T-657-86
Robert Daniel MacDonald (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: MACDONALD V. CANADA
Trial Division, Reed J.—Toronto, March 16;
Ottawa, March 19, 1987.
Extradition — Warrant of extradition referring to return to
Canada to face drug charges — Denied bail at hearing —
Australian government consenting to plaintiffs detention to
serve unexpired sentence for theft and robbery — Validity of
consent — Re R. v. Crux and Polvliet judicially considered —
Legislation not preventing Attorney General of Australia from
consenting to enlargement of detention grounds — Extradition
(Commonwealth Countries) Act, 1966 (Aust.), 1966, No. 75 —
Extradition Act, R.S.C. 1970, c. E-21, s. 33 — Federal Court
Rules, C.R.C., c. 663 R. 419(1)(a).
Estoppel — Plaintiff attacking validity of consent by Attor
ney General of Australia to detention in Canada in respect of
offences unrelated to those for which extradited — Having
relied on validity of consent in appeal against conviction and
sentence to Ontario Court of Appeal — Abuse of process —
Statement of claim struck out.
This is an application to strike out the statement of claim on
the ground that it discloses no cause of action. The plaintiff is
seeking a declaration that the Australian government's consent
to his extended detention is invalid. The plaintiff was extradited
from Australia under a warrant that referred only to his return
to Canada to face drug charges. The plaintiff applied for and
was granted a bail hearing, but bail was denied. Subsequently
the Australian government consented to his detention to serve
the balance of a sentence for offences unrelated to those in
respect of which he had been extradited. The plaintiff was
convicted of the drug charges. On appeal against conviction
and sentence, he relied on the validity of the Australian govern
ment's consent in arguing that the Trial Judge, in calculating
sentence, had misapprehended the length of the unexpired
sentence for theft and robbery. The Court of Appeal gave effect
to that argument in reducing his sentence. The defendant
argues that the validity of the consent cannot be attacked
merely because it was retroactively given and that the plaintiff,
having relied on the validity of the consent before the Court of
Appeal, is estopped from attacking its validity.
Held, the application should be allowed.
Nothing in the Australian Extradition Act nor in section 33
of the Canadian Act prevents the Australian government from
enlarging the grounds for detaining the accused in Canada,
even though at the time the consent was given the accused was
no longer in Australia. In Re R. v. Crux and Polvliet, the terms
of an extradition warrant were amended to allow for the laying
of additional charges after the accused had been brought into
Canada. The reasoning in Crux and Polvliet applies here. The
plaintiffs argument, that the Crux and Polvliet case applied
only when an extended consent was given before the accused
was dealt with in the country to which he had been returned
and that the application for a bail hearing and the subsequent
hearing precluded the extended consent being given thereafter,
could not be accepted. In Crux and Polvliet the Court was
referring to proceedings dealing with the charges for which the
accused had been extradited, not some preliminary proceeding
such as a bail application. Also, that principle seems inappli
cable to a case where detention is for the purpose of serving an
unexpired sentence, although where the length of the unexpired
term affects the determination of the sentence for the second
offence, it would seem important that the consent be given
before the sentence is imposed. Also, in the Crux and Polvliet
case the requirement of prior consent was set out with respect
to a consent given to allow the laying of additional charges
arising out of the facts upon which the original charge was
based. That is not the situation here. For the plaintiff to attack
the validity of the consent upon which he relied in the Court of
Appeal constitutes an abuse of process.
CASE JUDICIALLY CONSIDERED
APPLIED:
Re R. v. Crux and Polvliet (1971), 2 C.C.C. (2d) 427
(B.C.C.A.).
COUNSEL:
David P. Cole for plaintiff.
Marlene I. Thomas for defendant.
SOLICITORS:
David P. Cole, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
REED J.: The defendant brings a motion to have
the plaintiff's statement of claim struck out on the
ground that it discloses no cause of action: refer
paragraph 419(1)(a) of the Federal Court Rules
[C.R.C., c. 663].' That request has been granted.
To understand the reasons for so doing it is neces
sary, first, to set out the relevant facts.
The plaintiff while on day parole in May 1981
did not return to the penitentiary where he was
then an inmate. In August of that same year
warrants for his arrest were issued; he was charged
with conspiring to import and traffic in heroin. He
was subsequently apprehended in Australia and
was surrendered to Canadian authorities on
November 11, 1981 pursuant to a warrant of
extradition. The warrant of extradition referred to
his return to Canada for the purpose of facing the
August 1981 drug charges. Once in Canada he
applied for a bail hearing. This was initially
refused but on appeal before Mr. Justice White,
the Attorney General of Canada agreed that such
a hearing should be held. The order by Mr. Justice
White and the consent of the Attorney General
with respect thereto were given on the ground that
the warrant of extradition referred only to the
plaintiff standing trial with respect to the August
1981 drug charges. At the same time, the consent
of the Attorney General to the order for a bail
hearing was given on conditional terms:
The consent of the Attorney-General of Canada to the issuance
of an order in the foregoing terms is made without prejudice to
whatever remedies or proceedings may be available in the
future to the Attorney-General of Canada in the event that the
Attorney General of Australia consents or otherwise agrees to
the detention of the Applicant on the balance of the sentence on
the said robbery and break and enter charges.
