A-664-78
John H. Meier (Applicant)
V.
United States of America (Respondent)
Court of Appeal, Jackett C.J., Urie J. and Kelly
D.J.—Vancouver, March 28, 1979.
Judicial review — Extradition — Extradition Judge grant
ing extradition of fugitive to United States — Offences fugitive
charged with not involving interstate transportation or use of
the mails — Whether or not jurisdiction of Extradition Judge
can be established if offences lacking element of interstate
transportation or use of the mails — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Treaty on Extradition
between Canada and the United States of America, Washing-
ton, December 3, 1971 (Canada Gazette, Part 1, April 3, 1976,
p. 1521), Article 2, section (3).
This is a section 28 application to review the decision of an
Extradition Judge granting the request for extradition of the
fugitive to the United States. Applicant submits that three facts
are necessary to establish the Extradition Judge's authority to
grant extradition: 1. that the offence be against a federal law of
the United States; 2. that an offence to which section (1) or (2)
of Article 2 applies be a substantial part of the offence; and 3.
that transporting, and use of the mails or interstate facilities be
elements of the offence charged. Fugitive's counsel argues that
the offences with which the fugitive was charged are not within
the category of offences for which the right of extradition is
conferred by the Treaty because the offences do not include the
third element necessary to establish jurisdiction. The Court
must interpret Article 2 of the Treaty, and particularly section
(3) of that Article.
Held, the application is dismissed. To come within Article 2
section (3) the offence charged must be one against a federal
law and one of the substantial elements of it must be one of the
offences listed in the schedule to the Treaty. The applicability
of the Treaty is brought down on the fugitive by his deviant
acts and remains related to the consequences of those acts.
Where, as here, the fugitive employed conduct which constitut
ed a listed offence—forgery—to accomplish the infraction of
the federal law, he had brought himself within the ambit of
section (3). No transportation, transporting, use of the mails or
interstate facilities was involved and even if it had been, that
fact would have been immaterial to the liability of the fugitive
to be extradited.
APPLICATION for judicial review.
COUNSEL:
John R. Taylor and Dale Vick for applicant.
Paul W. Halprin for respondent.
SOLICITORS:
John Taylor Associates, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
KELLY D.J.: This is a section 28 application to
review the decision of His Honour Judge Paris of
the County Court of British Columbia sitting as an
Extradition Judge under the Extradition Act,
R.S.C. 1970, c. E-21 ("the Act") whereby he
granted the request for the extradition of the
fugitive to the United States of America.
The request for extradition, made to Canada,
sought the delivery of the fugitive to the United
States of America because he had been charged, in
the United States District Court for the District of
Utah, Central Division, with the following
offences:
COUNT I
That on or about November 10, 1976, and January 5, 1977,
in the Central Division of the District of Utah, JOHN H. MEIER
did corruptly endeavor to influence, obstruct and impede the
due administration of justice by submitting and causing to be
submitted before the United States District Court for the
District of Utah in the case of Hughes Tool Company (now
Summa Corporation) v. John H. Meier, et al, C-71-72, the
following documents which said JOHN H. MEIER then knew had
been fabricated and were not what they purported to be:
A document purportedly signed by Howard R. Hughes show
ing the date of January 1974 in the top right-hand corner,
also marked as Exhibit A in a Motion to Postpone Trial filed
on behalf of JOHN H. MEIER on November 10, 1976, and also
marked as defendant's Exhibit C-331; and
A document purportedly signed by Howard R. Hughes
regarding JOHN H. MEIER dated June 21, 1974, also marked
as Exhibit B in the Motion to Postpone Trial filed on behalf
of JOHN H. MEIER on November 10, 1976, and also marked
as defendant's Exhibit UU;
in violation of 18 United States Code, Section 1503.
