A-419-74
In re Extradition of Wong Shue Teen
Court of Appeal, Pratte, Urie and Ryan JJ.—
Vancouver, April 21-23, Ottawa, May 8, 1975.
Judicial review—Extradition—Affidavits—Whether prop
erly authenticated—Whether admissible—Extradition Act,
R.S.C. 1970, c. E-21, ss. 16 and 17—Canada Evidence Act,
R.S.C. 1970, c. E-10, s. 23.
Evidence adduced before the extradition judge consisted of
copies of two affidavits, apparently sworn in Hong Kong in the
presence of the United States Consul. The documents were
certified by an officer of the United States and "authenticated"
by the seal of the United States Department of Justice. Appli
cant questions the admissibility of the documents.
Held, setting aside the decision, the affidavits were wrongly
admitted. Authentication under the Extradition Act must ema
nate from an official of the country where the statement is
made. Proof of a document is different from execution. Certifi
cation under section 23 of the Canada Evidence Act establishes
that a copy is a faithful reproduction, but does not establish the
genuineness of the original.
APPLICATION for judicial review.
COUNSEL:
W. Wong for applicant.
S. J. Hardinge for respondent.
SOLICITORS:
Lew and Wong, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
•
PRATTE J.: This is an application, made under
section 28 of the Federal Court Act, to review and
set aside the decision of a judge under the Extra
dition Act (R.S.C. 1970, c. E-21) to issue a war
rant of committal for the extradition of the appli
cant, Wong Shue Teen, to the United States of
America.
The evidence adduced against the applicant at
the hearing before the extradition judge consisted
of copies of two affidavits that appeared to have
been sworn in Hong Kong in the presence of the
Consul of the United States. Those two documents
were certified by an officer of the United States
and were "authenticated" by the official seal of
the Department of Justice of that country.
The learned extradition judge held that those
documents were admissible in evidence under sec
tion 16 of the Extradition Act and, more particu
larly, that the authentication of those documents
met the requirements of paragraphs (a) and (b) of
section 17. I regret to say that I cannot agree
with that view.
Under section 16 "depositions or statements
taken in a foreign state on oath ... and copies of
such depositions or statements" may be received in
evidence in extradition proceedings provided that
they be "duly authenticated". Section 17 provides
that "the papers referred to in section 16 shall be
deemed duly authenticated if they are authenticat
ed" either in one of the ways described in para
graphs (a) and (b) of the section or "in the manner
provided, for the time being, by law."
If sections 16 and 17 are read together, it
becomes apparent that, in order to meet the
requirements of paragraphs (a) or (b) of section
17, the authentication of a deposition or statement
taken in a foreign country under oath must ema
nate from an official of the country where that
statement or deposition was made. The two affida
vits here in question had been made in Hong Kong
Sections 16 and 17 of the Extradition Act read as follows:
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 statements 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. R.S., c. 322, s. 16.
17. The papers referred to in section 16 shall be deemed duly
authenticated if authenticated in the manner provided, for the
time being, by law, or if
(a) the warrant purports to be signed by, or the certificate
purports to be certified by, or the depositions or state
ments, or the copies thereof, purport to be certified to be
the originals or true copies, by a judge, magistrate or
officer of the foreign state; and
(b) the papers are authenticated by the oath or affirma
tion of some witness, or by being sealed with the official
seal of the Minister of Justice, or some other minister of
the foreign state, or of a colony, dependency or constituent
part of the foreign state, of which seal the judge shall take
judicial notice without proof. R.S., c. 322, s. 17.
and purported to be authenticated by an officer of
the United States and by the seal of the Minister
of Justice of that country. They were not, there
fore, authenticated in one of the manners
described in paragraphs (a) and (b) of section 17.
When he was confronted with that objection,
(which, I must say, had never been stated explicit
ly before the hearing of this application) counsel
for the United States suggested that the expression
"foreign country" in section 17 referred to the
demanding state rather than to the country where
the deposition had been made. He soon realized,
however, that his suggestion could not help his
case since if the expression "foreign country" in
section 17 is interpreted as referring to the
demanding state, the same expression should be
given the same meaning in section 16. Then, the
only affidavits that might be received in evidence
under section 16 would be those made in the
demanding state.
The main argument of counsel for the United
States, however, was not that the two affidavits
made in Hong Kong had been authenticated in one
of the manners described in paragraphs (a) and
(b) of section 17. His main argument on this point
was that the two affidavits had been authenticated
"in the manner provided, for the time being, by
law." He contended that those words in section 17
referred to section 23 of the Canada Evidence Act,
a provision reading as follows:
23. (1) Evidence of any proceeding or record whatever of,
in, or before any court in Great Britain or the Supreme or
Federal Courts of Canada, or any court in any province of
Canada, or any court in any British colony or possession, or any
court of record of the United States of America, or of any state
of the United States of America, or of any other foreign
country, or before any justice of the peace or coroner in any
province of Canada, may be given in any action or proceeding
by an exemplification or certified copy thereof, purporting to be
under the seal of such court, or under the hand or seal of such
justice or coroner, as the case may be, without any proof of the
authenticity of such seal or of the signature of such justice or
coroner, or other proof whatever.
Before going any further, I must mention here
that it is common ground that the two affidavits,
which had been made in Hong Kong at the request
of the United States for the sole purpose of being
used in the extradition proceedings in Canada,
were filed in the United States District Court for
the Southern District of New York. I must also
add that the two copies of these affidavits which
were received in evidence at the extradition hear
ing were certified in the manner provided for by
section 23 of the Canada Evidence Act.
Counsel for the demanding state argued that
once filed in the court in New York, the two Hong
Kong affidavits became part of the record of the
New York court and, by the same token, docu
ments to which section 23 applied. Therefore, con
cluded counsel, evidence of those affidavits might
"be given in any action or proceeding by ...
certified copy thereof, purporting to be under the
seal of such court."
In my opinion, the error in this very ingenious
argument is that it equates the proof of a docu
ment with the authentication of a document. Sec
tion 23 of the Canada Evidence Act is a rule
concerning the proof of certain documents; it is not
a rule relating to authentication.
Authentication is not an empty formality. Once
an affidavit is authenticated in one of the manners
described in paragraphs (a) or (b) of section 17, its
genuineness, not only as a document, but also as
an affidavit is established. The situation is entirely
different where a court official in New York certi
fies in the manner provided in section 23 of the
Canada Evidence Act that a certain document is a
true copy of another document filed in his court,
which document appears to be an affidavit made
in Hong Kong. Such a certification merely estab
lishes that the certified copy is a faithful reproduc
tion of the original; it does not establish, in any
way, the genuineness of the original document. In
other words, the certificate of the New York court
in this case, establishes that two documents, identi
cal with the certified copies, have been filed in that
court; it does not establish that the two original
documents are really statements made under oath.
As all the evidence adduced against the appli
cant at this extradition hearing was thus contained
in documents that should not have been received in
evidence, it follows, in my view, that the decision
under attack should be set aside.
* * *
RYAN J.: I concur.
* * *
URIE J.: I agree.
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.