The plaintiff was denied bail at the subsequent
bail hearing and on October 29, 1982 the Australi-
an government consented to the plaintiff being
detained in Canada for the purposes of serving the
unexpired term of the sentence he had been serv
ing in May 1981:
' Rule 419(1)(a) of the Federal Court Rules reads as
follows:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out,
with or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be.
The Australian High Commission presents its compliments to
the Department of External Affairs and has the honour to
request the Department's assistance in passing to the relevant
authorities the following information.
The Australian Acting Attorney-General has consented to
Robert Daniel MacDonald being detained in Canada to serve
the balance of an eleven-and-a-half year sentence imposed on
him for the offences of theft and robbery, being offences for
which his extradition was not granted in November 1981.
The Australian High Commission avails itself of this opportu
nity to renew to the Department of External Affairs its assur
ances of its highest consideration.
A trial with respect to the drug charges ensued
and in January of 1983 the plaintiff was convicted
of conspiring to import heroin and was sentenced
to a term of 12 years, such to be served consecutive
to any term he was then serving. The plaintiff
appealed this conviction and sentence. The Ontario
Court of Appeal upheld the conviction but reduced
the sentence to 9 years. 2 The reduction in sentence
was made in response to the plaintiffs argument
that the Trial Judge, in calculating sentence, had
misapprehended the length of the unexpired sen
tence which still remained with respect to the theft
and robbery charge. In presenting this argument
the plaintiff relied on the validity of the October
1982 consent given by the Australian government.
Z The endorsement of the panel of the Ontario Court of
Appeal hearing the sentence appeal, the panel being comprised
of Dubin, Cory and Grange J.J.A., reads in part:
With respect to sentence, the trial judge imposed a sentence
of 12 years consecutive to the balance of a sentence then
outstanding. It was clear from his reasons that he thought
the remanet was four and one-half years and that he intend
ed his total sentence to be one of 16 1 / 2 years inclusive of the
remanet. We were advised by counsel that the remanet was
in fact seven and one-half years. The validity of the appel
lant's detention to serve the remanet was challenged before
Mr. Justice White, who made an order permitting the appel
lant to apply for interim judicial release on the charge of
conspiracy which is before us. The basis of the order of Mr.
Justice White was premised on the extradition of the appel
lant from Australia being confined to the conspiracy count,
and that the government of Australia had not agreed that he
be extradited for his being unlawfully at large. Subsequently,
the government of Australia has agreed, and there does not
appear to be any legal reason why the appellant should not
serve his remanet.
(Continued on next page)
The plaintiff by his statement of claim in this
case, now seeks a declaration that that consent was
invalid, the consequences thereof being that the
plaintiff should only be required to remain in
Canada to serve the sentence imposed with respect
to the drug offences and not to serve any unex-
pired term of the earlier sentence.
The defendant argues that the plaintiff's claim
in this regard discloses no reasonable cause of
action because: (1) the Australian government's
consent must be taken as valid on its face—there is
no authority to go behind an agreement between
two sovereign states; (2) validity of the consent
cannot be attacked merely because it was retroac
tively given; (3) the plaintiff having relied on the
validity of that consent before the Ontario Court
of Appeal issrestopped from attacking the valid
ity of that consent. It is argued that if the plaintiff
has a cause of action the proper forum is the
Ontario Court of Appeal by way of an application
for a reconsideration of sentence.
I do not propose to deal with the first ground of
attack because it is obvious that the others are well
founded and adequately dispose of the matter in
issue.
In Re R. v. Crux and Polvliet (1971), 2 C.C.C.
(2d) 427 (B.C.C.A.) the validity of an extradition
warrant, the terms of which were amended after
the accused had been brought into Canada, was
challenged. The terms had been amended to allow
for the laying of chargès additional to those origi
nally contemplated. The relevant legislation was
the Fugitive Offenders (Bahama Islands) Order,
1967 which extended, with certain modifications,
the Fugitive Offenders Act, 1967 (U.K.), 1967, c.
68 to the Bahamian Territory. The relevant
Canadian legislation was section 33 of the Extra
dition Act, R.S.C. 1952, c. 322 which is identical
to that presently in force.
