was submitted that because
of the Bill of Rights that situation no longer
obtains.
In Curr v. The Queen [1972] S.C.R. 889,
Ritchie J. said (at page 916):
... I prefer to base this conclusion on my understanding
that the meaning to be given to the language employed in the
Bill of Rights is the meaning which it bore in Canada at the
time when the Bill was enacted, and it follows that, in my
opinion, the phrase "due process of law" as used in s. 1(a) is
to be construed as meaning "according to the legal pro
cesses recognized by Parliament and the courts in Canada".
In this Fauteux C.J.C. concurred.
Respectfully, it would seem to me that this
view receives emphasis from the French ver
sion. In Curr v. The Queen (supra) Laskin J.
(Hall, Spence and Pigeon JJ. concurring) said
inter alia (at page 896):
In considering the reach of s. 1(a) and s. 1(b), and, indeed,
of s. 1 as a whole, I would observe, first, that the section is
given its controlling force over federal law by its referential
incorporation into s. 2; and, second, that I do not read it as
making the existence of any of the forms of prohibited
discrimination a sine qua non of its operation. Rather, the
prohibited discrimination is an additional lever to which
federal legislation must respond. Putting the matter another
way, federal legislation which does not offend s. 1 in respect
of any of the prohibited kinds of discrimination may
nonetheless be offensive to s. I if it is violative of what is
specified in any of the paras. (a) to (D of s. I.
(P. 897) The phrase "due process of law" has its context in
the words of s. 1(a) that precede it. In the present case, the
connection stressed was with "the right of the individual to
... security of the person". It is obvious that to read "due
process of law" as meaning simply that there must be some
legal authority to qualify or impair security of the person
would be to see it as declaratory only.
(P. 898) I am unable to appreciate what more can be read
into s. 1(a) from a procedural standpoint than is already
comprehended by s. 2(e) ("a fair hearing in accordance with
the principles of fundamental justice") and by s. 2(D ("a fair
and public hearing by an independent and impartial
tribunal").
(P. 899) Assuming that "except by due process of law"
provides a means of controlling substantive federal legisla-
tion—a point that did not directly arise in R. v. Drybones—
compelling reasons ought to be advanced to justify the
Court in this case to employ a statutory (as contrasted with
a constitutional) jurisdiction to deny operative effect to a
substantive measure duly enacted by a Parliament constitu
tionally competent to do so, and exercising its powers in
accordance with the tenets of responsible government,
which underlie the discharge of legislative authority under
the British North America Act. Those reasons must relate to
objective and manageable standards by which a Court
should be guided if scope is to be found in s. 1(a) due
process to silence otherwise competent federal legislation.
On whatever interpretation is to be given to
the words "except by due process of law" in
section 1(a) when the extradition judge received
and acted upon authenticated depositions taken
in the foreign state on oath without cross-exami
nation of the deponents he was not acting con
trary to legal processes recognized by Parlia
ment and the courts in Canada at least up to the
time of the enactment of the Bill of Rights. He
was doing precisely what Parliament said he
could do and, if I understand it correctly, what
counsel for the appellant conceded was the
effect of the jurisprudence prior to the Canadi-
an Bill of Rights.
Section 16 is general in its nature and is
applicable to all persons who are parties to
extradition proceedings whatever may be their
race, national origin, colour, religion or sex.
Pursuant to section 1(a) of the Canadian Bill
of Rights it is "the right of the individual to life,
liberty, security of the person and enjoyment of
property" of which a person is not to be
deprived "except by due process of law". It is
my view that when a civilized state in which
laws are administered and courts function in
accordance with the principles of fundamental
justice, the fugitive's right to life, liberty and
security of his person is not determined on
extradition proceedings. If extradition is
ordered those rights are left to be determined in
such a state requesting extradition.
There has not been any suggestion by counsel
for the applicant, of which I am aware, that in
the State of Wisconsin laws are not adminis
tered nor that the courts do not function in
accordance with the principles of fundamental
justice nor that the appellant would not receive
a fair trial there.
