T-127-86
Joseph John Kindler (Applicant)
v.
Minister of Justice and Attorney General of
Canada (Respondents)
INDEXED AS: KINDLER V. CANADA (MINISTER OF JUSTICE)
Trial Division, Pinard J.—Montréal, September
19 and October 3, 1988.
Federal Court jurisdiction — Trial Division — Application
to stay extradition proceedings pending disposition of appeal
from dismissal of s. 18 application to set aside decision to
extradite — Court having jurisdiction to grant relief — Statu
tory grant of jurisdiction conferred by combined effect of
Charter, s. 24 and Federal Court Act, s. 17 — Federal Court
Act, ss. 18 and 50, and Federal Court Rule /909 also confer
ring jurisdiction — Extradition Act and Treaty supporting
statutory grant of jurisdiction — Both Federal Court Act and
Extradition Act "Laws of Canada" as phrase used in Consti
tution Act, /867, s. 101 — Court also having implicit power to
grant stay if effect of carrying out extradition order to render
appeal meaningless.
Extradition — Application to stay proceedings pending
disposition of appeal from refusal to set aside decision to
extradite — Applicant under death sentence in U.S.A. —
Charter infringements — Court having jurisdiction to grant
relief — Extradition procedure to comply with rules of funda
mental justice — Entitled to exercise statutory right of appeal
— Application granted.
Constitutional law — Charter of Rights — Life, liberty and
security — Applicant under death sentence in U.S.A. —
Appellate review of refusal to set aside decision to extradite
pending — Seeking to stay extradition proceedings —
Application allowed — Charter, s. 7 rights involved.
Constitutional law — Charter of Rights — Enforcement —
Applicant alleging breach of Charter, ss. 7 and 12 if extradited
pending disposition of appeal from refusal to set aside decision
to extradite — Applicant under death sentence in U.S.A. —
Application to stay extradition proceedings allowed — Over
riding effect of Constitution Act, 1982, s. 52(1), rendering
inconsistent statutes of no force or effect — Carrying out of
extradition order likely to lead to death of applicant and
breach of Charter, s. 7 — Implication in Charter, s. 24 that
anyone establishing denial of right entitled to "appropriate
and just remedy".
Judicial review — Equitable remedies — Injunctions
Court having jurisdiction to grant stay of extradition proceed
ings pending disposition of appeal from dismissal of refusal to
set aside decision to extradite under Federal Court Act, s. 18
— Stay and injunction considered relief of same nature —
Application of test in American Cyanamid — Appeal raising
important questions of law re: procedural equity in adminis
trative decisions, and observance of Charter guaranteed rights
and freedoms — Denial of stay causing irreparable harm (loss
of life) to applicant — Grant of stay not causing hardship to
respondent.
Practice — Stay of proceedings — Application to stay
extradition proceedings pending disposition of appeal from
refusal to set aside decision to extradite — Power to "stay
proceedings" conferred by Federal Court Act, s. 50 not limited
to Court proceedings.
Practice — Judgments and orders — Stay of execution
Court having jurisdiction under Federal Court Rule 1909 to
stay extradition proceedings pending disposition of appeal
from refusal to set aside decision to extradite — Stay con
stituting "other relief' against order under appeal, as tem
porarily countering effect of order.
Practice — Res judicata — Application to stay extradition
proceedings pending appeal from dismissal of s. 18 application
to set aside decision to extradite — Res judicata not appli
cable to preclude application of Federal Court Act, s. /8 again
when different remedy sought.
Practice — Commencement of proceedings — Although
normal to proceed by way of action against Attorney General,
application for stay of extradition proceeding permitted
Urgency of matter, lack of objection or dispute as to facts
considered.
This was an application to stay extradition proceedings pend
ing disposition of an appeal from the refusal of a section 18
application to review the decision to extradite the applicant
without first seeking an assurance that he would not be execu
ted. Article 6 of the Canada-U.S.A. 1976 Extradition Treaty
provides that where the offence for which extradition is
requested is not punishable by death in the requested State,
extradition may be refused in the absence of sufficient assur
ances that the death penalty will not be carried out. The
applicant argued that if he were to be extradited before his
appeal is heard, his appeal would become meaningless. It was
argued that this would be a flagrant breach of his rights
guaranteed by Charter sections 7 and 12. The respondent
argued that the Trial Division lacked jurisdiction as there was
no law or regulation on the basis of which it could intervene.