(Continued from previous page)
Thus, to give effect to the trial judge's intent, leave to appeal
sentence is granted, and his sentence of 12 years is reduced to
9 years consecutive to the 7 1 / 2 years which is outstanding on
the prior sentence.
Statement of Defence, para. 9
(Paragraph 7 of Written Submissions of defendant dated Feb-
ruary 27, 1987)
The British Columbia Court of Appeal con
sidered the Fugitive Offenders (Bahama Islands)
Order, 1967 and section 33 of the Canadian legis
lation and concluded, at page 432 of its judgment,
that there was nothing in either legislation which
precluded the Governor of the Bahamas, after the
accused had left that colony, from giving consent
to an enlarged range of charges being laid.
The relevant legislation in the present case is
section 11(3)(a)(ii) of the Extradition (Common-
wealth Countries) Act, 1966 (Aust.), 1966, No. 75
and section 33 of the Extradition Act, R.S.C.
1970, c. E-21. The first provides:
11... .
(3.) The Attorney-General shall not issue a warrant under
sub-section (2.) of section 17 of this Act in respect of a fugitive
from a declared Commonwealth country unless provision is
made by the law of that country, or that country has entered
into an agreement with, or given an undertaking to, the Com
monwealth, by virtue of which the fugitive will not, unless he
has been returned, or has had an opportunity of returning, to
Australia—
(a) be detained or tried in that country for any offence that
is alleged to have been committed, or was committed,
before his surrender other than—
(ii) any other extradition crime in respect of which the
Attorney-General consents to his being so detained
or tried, as the case may be;
The second provides:
33. Where any person accused or convicted of an extradition
crime is surrendered by a foreign state, in pursuance of any
extradition arrangement, he is not, until after he has been
restored or has had an opportunity of returning to the foreign
state within the meaning of the arrangement, subject, in contra
vention of any of the terms of the arrangement, to a prosecution
or punishment in Canada for any other offence committed prior
to his surrender, for which he should not, under the arrange
ment, be prosecuted.
I see nothing in these legislative provisions
which prevents the Attorney General of Australia
consenting to an enlargement of the grounds for
detaining the accused in Canada even though, at
the time that consent was given, the accused was
no longer in Australia. The reasoning in the Crux
and Polvliet case applies equally to the present
situation. What is more, allowing an enlargement
of the grounds for detention, in a case such as the
present, offends no purpose for which the rule of
specialty, as counsel for the defendant described it,
is imposed. The purpose behind that rule is to
prevent abuse of the extradition process; refer: La
Forest, G. V. Extradition to and from Canada,
2nd ed., 1977, pages 25-31 and 149-152. In the
present case there can be no abuse because the
Attorney General of Australia consented to the
detention of the plaintiff for the purpose of requir
ing him to serve his unfinished term for the theft
and robbery charges.
Counsel for the plaintiff argued that the Crux
and Polvliet case applied only when an extended
consent had been given before the accused was
dealt with in the country to which he had been
returned (page 432 of the decision). He argued
that in the present case the proceedings of August
1982 respecting an application for a bail hearing
and the subsequent bail hearing itself were pro
ceedings which dealt with the accused and thereaf
ter, there could be no extended extradition consent
given. I do not agree. It is clear that the proceed
ings to which the Court was referring in Crux and
Polvliet were those dealing with the charges for
which the accused had been extradited not some
preliminary proceeding such as a bail application.
What is more, that principle hardly seems appli
cable at all to a case where detention is for the
purpose of serving an unexpired sentence although
where the length of the unexpired term enters into
the consideration of the appropriate sentence for
the second offence it would seem important that
the consent be given before the sentence is
imposed. In the Crux and Polvliet case the
requirement of prior consent was set out with
respect to a consent given to allow the accused to
be charged with additional offences which arise
out of the facts of the offence originally charged.
No such situation pertains in this case.
The above considerations clearly indicate that
the plaintiff's claim in this case discloses no cause
of action. But if more support for striking out the
plaintiff's claim were required it can be found, in
my view, in the fact that the plaintiff, before the
Ontario Court of Appeal, relied on the validity of
the very consent which he now attacks. He relied
on it to persuade that Court to reduce the sentence
originally imposed by the Trial Judge. In such
circumstances, to now attack the validity of that
consent in this Court for the purpose of having the
sentence reduced still further, is an abuse of pro
cess. In such circumstances, it is my view that if
any attack on the validity of the consent is now to
be made it appropriately belongs before the
Ontario Court of Appeal by way of a request for
reconsideration of sentence.
For the reasons given the plaintiff's statement of
claim is struck out.
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.