Still, that is not the end of the matter. If
section 16 of the Extradition Act does indeed
deprive the appellant of the right to a fair hear
ing in accordance with the principles of funda
mental justice on the extradition proceedings
then, having regard to section 2(e) of the
Canadian Bill of Rights, section 16 is no longer
effective.
Cross-examination is important in the testing
of truth and in the eliciting of fact. It is a
significant safeguard. It is something not lightly
to be taken away.
On the other hand an extradition proceeding
is the unusual. It is not for the final determina
tion of guilt or innocence. Finality is not its
function. This is manifest from sections 13
and 16 which make the proceeding akin to a
preliminary hearing. Not only that but it is
implicit from the Act that if the fugitive is
returned to the requesting state finality in
respect of guilt or innocence is for adjudication
there.
Accordingly, what is an imperative in a proce
dure or series of procedures when a charge is to
proceed to finality in the nation in which the
charge is laid is not necessarily an imperative at
an extradition hearing.
In these times, with ever-increasing speed and
ease of movement from nation to nation and it
not being extraordinary for crime to have inter
national aspects, the common good requires that
extradition proceedings be efficient and practi
cal. The incorporation into extradition proceed
ings of the full panoply of safeguards developed
to protect the accused in a court in which his
ultimate liberty is at stake is not always neces
sary and even could in some cases have so
cumbersome a result as to make those proceed
ings virtually futile.
This is not to say that justice should yield to
expediency. It is a commonplace in our general
ly accepted concept and philosophy of law and
in our culture that if in any situation justice is
not compatible with expediency it is mandatory
that the choice be justice.
What is required is a proper, practical, work
able balance. It seems to me that balance is
achieved in section 16 and that, although it was
first enacted many years ago, it continues ade
quately to serve today's purposes. In it I think
realism partners justice. It is worthy of note,
too, that its provisions apply not only to the
applicant state but also to the fugitive.
If counsel were correct in the submission that
section 16 deprives a person of the right to a
fair hearing in accordance with the principles of
fundamental justice, then would not cases in
which section 16 was invoked prior to the
enactment of the Canadian Bill of Rights be
founded on injustice? Surely it would require
something far more than appears in evidence in
this case to reach such a conclusion.
Section 16 of the Extradition Act was "duly
enacted by a Parliament constitutionally com
petent to do so and exercising its powers in
accordance with the tenets of responsible gov
ernment which underlie the discharge of legisla
tive authority under the British North America
Act, 1867". Furthermore, it is a 'legislative
provision of long standing. It has stood the test
of time. "Compelling reasons ought to be
advanced to justify the Court" in concluding
that the very general words of the sections of
the Canadian Bill of Rights referred to are suffi
cient to nullify it. Surely there must be some
thing more than the judgment of an individual to
nullify the collective decision of Parliament in
corporated into and enunciated in the section.
Something far more is needed than the submis
sion that the opportunity for cross-examination
is not available.
I am aware that counsel for the applicant
submitted that all Parliament had to do was to
have expressly declared that the Extradition Act
is to operate notwithstanding the Canadian Bill
of Rights. Of course, this would presuppose that
Parliament considered that it did previously
contravene the principles of natural justice. If
Parliament had so enacted there would have
been that implication. As I see it there is no
compelling reason for such a conclusion.
Counsel for the applicant suggested as an
alternative that if the affidavits were to be
received under section 16 certain conditions
should be attached to them and made some
suggestions as to what they might be.
In section 16 there is no requirement for the
extradition judge attaching such conditions.
There is no machinery in the Extradition Act for
them or for implementing them.
I do not consider that the discretion which
lies with the judge under section 16 extends to
empowering him to create machinery for the
fulfilment of conditions and this, particularly, if
the fulfilment of them would require procedures
in a foreign state which do not exist and which
the extradition judge has no power to create.
It is my opinion that when the learned extra
dition judge received and acted upon the affida
vits pursuant to section 16 of the Extradition
Act the appellant was not denied due process of
law and that he was not deprived of fundamen
tal justice for the determination of his rights and
obligations.