Held, the application should be allowed.
The Court had jurisdiction to dispose of the application. The
three requirements set out in the ITO case were met. The
combined effect of Charter section 24 and the Federal Court
Act, section 17 was sufficient to confer jurisdiction. The Court
was a court of competent jurisdiction under Charter section 24,
because this was an application for relief against the Crown or
a Crown servant under section 17 of the Federal Court Act.
The involvement of the Extradition Act and the 1976 Extradi
tion Treaty were important enough to support the statutory
grant of jurisdiction by the federal Parliament. Both the Feder
al Court Act and the Extradition Act were "Laws of Canada"
as that phrase is used in section 101 of the Constitution Act,
1867. Jurisdiction was also conferred by section 18 of the
Federal Court Act, as a stay of proceedings is relief of the same
nature as an injunction. Although the applicant had already
used section 18 to challenge the respondent's decision, res
judicata did not apply because the remedy sought was differ
ent. Jurisdiction was also conferred by section 50 of the Federal
Court Act which allows the Court to "stay proceedings", and is
not limited to proceedings before the Court. What was sought
to be stayed were "proceedings" in that they will not have been
completed until the formal extradition order has been executed
and the applicant turned over to the American authorities. The
Trial Division had jurisdiction to grant the relief under Rule
1909 as the stay of extradition proceedings, which would
temporarily counter the effect of the order, was "other relief'
against the order under appeal. Finally, the Court had an
implicit power to grant a stay if carrying out the extradition
order while the appeal was pending would render the appeal
meaningless. Since Parliament gave applicants the right to seek
judicial review and the right of appeal, it must have intended
that the Federal Court would have the power to stay the
execution of an order so challenged so that it can effectively
exercise both its judicial review and appellate jurisdiction. The
Appeal Division's implied power to stay did not preclude the
Trial Division from having the same implied power by reason of
its earlier involvement. The Rules themselves recognize that the
Trial Division can stay execution of its own judgments even if
an appeal is pending. Finally, the protection of rights under the
Federal Court Act is not exclusively a matter for any one of its
Divisions, unless a specific provision reserves one aspect of such
rights for a particular Division.
The Court could grant the appropriate relief in view of the
overriding effect of the Constitution Act, 1982, section 52,
which renders inconsistent statutes of no force and effect. It is
implied in the Charter, section 24 that anyone who establishes
infringement of his Charter guaranteed rights is entitled to an
appropriate and just remedy. Clearly the carrying out of the
extradition order, which would probably be followed by the
execution of the applicant, would be an infringement of his
Charter, section 7 rights. It could only be done in accordance
with the principles of fundamental justice. It would be a serious
infringement of those principles to deny the stay since the right
of appeal was expressly granted by statute, and since his life is
at stake. The interests of justice require that the applicant be
allowed to fully exercise his statutory right of appeal.
The three-part test in American Cyanamid was met. Denial
of the stay would cause irreparable damage to the applicant,
but granting the stay could not cause any hardship to the
respondent or be contrary to the public interest. The appeal
raises significant questions of law concerning procedural equity
in administrative decisions and observance of the rights and
freedoms guaranteed by the Charter.
Although it would appear that the applicant should have
proceeded by an action because the Attorney General was the
respondent, the procedure used was permitted due to the urgen
cy of the matter, the fact that no objection was taken and
because the facts were not in dispute.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 7, 12, 24.
Constitution Act, 1867, 30 & 31 Viet., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1) s. 101.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52.
Extradition Act, R.S.C. 1970, c. E-21, ss. 18(1 )(a), 25,
26.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2,
17, 18, 27, 50.
Federal Court Rules, C.R.C., c. 663, RR. 2(1),(2), 303,
600(4), 603, 1209, 1213, 1909.
1976 Extradition Treaty, 3 December 1971, Canada-
United States, Can. T.S. 1976, No. 3, Art. 6.
Rules of the Supreme Court of Canada, C.R.C., c. 1512,
R. 126.
Sentencing Code, 42 Pa.C.S.A. § 9701.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO-International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; Manitoba
(Attorney General) v. Metropolitan Stores Ltd., [I987] 1
S.C.R. 110; New Brunswick Electric Power Commission
- v. Maritime Electric Company Limited, [1985] 2 F.C. 13
(C.A.); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486;
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (H.L.).
