A-292-79
Robert James Watson (Applicant)
v.
The United States of America (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.—
Vancouver, December 9; Ottawa, December 22,
1980.
Judicial review — Extradition — Application to review
decision of Judge to issue warrant of committal re the extradi
tion of applicant to the U.S. — Documentary evidence not
admissible under ss. 16 and 17 of Extradition Act — Whether
it is admissible pursuant to s. 3 of the Act and Art. 10(2) of the
Canada-U.S. Treaty on Extradition — Extradition Act,
R.S.C. 1970, c. E-21, ss. 3, 16, 17 — Treaty on Extradition
between Canada and the United States, Art. 10(2) — Interpre
tation Act, R.S.C. 1970, c. 1-23, s. 10 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside the
decision of an Extradition Judge to issue a warrant of commit
tal for the extradition of the applicant to the United States.
Since it is common ground that the documentary evidence
submitted at the hearing was not admissible under sections 16
and 17 of the Extradition Act, the sole question is whether it
was admissible pursuant to section 3 of the Act and Article
10(2) of the Canada-U.S. Treaty of Extradition. Applicant
argues that section 3 cannot apply because it refers only to the
extradition agreements in existence at the time of the enact
ment of the statute and because there is no inconsistency
between sections 16 and 17 of the Act and Article 10(2) of the
Treaty. He also submits that in any event the documents had
been wrongly admitted in evidence because they do not meet
the requirements of Article 10(2).
Held, the application is allowed. The first argument based on
the present tense ("there is") in section 3 of the Act is
ill-founded. It ignores section 10 of the Interpretation Act
according to which the law shall be considered as always
speaking. The second argument also fails. It cannot be asserted
that there is no conflict since sections 16 and 17 of the Act and
Article 10(2) of the Treaty prescribe different conditions
respecting the admissibility of documentary evidence. The third
argument is allowed. The certificates accompanying the three
Court documents (Exhibit A) do not constitute an authentica
tion of those documents by an officer of the Department of
State of the U.S. A person authenticates a document when it
certifies its genuineness. This does not appear to have been
done by such an officer. The same applies to Exhibit B.
APPLICATION for judicial review.
COUNSEL:
D. G. McCrea for applicant.
B. T. Sedgwick for respondent.
SOLICITORS:
Rosenbloom, McCrea & Leggatt, Vancouver,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against the decision of a judge under the
Extradition Act (R.S.C. 1970, c. E-21) to issue a
warrant of committal for the extradition of the
applicant to the United States of America.
The applicant's only ground of attack relates to
the admission in evidence of certain documents.
The applicant had argued at the extradition hear
ing that those documents were not admissible
because they were not authenticated as required
by sections 16 and 17 of the Extradition Act.' The
Extradition Judge did not express any opinion on
this particular ground of objection. He neverthe
less admitted the documents because, in his view,
they complied with the requirements of Article
' Those two sections 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.
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 affirmation
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.
10(2) of the Treaty on Extradition between
Canada and the United States of American and
were admissible in evidence by virtue of section 3
of the Extradition Act'.
It is common ground that the documentary evi
dence admitted by the Extradition Judge was not
admissible under sections 16 and 17 of the Act.
The sole question to be answered, therefore, is
whether it was admissible pursuant to section 3 of
the Act and Article 10(2) of the Treaty.
Counsel for the applicant submitted that it was
not. In support of that submission he put forward
three arguments.
First, he said that section 3 of the Act has no
application in this case because the Treaty with
the United States was entered into after the
coming into force of the Act. He stressed that
section 3 applies "in the case of any foreign state
with which there is an extradition arrange
ment ...". [Emphasis added.] According to coun
sel, the use of the present tense ("there is") in that
section indicates that it refers only to the extradi
tion agreements that were in existence at the time
of the enactment of the statute.
That argument is obviously ill-founded. It
ignores section 10 of the Interpretation Act,
R.S.C. 1970, c. I-23, according to which "the law
shall be considered as always speaking, and when
ever a matter or thing is expressed in the present
tense, it shall be applied to the circumstances as
they arise ...".
2 Article 10(2) of the Treaty reads as follows:
ARTICLE 10
(2) The documentary evidence in support of a request for
extradition or copies of these documents shall be admitted in
evidence in the examination of the request for extradition
when, in the case of a request emanating from Canada, they
are authenticated by an officer of the Department of Justice
of Canada and are certified by the principal diplomatic or
consular officer of the United States in Canada, or when, in
the case of a request emanating from the United States, they
are authenticated by an officer of the Department of State of
the United States and are certified by the principal diplomat
ic or consular officer of Canada in the United States.
3 That section reads:
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.
The applicant also argued that section 3 has no
application in this case because, in his view, there
is no inconsistency between sections 16 and 17 of
the Act and Article 10(2) of the Treaty. This
argument must also be rejected. Both the Act (in
sections 16 and 17) and the Treaty (in Article
10(2)) prescribe conditions on which documentary
evidence may be admitted in extradition proceed
ings. As the conditions prescribed by the Treaty
and the Act are different, I do not see how it can
be asserted that there is no conflict between the
Treaty and the Act.
The applicant's final submission was that, in any
event, the documents had been wrongly admitted
in evidence because they do not meet the require
ments of Article 10(2) of the Treaty. More pre
cisely, counsel for the applicant argued that those
documents do not appear to be authenticated by
an officer of the Department of State of the
United States. At the end of the hearing, counsel
for the respondent conceded the validity of that
argument and, in my view, not without reasons.
The documents here in question are identified as
Exhibits A and B. Exhibit A is a bundle of three
documents and three certificates. The three docu
ments appear to be copies of three court docu
ments from the United States District Court for
the District of Idaho; the first certificate is signed
by a judge of that Court and certifies the three
documents to be true copies of court documents;
the second certificate, under the seal of the
Department of Justice of the United States, certi
fies that the judge who signed the first certificate
is really a judge of the United States District
Court for the District of Idaho; finally, the third
certificate, signed by an officer of the Department
of State, merely certifies that the second certifi
cate "is under the seal of the Department of
Justice of the United States of America, and that
such seal is entitled to full faith and credit." These
certificates, in my view, do not constitute an
authentication of the three court documents by an
officer of the Department of State. In my opinion,
a person authenticates a document when it certi
fies its genuineness; and, in this case, this does not
appear to have been done by an officer of the
Department of State as required by Article 10(2)
of the Treaty. The same remarks apply to the
document that was admitted as Exhibit B.
For these reasons, I would allow this applica
tion, set aside the decision under attack and refer
the matter back to the Extradition Judge for deci
sion on the basis that Exhibits A and B are not
admissible in evidence under Article 10(2) of the
Treaty.
* * *
HEALD J.: I concur.
* * *
URIE J.: I concur.
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.