The applicant's points 6 and 7 are interrelat
ed. Each has to do with the submissions of the
appellant that the offences in respect of which
proceedings were taken under the Extradition
Act were of a political character within the
meaning of section 21 of that Act.
Although by no means exhaustive of relevant
jurisprudence on the subject, In re Castioni
[1891] 1 Q.B. 149 and Schtraks v. Government
of Israel [1964] A.C. 556 contain important
pronouncements.
In In re Castioni, Denman J. said:
(P. 156) I think that in order to bring the case within the
words of the Act and to exclude extradition for such an act
as murder, which is one of the extradition offences, it must
at least be shewn that the act is done in furtherance of, done
with the intention of assistance, as a sort of overt act in the
course of acting in a political matter, a political rising, or a
dispute between two parties in the State as to which is to
have the government in its hands, before it can be brought
within the meaning of the words used in the Act.
(P. 159) The question really is, whether, upon the facts, it is
clear that the man was acting as one of a number of persons
engaged in acts of violence of a political character with a
political object, and as part of the political movement and
rising in which he was taking part.
In Schtraks, Lord Reid said:
(P. 583) We cannot inquire whether a "fugitive criminal"
was engaged in a good or a bad cause. A fugitive member of
a gang who committed an offence in the course of an
unsuccessful putsch is as much within the Act as a follower
of a Garibaldi. But not every person who commits an
offence in the course of a political struggle is entitled to
protection. If a person takes advantage of his position as an
insurgent to murder a man against whom he has a grudge I
would not think that that could be called a political offence.
So it appears to me that the motive and purpose of the
accused in committing the offence must be relevant and may
be decisive. It is one thing to commit an offence for the
purpose of promoting a political cause and quite a different
thing to commit the same offence for an ordinary criminal
purpose.
(P. 583) The use of force, or it may be other means, to
compel a sovereign to change his advisers, or to compel a
government to change its policy may be just as political in
character as the use of force to achieve a revolution. And I
do not see why it should be necessary that the refugee's
party should have been trying to achieve power in the State.
It would be enough if they were trying to make the govern
ment concede some measure of freedom but not attempting
to supplant it.
(P. 584) It appears to me that the provisions of section 3 of
the Act of 1870 are clearly intended to give effect to the
principle that there should in this country be asylum for
political refugees, and I do not think that it is possible, or
that the Act evinces any intention to define the circum
stances in which an offence can properly be held to be of a
political character.
In Schtraks, Viscount Radcliffe said:
(P. 589) What then is an offence of a political character?
The courts, I am afraid, have been asking this question at
intervals ever since it was first posed judicially in 1890 in In
re Castioni, and no definition has yet emerged or by now is
ever likely to.
(P. 591) In my opinion the idea that lies behind the phrase
"offence of a political character" is that the fugitive is at
odds with the State that applies for his extradition on some
issue connected with the political control or government of
the country. The analogy of "political" in this context is
with "political" in such phrases as "political refugee",
"political asylum" or "political prisoner". It does indicate, I
think, that the requesting State is after him for reasons other
than the enforcement of the criminal law in its ordinary,
what I may call its common or international, aspect. It is this
idea that the judges were seeking to express in the two early
cases of In re Castioni and In re Meunier when they con
nected the political offence with an uprising, a disturbance,
an insurrection, a civil war or struggle for power; and in my
opinion it is still necessary to maintain the idea of that
connection. It is not departed from by taking a liberal view
as to what is meant by disturbance or these other words,
provided that the idea of political opposition as between
fugitive and requesting State is not lost sight of: but it would
be lost sight of, I think if one were to say that all offences
were political offences, so long as they could be shown to
have been committed for a political object or with a political
motive or for the furtherance of some political cause or
campaign. There may, for instance, be all sorts of contend
ing political organisations or forces in a country and mem
bers of them may commit all sorts of infractions of the
criminal law in the belief that by so doing they will further
their political ends: but if the central government stands
apart and is concerned only to enforce the criminal law that
has been violated by these contestants, I see no reason why
fugitives should be protected by this country from its juris
diction on the ground that they are political offenders.