REFERRED TO:
Mohammad v. Canada (Minister of Employment &
Immigration), A-362-88, judgment dated 14/3/88,
F.C.A., not yet reported; Toth v. Canada (Minister of
Employment & Immigration), 88-A-324, judgment dated
21/6/88, F.C.A., not yet reported; Singh et al. v. Minister
of Employment and Immigration, [1985] 1 S.C.R. 177.
AUTHORS CITED
Tarnopolsky, Walter S. and Beaudoin, Gérald -A. eds
Canadian Charter of Rights and Freedoms, Toronto:
The Carswell Company Limited, 1982.
COUNSEL:
Julius H. Grey and Marie Murphy for
applicant.
Suzanne Marcoux-Paquette and L. Cour-
temanche for respondents.
SOLICITORS:
Grey Casgrain, Montréal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
PINARD J.: On November 15, 1983, in Phila-
delphia, Pennsylvania, the applicant was found
guilty of first-degree murder, conspiracy to
commit murder and kidnapping. On November 16,
1983 a jury recommended that the death penalty
be imposed on him under the Pennsylvania Sen
tencing Code [42 Pa.C.S.A. § 9701].
If the applicant is extradited, therefore, he will
face a death sentence and a strong possibility of
being executed in the state of Pennsylvania.
The fact that the death penalty has not yet
formally been imposed is due to the applicant
escaping from the U.S. on September 19, 1984,
and then not being arrested until April 25, 1985,
near Ste -Adèle in the province of Quebec.
On July 3, 1985 an application to extradite the
applicant was submitted to the Government of
Canada by that of the U.S., under the 1976
Extradition Treaty [3 December 1971, Can. T.S.
1976, No. 3] between these two countries. Pro
ceedings were initiated under the Extradition Act,
R.S.C. 1970, c. E-21, and on August 26, 1985 a
hearing was held before a judge of the Quebec
Superior Court regarding the extradition of the
applicant. Following this hearing a warrant was
issued pursuant to paragraph 18(1)(a) of the
Extradition Act to commit the applicant to prison
until he could be sent to the U.S.
On January 17, 1986 the respondent decided to
allow the applicant to be extradited to the U.S.
without first seeking an assurance from that coun
try that the death penalty would not be imposed on
the applicant, or that if it was imposed it would
not be carried out. Canada could seek this type of
assurance before extraditing the applicant under
Article 6 of the 1976 Extradition Treaty between
Canada and the U.S. Article 6 provides:
ARTICLE 6
When the offense for which extradition is requested is pun
ishable by death under the laws of the requesting State and the
laws of the requested State do not permit such punishment for
that offense, extradition may be refused unless the requesting
State provides such assurances as the requested State considers
sufficient that the death penalty shall not be imposed, or, if
imposed, shall not be executed.
The applicant then decided to challenge this
decision by the respondent in the Federal Court of
Canada. However, on October 22, 1986, before
submitting his application to the Trial Division
under section 18 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10], he managed to escape.
The respondent then tried, but without success, to
obtain an order from this Court that the applicant,
"who had become a fugitive from justice", could
no longer apply for the remedies sought.
The application for judicial review under section
18 of the Act was therefore submitted in the
applicant's absence by his counsel, and by an order
on January 21, 1987 [[1987] 2 F.C. 145 (T.D.)],
Rouleau J. refused to vacate the respondent's deci
sion to allow extradition of the applicant without
first obtaining an assurance that the death penalty
would not be imposed or not carried out.
On February 12, 1987, while the applicant was
still being sought by the police, his counsel on
instructions from the Quebec Bar filed a notice of
appeal against Rouleau J.'s order. Soon after the
very recent arrest of the applicant in Canada, he
confirmed his counsel's mandate to proceed with
this appeal.
By the application at bar, therefore, the appli
cant is simply seeking to stay all further proceed
ings or measures necessary for his extradition to
the U.S., until the Appeal Division of this Court
has disposed of his appeal.
