T-5254-81
Government of the Republic of Italy (Applicant)
v.
The Honourable Mr. Justice Jean-Guy Boilard
and Francesco Piperno (Respondents)
Trial Division, Addy J.—Montreal, November 2;
Ottawa, November 4, 1981.
Prerogative writs — Mandamus and certiorari — Extradi
tion — Application for a writ of mandamus, with a writ of
certiorari in aid thereof ordering the respondent Boilard J. to
admit as evidence depositions taken in Italy — Government of
Italy seeks to extradite respondent Piperno — Decision of the
Court was rendered in the course of the hearing in accordance
with its duty to decide questions of the admissibility of
evidence in accordance with Canadian legislation — Canadian
law would not permit a person to be tried in Canada for a
similar offence committed here based on mere affirmations —
Italian law provides for affidavits and solemn affirmations —
Application dismissed — Extradition Act, R.S.C. 1970, c.
E-21, ss. 13, 16 — Canada Evidence Act, R.S.C. 1970, c.
E-10, ss. 14(1), 15.
APPLICATION.
COUNSEL:
Joseph Nuss, Q.C. for applicant.
Michel Denis for respondents.
SOLICITORS:
Ahern, Nuss & Drymer, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
ADDY J.: This motion was made (pursuant to
section 18 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10) for the issuance of a writ of
mandamus with a writ of certiorari in aid thereof,
addressed to the Honourable Mr. Justice Jean-
Guy Boilard, ordering him to admit as evidence
the depositions taken in Italy and contained in the
documents filed before him on October 21, 1981
bearing for identification purposes, Exhibit Nos.
VD-1 (VD-1a); VD-2 (VD-2a); VD-4 (VD-4a);
and VD-5 (VD-5a); and for a request that the
Court quash and vacate the judgment rendered by
the Honourable Mr. Justice Jean-Guy Boilard on
October 22, 1981, in which he refused to admit in
evidence the depositions contained in the said
exhibits, in the matter of:
The application by the Government of the Republic of Italy for
the extradition of Francesco Piperno from Canada to Italy.
(Montreal District No. 500-27-14588-810 and No. 38-054-
816.)
REASONS
(Summary of reasons given orally at the close of the hearing in
Montreal on Monday, November 2, 1981. Order dismissing the
application issued on the same day.)
This application cannot be allowed for two rea
sons: firstly, the very nature of the application
having regard to the pertinent circumstances;
secondly, the subject-matter.
1. Nature and circumstances of the application:
The application is based exclusively on a ques
tion of the admissibility of evidence; there is no
suggestion of an excess of jurisdiction, of a refusal
to exercise jurisdiction, of a substantive defect in
the pleadings before a lower court, of a denial of
natural justice or of a refusal to hear one of the
parties to the case. The decision of the Court was
rendered in the course of the hearing strictly in
accordance with its duty to decide questions of the
admissibility of evidence in accordance with the
provisions of sections 13 and 16 of the Extradition
Act, R.S.C. 1970, c. E-21, and section 15 of the
Canada Evidence Act, R.S.C. 1970, c. E-10. The
hearing before the Court is not over, and a remedy
exists in law (namely, section 28 of the Federal
Court Act) to rectify this decision in the event that
it is incorrect and would affect the final decision.
2. The subject-matter:
I accept and approve the reasons stated by
Boilard J. and the precedents and legislation cited
by him, subject however to the following observa
tions with regard to R. v. Governor of Pentonville
Prison, ex parte Singh'.
I would add:
(i) With regard to Singh, it has no application
in Canada in so far as it may be regarded as
I [1981] 3 All E.R. 23.
supporting the admissibility in Canadian courts of
any evidence similar to that which formed the
subject-matter of the order by Bollard J., submit
ted in the course of a criminal proceeding (see
section 13 of the Extradition Act).
(ii) I accept as a general principle that a treaty
should be given a liberal and not a strict interpre
tation in order to facilitate the full application of
the agreement between the two countries. How
ever, as an exception to this general rule, any
provision in a treaty affecting the freedom of the
individual in Canada or relating to criminal or
penal law, must invariably be strictly interpreted
in favour of the individual and of his rights, and
not in favour of the signatory countries, since all
Canadian statutes must be so interpreted in such
circumstances.
(iii) In applying section 14 of the Extradition
Act account should be taken of the provisions of
subsection 15(1) of the Canada Evidence Act,
which stipulates that a solemn affirmation can
only be used in evidence in a criminal proceeding
in place of sworn testimony when the witness
refuses to be sworn or states that he entertains
conscientious objections to being sworn.
(iv) In the case of a charge before a justice of
the peace, the testimony must be sworn or ren
dered pursuant to a solemn affirmation in accord
ance with the provisions of subsection 14(1) of the
Canada Evidence Act. It would be inconceivable
that, in a case which must be heard "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" (see
section 13 of the Extradition Act), the Court could
by an executory judgment based on affirmations
which were neither sworn to nor made pursuant to
a solemn affirmation in accordance with section 16
of the Extradition Act, deprive a person of his
freedom and authorize his arrest and transfer
abroad to answer a criminal charge, while a justice
of the peace in Canada is not entitled, on the basis
of simple affirmations, to require that same person
to be tried in Canada for a similar offence commit
ted in this country.
(v) Article 449 of the Italian Code of Procedure
provides for the use of affidavits. It also provides
for the use of solemn affirmations. Affidavits
could probably have been obtained and duly
authorized for use in evidence here in Canada
before the Extradition Court, even though such
documents were not obtained as part of the origi
nal hearing before the magistrate in Italy.
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.