Accordingly if a tribunal is to decide whether
an offence is one having a political character, it
is without the benefit of a precise definition
either by statute or jurisprudence. There are,
however, some general principles developed by
jurisprudence.
It is fundamental that the general, basic pur
pose of extradition and the enabling legislation
is simply to provide co-operatively a means
whereby a fugitive from one jurisdiction
apprehended in another may be returned for
trial in the jurisdiction whence he fled. It is a
phase of co-operation between two states rela
tive to the administration of the criminal law in
each. However to preserve the availability of
political asylum in proper cases Parliament
included in the Act sections 21 and 22.
It follows that a submission that the offence
charged has political character must carefully be
examined. The motivation of the fugitive, of
which more is said below, is important but much
more is required than a mere assertion by the
fugitive that he was politically motivated.
Furthermore, I do not think that the person
accused can unilaterally cause the offence to be
political. Viscount Radcliffe said in Schtraks
(supra) ... "if the central government stands
apart and is concerned only to enforce the crim
inal law ... I can see no reason why fugitives
should be protected by this country from its
jurisdiction on the ground that they are political
offenders".
Neither do I think that a person, sympathetic
with the aims of a significant number of persons
in a movement to endeavour to bring about a
change in governmental policy by legal means
and who, himself, commits a crime with the
avowed purpose of achieving those aims
because he thinks legal means are ineffective,
can create a haven for himself in this nation so
as to avoid punishment for those crimes.
The actions of the offender should, if any
thing, be even more closely scrutinized and they
would bear even more severe testing before
being categorized as political within the meaning
of section 21 when, as here, there is violence
directed, not against responsible functionaries
or property of the government desired to be
overthrown or whose policy it is desired to
change, but against the person or property of a
third party.
Furthermore, and in any event, as I see it, if it
is not established on the extradition proceedings
that the fugitive is guilty of the offence charged
the question of "political character" could not
be determined at that hearing even if the tri
bunal did have jurisdiction in the premises.
Here the fugitive did not admit guilt nor has
guilt been otherwise established.
I am in agreement that the evidence produced
by the State of Wisconsin before the extradition
judge is sufficient to indicate that degree of
probability to justify committal for trial if the
crimes had been committed in Canada. How
ever, that is not a finding of guilt.
In submitting that the offences charged are of
a political character, it seems to me that the
highest at which the applicant can put his posi
tion is to say: "I do not admit the offences but if
I did commit them they are of a political charac
ter", or "they are of a political character who
ever committed them".
The character of the offence is relevant but
the character of the offence may vary with the
individual. Murder and arson are not political
per se though it would seem from the jurispru
dence that under some circumstances they
might have a "political character". Although not
the only factor motivation has significance in
the determination as to whether an offence has
political character. It would seem to me that a
tribunal could not reasonably be expected to
reach a conclusion on motivation of the perpe
trator, whoever he might be, without even
knowing who the perpetrator was or what
moved him.
On some occasions the surrounding circum
stances might make it seem that an occurrence
or incident has political character. Nevertheless
the motivation of a person, present and appar
ently associating himself with the incident and
others politically moved, who then and there
commits a crime, could be without any connec
tion with the political aims of the others. The
motivation of that person could, for example, be
nothing more than to satisfy a personal grudge.
Though the incident and circumstances have
relevance it is not the incident nor the circum
stances which are charged. It is the individual
who is charged. It is the individual the foreign
state seeks to have extradited. It is the individu
al who is before the extradition tribunal.
Motivation is of the mind. It precedes and is a
causative factor of the deed. Surrounding facts
and circumstances may tend to affirm or dis
credit a declaration as to motive. Still in a sane
person only he can actually be aware of his
motive,—only he knows why he did the act
unless, of course, he tells the truth about it to
someone else. How, then, can an accused
person be heard to indicate the motive inducing
an act unless he admits doing it?