First, counsel for the applicant argued that if his
application is dismissed and his client is extradited
to the U.S., where he runs a high risk of being
executed, his appeal seeking ultimately to set aside
the respondent's decision to allow his extradition,
as he did, will become meaningless. He submitted
accordingly that this would be contrary to the
interests of justice and would result in a flagrant
breach of the rights guaranteed to the applicant by
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], in particular sections 7 and 12. In addi
tion to relying on section 24 of the Charter, he
verbally based his application on sections 18
and 50 of the Federal Court Act, and also on Rule
1909 [Federal Court Rules, C.R.C., c. 663].
Counsel for the respondent, for her part, argued
strictly that the Trial Division of this Court lacked
jurisdiction or authority, contending that there is
no law or regulation on the basis of which it can
intervene as the applicant wishes.
Turning first to the question of jurisdiction, it
should be pointed out that section 24 of the Chart
er allows anyone whose rights or freedoms as
guaranteed by the Charter have been infringed or
denied to apply to a court of competent jurisdic
tion to obtain such remedy as the court considers
appropriate and just in the circumstances.
As this is an application for a stay of extradition
made against the Minister of Justice and Attorney
General of Canada, we are dealing here with an
application for relief against the Crown or a ser
vant of the Crown within the meaning of section
17 of the Federal Court Act, a section the relevant
provisions of which are as follows:
17. (I) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown and, except
where otherwise provided, the Trial Division has exclusive
original jurisdiction in all such cases.
(4) The Trial Division has concurrent original jurisdiction
(b) in proceedings in which relief is sought against any
person for anything done or omitted to be done in the
performance of his duties as an officer or servant of the
Crown.
Further, the involvement of the Extradition Act
and the 1976 Extradiiion Treaty between Canada
and the U.S. is important enough to support the
foregoing statutory grant of jurisdiction by the
federal Parliament. As both the Federal Court Act
and the Extradition Act are "Laws of Canada"
within the meaning in which that expression is
used in section 101 of the Constitution Act, 1867
[30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appen
dix II, No. 5] (as am. by Canada Act, 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1)], I consider that the three essential
requirements to support a finding of jurisdiction in
the Federal Court, as defined below by McIntyre
J. in ITO—International Terminal Operators Ltd.
v. Miida Electronics Inc. et al., [1986] 1 S.C.R.
752, at page 766, have been met:
They are:
I. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes
the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution
Act, 1867.
I further consider that section 18 of the Federal
Court Act confers all the necessary jurisdiction on
this Court:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission, or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada to obtain relief against a federal
board, commission or other tribunal.
The analogy between the request for a stay
contained in the application at bar and the remedy
of an injunction is such that it is certainly possible
to speak of an "application or other proceeding for
relief in the nature of relief contemplated by para
graph (a)" in section 18 above.
In the Supreme Court of Canada judgment in
Manitoba (Attorney General) v. Metropolitan
Stores Ltd., [1987] 1 S.C.R. 110, Beetz J. said the
following for the Court, at page 127:
A stay of proceedings and an interlocutory injunction are
remedies of the same nature. In the absence of a different test
prescribed by statute, they have sufficient characteristics in
common to be governed by the same rules and the courts have
rightly tended to apply to the granting of interlocutory stay the
principles which they follow with respect to interlocutory
injunctions ....
It should be noted, however, that though the
applicant has already used this section as a basis
for challenging the respondent's decision, the
remedy sought at that time was different since its
purpose was to set aside the decision and the
essential effect of an appeal from Rouleau J.'s
order could not then have existed. Accordingly res
judicata cannot properly be relied on to preclude
the application of section 18 here.
In any case, the combined effect of sections 24
of the Charter and 17 of the Federal Court Act, in
view of the involvement of the Extradition Act and
the 1976 Extradition Treaty between Canada and
the U.S., seems to me to be enough to confer
jurisdiction on this Court in the circumstances.
The other two provisions cited, one taken from
the Federal Court Act and the other from the
Rules of this Court, can also as I see it confer the
jurisdiction necessary to dispose of the application,
regardless of section 24 of the Charter. They are
section 50 of the Act and Rule 1909.