COUNT II
That during the period from on or about November 9, 1976,
to on or about March 27, 1978, in the Central Division of the
District of Utah and elsewhere, JOHN H. MEIER did corruptly
endeavor to influence, obstruct, and impede the due administra
tion of justice by publicizing and causing to be publicized a
document which purported to be a memorandum from Chester
Davis which document implied that improper arrangements
had been made between United States District Court Judge
Aldon J. Anderson and officials of the Summa Corporation
regarding Judge Anderson's pending rulings in the case of
Hughes Tool Company (now Summa Corporation) v. John H.
Meier, C-71-72, whereas, as JOHN H. MEIER then and there
well knew, the said document was a complete fabrication and
was not prepared by, or with the consent of, Chester Davis; in
violation of 18 United States Code, Section 1503.
The legality of the Treaty * and the applicability
of its terms has not been attacked, and no question
has been raised as to the jurisdiction of the Judge
to enter upon the hearing of the said proceedings.
The said Judge was, therefore, properly qualified
to issue the warrant for the apprehension of the
fugitive on such evidence or after such proceedings
as, in his opinion, would, subject to the Extradi
tion Act, justify the issue of his warrant if the
crime of which the fugitive is accused had been
committed in Canada. Before issuing the warrant,
such a Judge must be of the opinion that the crime
of which the fugitive has been accused is one for
which an order for extradition might be made and
that the evidence produced before him, according
to the laws of Canada, would justify his committal
for trial if the crime had been charged in Canada.
The only attack made upon the order pressed by
counsel for the fugitive was that the offences with
which the fugitive was charged were not within the
category of offences for which the right of extradi
tion is conferred by the Treaty. Having regard to
the decision of the Supreme Court of Canada in
U.S.A. v. Shephard [1977] 2 S.C.R. 1067, counsel
for the applicant did not pursue, in this Court, his
contention that the evidence adduced before the
Extradition Judge would not have justified the
fugitive's committal for Trial.
To decide as to whether the fugitive is lawfully
extraditable on account of being charged with the
offences above described requires the interpreta
tion of Article 2 of the Treaty and particularly
section (3) thereof.
*Treaty on Extradition between Canada and the United
States of America, dated at Washington, December 3, 1971
(Canada Gazette, Part I, April 3, 1976, p. 1521).
Section (1) of Article 2 authorizes the delivery
up of persons according to the provisions of the
Treaty for any of the offences listed in the
schedule annexed to the Treaty, provided that such
offences are punishable by the laws of both the
contracting parties by a term of imprisonment
exceeding one year.
Section (2) provides that extradition may be
granted for attempts to commit, conspiracy to
commit or being a party to any of the offences
listed in the schedule.
Section (3) reads as follows:
(3) Extradition shall also be granted for any offense against
a federal law of the United States in which one of the offenses
listed in the annexed Schedule, or made extraditable by para
graph (2) of this Article, is a substantial element, even if
transporting, transportation, the use of the mails or interstate
facilities are also elements of the specific offense.
Unlike sections (1) and (2) which apply equally
to extraditions from Canada and from the United
States, section (3) pursuant to which the extradi
tion of this fugitive is sought, relates only to
extradition from Canada.
It is to be noted that in the Treaty the word
"offense" is used to describe both (1) the deviant
conduct in which the fugitive is alleged to have
engaged, i.e. the specific infraction of the law, and
(2) the generic description of the elements con
stituting the essentials of some recognizable crime,
e.g. murder, bribery, forgery, perjury, or arson. In
general, as we understand it, the definition of
"crimes" and the provision of punishment therefor
in the United States is a field of legislation
reserved to the individual States of the Union and
the legislative authority of the Congress of the
United States does not ordinarily extend to them;
however, federal laws may be enacted there creat
ing offences and providing punishment therefor,
particularly where the constituents of the offence
created include the transporting of persons or
property across an interstate boundary. But not all
of such offences against a federal law attract
extradition; certain of them may only be the foun
dation of an extradition proceeding in Canada if
the conditions and limitations of section (3) are
met.