It is my opinion that the matter of "political
character" could not arise for decision by the
extradition tribunal in this case and could not
there be a defence against extradition even if
that tribunal had jurisdiction to deal with it.
I understand that applicant's counsel submits
there exists in the United States of America a
significant public opinion against the policy of
the Government of the United States in connec
tion with the war in Vietnam and an expressed
desire on the part of many there that that Gov
ernment bring that war to an end. As I under
stand it, it is also the position of counsel for the
applicant that the applicant was part of that
movement and that, as a result, all of the
charges against him are associated with that
movement and have, thereby, a political
character.
Also, as I understand Mr. Ruby's position on
behalf of the applicant, expressed during his
argument, it is that if there is a significant
movement to bring about a change in govern
mental policy and if, with the intention of fur-
thering the aims of that movement, an individual
commits a crime, the offence is one of a politi
cal character within the meaning of section 21
even though all others in the movement attempt
to achieve their aims only by peaceful, legal
means. It is a position with which I do not
agree.
If it could be said there is acceptable evidence
here that the applicant or the offences in respect
of which he stands indicted, are a part of what
might be described as that anti-Vietnam war
movement, it would, at most, be tenuous. There
are what counsel for the applicant refers to as
the "communiques". I do not consider them
impressive to show the connection. There is no
hard evidence as to whence they came. If their
content is written by the bomber, as I under
stand is Mr. Ruby's theory, and if the bomber is
the applicant, surely they would be self-serving.
I do not think that the affidavits filed on behalf
of the applicant are persuasive to show connec
tion between the bomber and the arsonist, who
ever he may be, and that movement.
Further, if it could be said that there is suffi
cient evidence to show an association between
the bomber and the arsonist and that movement,
I do not consider that that in itself is sufficient
for the applicant to shelter under section 21 of
the Extradition Act.
There is evidence that in the general area
where the bombing and arson occurred there
was activity in that movement which went
beyond verbal protest and included some viol
ence. However, the evidence does not establish
that that violence reached the stage of bombing
and arson unless the incidents in respect of
which the applicant is accused could be includ
ed. I do not think the evidence establishes that
bombing and arson were generally accepted
activities in the anti-Vietnam war movement in
the area.
There was no significant evidence offered
that the applicant or, for that matter, anyone
involved in the anti-Vietnam war movement was
being prosecuted in the United States for his
beliefs or for the aims of the movement or for
his attempts to accomplish those aims by peace
ful means. There is no evidence that those who
shared the views of the persons who made up
the movement were not permitted to speak
freely, to voice their views, to protest or peace
ably to demonstrate. There is no evidence that
those persons, or any witness who felt that the
applicant should not be extradited, needed
political asylum.
It was argued that the bombing was consid
ered by some people of prominence to be a
political act. The "evidence" so-called of this,
was publication in newspapers. Even if one
could assume that those persons were quoted
properly and that they made such statements
and held such views they would be only person
al views. It is not they who decide whether the
offences were of a political character within the
meaning of the Extradition Act of Canada.
Although the conduct of the war in Vietnam
is the responsibility of the Government of the
United States of America, the buildings bombed
and burned were not the property of that Gov
ernment, but appear to be property of the State
of Wisconsin. They were some of the buildings
comprising the facilities of the University of
Wisconsin, a place of learning.
It is my opinion that the offences in respect
of which the extradition proceedings were taken
were not of a political character within the
meaning of section 21 of the Extradition Act.
In any event the evidence is such as to justify
a conclusion that, to use the words of Viscount
Radcliffe in Schtraks, "the central government
stands apart and is concerned only to enforce
the criminal law" alleged to have been violated.
I turn now to the matter as to jurisdiction of
the extradition tribunal to decide upon the pres
ence or absence of "political character" in
determining whether a warrant of committal
should issue. It is my opinion that it does not
have such jurisdiction.
The jurisdiction of the extradition tribunal
comes exclusively from the Extradition Act. If
the Act does not give it it does not exist.