The relevant portion of section 50 of the Act
needs to be set out:
50. (I) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
Paragraph 50(1)(b) above accordingly allows
the Court to "stay proceedings", and these are not
limited to those before the Court. In New Bruns-
wick Electric Power Commission v. Maritime
Electric Company Limited, [1985] 2 F.C. 13,
Stone J. of the Appeal Division of this Court
confirmed this, at page 24:
Subsection 50(1) of the Act is not on its face limited to
proceedings "before the Court". The inclusion of those words
or words of like effect would, I think, have removed any doubt
as to the intention of Parliament. Omission of them from
subsection 50(I) lends some support to an argument that by
"proceedings" Parliament intended to confer power, in appro
priate circumstances, to stay proceedings in addition to those
pending in the Court itself.
It is true that in that case the Court held, in
view of the particular circumstances of the case,
that the purpose of the stay requested could not be
described as "proceedings". Stone J. added, again
at pages 24-25:
That hurdle is whether what is sought to be stayed may
properly be regarded as "proceedings". Only the Board's order
is in issue. It has heard the application and has spoken. It has
determined the matter in terms of its order. In short it has
disposed of it so that nothing remains for it to do. MECL may
enjoy the fruits of its victory without further action on its part
for no new proceedings are contemplated for enforcement of
the order. Only simple compliance with the formalities of
section 15' of the National Energy Board Act ... is required.
In the case at bar, the respondent has only
decided to allow the applicant to be extradited
without first attempting to obtain an assurance
from the U.S. that the death penalty will not be
imposed or carried out. The necessary proceedings
mentioned in sections 25 and 26 of the Extradition
' Section 15 deals simply with a formal requirement, namely
the practice and procedure to be followed if a decision or order
of the Board in question is to become a rule, order or decree of
the Federal Court of Canada or of a superior court.
Act 2 for the de facto extradition of the applicant
have not yet all been completed. It cannot be said
here, as Stone J. could say in New Brunswick
Electric Power Commission (supra), that the
respondent "has disposed of [the matter] so that
nothing remains for it to do", that following Rou-
leau J.'s order the respondent "may enjoy the
fruits of its victory without further action on its
part for no new proceedings are contemplated for
enforcement of the order". I consider that the
proceedings to extradite the applicant will not have
been completed until the formal extradition order
has been carried out and the applicant in fact
turned over to the U.S. authorities.
I therefore am of the opinion that the applicant
can rely on paragraph 50(1)(b) of the Federal
Court Act in an effort to obtain a "stay [of]
proceedings in any cause or matter", that is the as
yet uncompleted proceedings for his extradition
under the respondent's authority. The jurisdiction
of the Trial Division of this Court under section 50
of the Act is also well established. It will suffice to
note that the word "Court" in the first paragraph
of section 50 means "the Federal Court of Cana-
da", as defined in section 2 of that Act, without
distinction as to Division.
So far as Rule 1909 is concerned, it provides:
Rule 1909. A party against whom a judgment has been given
or an order made may apply to the Court for a stay of
execution of the judgment or order or other relief against such
judgment or order, and the Court may by order grant such
relief, and on such terms, as it thinks just.
In this regard I consider that the remedy sought,
the stay of extradition proceedings, may having
2 25. Subject to this Part, the Minister of Justice, upon the
requisition of the foreign state, may, under his hand and seal,
order a fugitive who has been committed for surrender to be
surrendered to the person or persons who are, in his opinion,
duly authorized to receive him in the name and on behalf of the
foreign state, and he shall be so surrendered accordingly.
26. Any person to whom an order of the Minister of Justice
made under section 25 is directed may deliver, and the person
thereto authorized by such order may receive, hold in custody,
and convey the fugitive within the jurisdiction of the foreign
state, and if he escapes out of any custody to which he is
delivered, on or in pursuance of such order, he may be retaken
in the same manner as any person accused or convicted of any
crime against the laws of Canada may be retaken on an escape.
regard to the order in question of Rouleau J. be
"relief against such ... order" within the meaning
of that Rule. As granting the remedy sought would
have the effect of temporarily countering the effect
of this order by the Court, I consider that the
applicant, "a party against whom a judgment has
been given or an order made", can rely on Rule
1909 and make use of the part of the Rule which
authorizes "other relief against such judgment or
order".