On behalf of the fugitive, it was submitted that
in this case three facts were required to be estab
lished in order that the Extradition Judge might
exercise jurisdiction to grant extradition for either
of the offences charged: 1. that the offence be an
offence against a federal law of the United States;
2. that one of the offences to which section (1) or
section (2) of Article 2 applies be a substantial
element of the offence charged; 3. that transport
ing, transportation and the use of the mails or
interstate facilities also be elements of the offence
charged.
The evidence before the Extradition Judge
demonstrated that the alleged conduct of the fugi
tive in corruptly endeavouring to influence,
obstruct, or impede the due administration of jus
tice would, if proven, constitute an offence against
a federal law of the United States, and also estab
lished that the means by which the aforesaid
offence was alleged to have been brought about—
forgery, an offence listed in clause 17 of the
schedule to the Treaty—was a substantial element
in the federal offence charged: transporting, trans
portation, the use of the mails or interstate facili
ties by the fugitive was not alleged in the indict
ment and therefore is not alleged as an element of
the specific offence with which he was charged,
nor was any attempt made before the Extradition
Judge to prove any of such acts.
It was submitted on behalf of the fugitive that
his extradition under section (3) is not available
because none of transporting, transportation, the
use of the mails or interstate facilities is also an
element of the offence of which he is charged.
After careful consideration of section (3) in the
light of the submissions made on behalf of the
fugitive, we are unable to accept the interpretation
of it which would be necessary if we were to
accede to the submissions of the fugitive. In our
opinion, section (3) as it applies to this fugitive
should be construed as if it were cast as follows:
If a person sought to be extradited has been charged with an
infraction of a law of the United States and a substantial
element of the conduct constituting the infraction charged
would of itself constitute one of the offenses listed in the
annexed schedule, extradition shall be granted, notwithstanding
that transporting, transportation, the use of the mails, or
interstate facilities are also elements of the specific infraction
charged.
In other words, to come within Article 2 section
(3) the offence charged must be one against a
federal law and one of the substantial elements of
it must be one of the offences listed in the schedule
to the Treaty. The applicability of the Treaty is
brought down on the fugitive by his deviant acts
and remains related to the consequences of those
acts. Where, as here, the fugitive employed con
duct which constituted a listed offence—forgery—
to accomplish the infraction of the federal law, he
had brought himself within the ambit of section
(3). No transportation, transporting, use of the
mails or interstate facilities was alleged to have
been involved and even had it been, that fact
would have been immaterial to the liability of the
fugitive to be extradited.
Three submissions of counsel for the applicant
should be mentioned to show that they have not
been overlooked, viz.; (A) that Article 2 section
(3) must be interpreted as though the word
"which" in the words "in which one of the offenses
listed ... is a substantial element" referred to
"federal law" and not to "any offense"; (B) that
Article 2 section (3) must be interpreted as though
it required that the offence listed that must be "a
substantial element" has to be a federal offence;
(C) that Article 2 section (3) must be interpreted
as though the concluding words thereof beginning
with "even if' restricted the ambit of the provi
sions to offences of which "transporting, transpor
tation, the use of the mails or interstate facilities"
is or are elements.
We have not been able to accept any of these
submissions as representing a fair reading of
Article 2 section (3) as phrased. In our opinion,
the decision of the Extradition Judge that the
offences charged were extraditable discloses no
error in law; since we are of the opinion that the
offences charged in the indictment against the
fugitive were ones for which the Treaty authorized
extradition, the application will be dismissed.
APPENDIX
EVEN IF Although; notwithstanding.
Funk & Wagnalls' STANDARD COMPREHENSIVE INTERNA -
TIONAL DICTIONARY
EVEN C. Attached to a hypothetical clause....
For such evil bruits Mr. Touchwood cared not, even if he
happened to hear of them....
Even if there were no other evidence, we should still be justified
in assuming, etc.
OXFORD ENGLISH DICTIONARY
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.