A pivotal section is 18. It is:
18. (1) The judge shall issue his warrant for the commit
tal of the fugitive to the nearest convenient prison, there to
remain until surrendered to the foreign state, or discharged
according to law,
(a) in the case of a fugitive alleged to have been convict
ed of an extradition crime, if such evidence is produced as
would, according to the law of Canada, subject to this
Part, prove that he was so convicted, and
(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 commit
tal for trial, if the crime had been committed in Canada.
(2) If such evidence is not produced, the judge shall order
him to be discharged.
Section 22 is:
22. Where the Minister of Justice at any time determines
(a) that the offence in respect of which proceedings are
being taken under this Part is one of a political character,
(b) that the proceedings are, in fact, being taken with a
view to try or punish the fugitive for an offence of a
political character, or
(c) that the foreign state does not intend to make a
requisition for surrender,
he may refuse to make an order for surrender, and may, by
order under his hand and seal, cancel any order made by
him, or any warrant issued by a judge under this Part, and
order the fugitive to be discharged out of custody on any
committal made under this Part; and the fugitive shall be
discharged accordingly.
Paragraph (b) of section 22 is not relevant in
this case because of the indication by counsel
for the applicant that there is no submission that
the extradition proceedings were taken with a
view to prosecute or punish the applicant for an
offence of a political character.
In paragraph (b) of section 18 in which are set
out circumstances under which a warrant for
committal may issue there is no reference to
"political character" and there is no interdiction
against the issuing of a warrant if the offence is
one of a political character, unless it is implied
by the words "subject to this Part". Thus,
unless those words "subject to this Part" import
section 21 into section 18 the judge is, in my
opinion, to make his decision as to whether a
warrant for committal is to be issued, only on
his conclusion as to whether the evidence pro
duced would, according to the law of Canada,
justify committal for trial if the crime had been
committed in Canada and, this, without regard
to "political character".
Pursuant to section 15 the judge is to receive
any evidence tendered to show that the crime of
which the fugitive is accused is an offence of a
political character. This does not say that he is
to receive this evidence for the purpose of
determining whether or not the crime is of a
political character. Rather it would seem to me
that the reason is so that any such evidence
offered will appear in the certified copy of the
evidence which the judge is to send to the
Minister of Justice pursuant to section 10(2). It
is not difficult to see the reason for that require
ment. Certainly this would be one convenient
way in which the Minister would have relevant
information before him in connection with mat
ters relating to political character so that he may
exercise his discretion pursuant to section 22.
Section 21 deals with liability of the fugitive
to surrender. However it is not the extradition
judge who surrenders him or orders that he be
surrendered. He may only issue a warrant for
committal until surrendered (section 18(1)). It is
the Minister of Justice who may order a fugi
tive, who has been committed for surrender, to
be surrendered (section 25). There is the dear
distinction between committal for surrender and
surrender.
In my opinion the words "subject to this
Part" in section 18(1)(a) and (b) only refer to
and qualify the word "evidence" in those para
graphs and that they import into that section the
provisions of section 16 indicating the type of
evidence which may be received, including duly
authenticated statements under oath. I do not
consider that the words "subject to this Part"
extend to embrace section 21.
Another section which might be considered in
this connection is section 13, namely:
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.
Here again, the words "subject to this Part"
appear, and here those words, in my view, mean
subject to the procedural differences provided
for in the Part as in section 16.
Consideration might also be given to the form
of warrant of committal (Form two in Schedule
II to the Act). Contained in it are the words
"and forasmuch as I have determined that he
should be surrendered in pursuance of the said
Act". I construe those words as qualified by the
words following: "on the ground of his being
accused (or convicted) of the crime of ...
within the jurisdiction of ...". This is not a
surrender nor an order for surrender. It is only a
command for the keeping of the fugitive in
custody until he is delivered pursuant to the
provisions of the Act. If that delivery is surren
der to the foreign state it is only effected, in my
opinion, by order of the Minister of Justice.
In my opinion the matter of political asylum is
left by the Extradition Act solely within execu
tive discretion.
I would dismiss the application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.