Further, this interpretation seems to me con
sistent with that given by the Supreme Court of
Canada to its own Rule 126 [Rules of the
Supreme Court of Canada, C.R.C., c. 1512], an
interpretation referred to by Stone J. in New
Brunswick Electric Power Commission (supra), at
pages 22 and 23:
The Supreme Court of Canada concluded that it had juris
diction under its Rule 126 [Rules of the Supreme Court of
Canada, C.R.C., c. 1512], to grant the stay. That Rule read:
RULE 126. Any party against whom judgment has been
given, or an order made, may apply to the Court or a judge
for a stay of execution or other relief against such a judg
ment or order, and the Court or judge may give such relief
and upon such terms as may be just.
In so concluding the Court rejected a contention that the Rule
related only to its own judgments or orders and not to judg
ments or orders of another court. It also rejected the contention
that staying of the effect of the order under appeal was not
within the scope of the Rule. Laskin C.J. speaking for the
Court, dealt with these contentions as follows (at page 600):
It was contended that the Rule relates to judgments or orders
of this Court and not to judgments or orders of the Court
appealed from. Its formulation appears to me to be inconsist
ent with such a limitation. Nor do I think that the position of
the respondent that there is no judgment against the appel
lant to be stayed is a tenable one. Even if it be so, there is
certainly an order against the appellant. Moreover, I do not
think that the words of Rule 126, authorizing this Court to
grant relief against an adverse order, should be read so
narrowly as to invite only intervention directly against the
order and not against its effect while an appeal against it is
pending in this Court. I am of the opinion, therefore, that the
appellant is entitled to apply for interlocutory relief against
the operation of the order dismissing its declaratory action,
and that this Court may grant relief on such terms as may be
just.
That case, of course, turned upon the interpretation of Rule
126 as it then stood and the Supreme Court of Canada decided
that the Rule applied as well to a stay in the execution of an
order of the Trial Division of this Court as to an order or
judgment of the Supreme Court itself. That being so it found
itself able to stay execution of the order (and of its effect)
pursuant to the provisions of that Rule. A similar rule may be
found in Rule 1909 of the Federal Court Rules.
The fact that the Trial Division of this Court
has jurisdiction to grant the relief mentioned in
Rule 1909 is well established and confirmed both
by the definition of "Court" contained in Rule
2(1) and by the foregoing observations of Laskin
C.J. with regard to a similar Rule.
Finally, even if I had concluded that the juris
diction of the Trial Division of this Court could
not rest on any specific legislation or particular
rule, which is not the case, I consider that this
Division of the Court has an implicit power to
grant a stay if the effect of carrying out the
extradition order while Rouleau J.'s order is on
appeal is to make that appeal meaningless.
The applicant had the right under the provisions
of section 18 of the Federal Court Act to ask this
Court to review and set aside the respondent's
decision. Under section 27 of the Federal Court
Act, the applicant further had the right to appeal
to the Appeal Division of this Court from the order
denying him the relief sought. In my opinion, since
it thus adopted sections 18 and 27 of the Act,
Parliament must also have intended that the Fed
eral Court should have the power to stay the
execution of an order challenged in this manner so
that it can effectively exercise both its judicial
review and its appellate jurisdiction. I entirely
concur in the following observations of Stone J. in
New Brunswick Electric Power Commission
(supra), in connection with a similar argument, at
pages 26, 27 and 28:
It is said that because Parliament has so provided it must
also have intended that this Court be able to stay execution of
the order under appeal so as to effectively exercise its appellate
jurisdiction. In my view there is merit to this contention. It is a
concept that was commented upon in a recent judgment of this
Court in National Bank of Canada v. Granda (1985), 60 N.R.
201, in the context of a decision then pending review pursuant
[sic] section 28 of the Act. Mr. Justice Pratte made the
following observations on his own behalf (at page 202) in the
course of his reasons:
What I have just said should not be taken to mean that the
Court of Appeal has, with respect to decisions of federal
tribunals which are the subject of applications to set aside
under s. 28, the same power to order stays of execution as the
Trial Division with respect to decisions of the court.
The only powers which the court has regarding decisions
which are the subject of applications to set aside under s. 28
are those conferred on it by ss. 28 and 52(d) of the Federal
Court Act. It is clear that those provisions do not expressly
confer on the court a power to stay the execution of decisions
which it is asked to review. However, it could be argued that
Parliament has conferred this power on the court by implica
tion, in so far as the existence and exercise of the power are
necessary for the court to fully exercise the jurisdiction
expressly conferred on it by s. 28. In my opinion, this is the
only possible source of any power the Court of Appeal may
have to order a stay in the execution of a decision which is
the subject of an appeal under s. 28. It follows logically that,
if the court can order a stay in the execution of such
decisions, it can only do so in the rare cases in which the
exercise of this power is necessary to allow it to exercise the
jurisdiction conferred on it by s. 28.
These observations bring into focus the absurdity that could
result if, pending an appeal, operation of the order appealed
from rendered it nugatory. Our appellate mandate would then
become futile and be reduced to mere words lacking in practi
cal substance. The right of a party to an "appeal" would exist
only on paper for, in reality, there would be no "appeal" to be
heard, or to be won or lost. The appeal process would be stifled.
It would not, as it should, hold out the possibility of redress to a
party invoking it. This Court could not, as was intended, render
an effective result. I hardly think Parliament intended that we
be powerless to prevent such a state of affairs. In my view the
reasoning of Laskin C.J. in the Labatt Breweries case (at page
601) applies with equal force to the ability of this Court to
prevent continued operation of an order under appeal from
rendering the appeal nugatory:
Although I am of the opinion that Rule 126 applies to
support the making of an order of the kind here agreed to by
counsel for the parties, I would not wish it to be taken that
this Court is otherwise without power to prevent proceedings
pending before it from being aborted by unilateral action by
one of the parties pending final determination of an appeal.
I have concluded that this Court does possess implied jurisdic
tion to grant a stay if the operation of the Board's order
pending the appeal would render the appeal nugatory.
The implied power to stay which the Appeal
Division may have here 3 certainly could not in my
3 See also Mohammad v. Canada (Minister of Employment
& Immigration), Federal Court of Appeal, A-362-88, a judg
ment of March 14, 1988; and Toth v. Canada (Minister of
Employment & Immigration), Federal Court of Appeal,
88-A-324, judgment dated June 21, 1988, not yet reported.
opinion prevent the Trial Division from also having
the same implied power, by reason of its earlier
involvement in the order and the proceedings
which are the focus of the stay requested. There is
no reason why the Trial Division should not inter
vene in such a manner, even if an appeal is pend
ing in the Appeal Division, since our Rules them
selves (1213 and 1909) recognize that the Trial
Division has a power to stay execution of its own
judgments even when they have been appealed.
Finally, the protection of rights resulting under the
Federal Court Act is not exclusively a matter for
any one of its Divisions, unless a specific provision
reserves one aspect of such rights for a particular
Division.
As I have concluded that this Court has jurisdic
tion to dispose of the application at bar, it remains
to decide whether the stay requested should be
granted in view of the particular circumstances of
this case.
It should be noted forthwith that there is no
necessity here to discuss the merits of the appeal
from Rouleau J.'s judgment: suffice it to say that
this appeal raises valid and significant questions of
law.
There is also no requirement that the Court try
and punish the applicant for escaping: in any case
this clearly is not the function of the Federal Court
but of the provincial courts.
Having regard to section 24 of the Charter,
therefore, it should be noted that as a court of
competent jurisdiction, this Court may grant the
appropriate relief, in view of the overriding effect
of the Charter as provided in subsection 52(1) of
the Constitution Act, 1982.
Subsections 24(1) and 52(1) of the Constitution
Act, 1982 state:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
About the application of these two provisions by
the courts, the author Peter W. Hogg writes, in
Canadian Charter of Rights and Freedoms, a text
edited by Walter S. Tarnopolsky and Gérald -A.
Beaudoin, at pages 13 and 14:
(a) Constitution Act, 1982, s. 52(1)
The overriding effect of the Charter, rendering inconsistent
statutes "of no force or effect", is an important enforcement
measure, because it means that any court or tribunal has the
power (and the duty) to disregard any statute which the court
or tribunal finds to be inconsistent with the Charter.
(b) Charter, s. 24
Section 24 authorizes "anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied" to
"apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the
circumstances". This provision implies two things. First, it
implies that anyone who makes a plausible claim that one of his
rights or freedoms has been infringed has the standing which is
requisite to the initiation of a lawsuit. Second, it implies that
anyone who establishes the infringement or denial of one of his
rights or freedoms has by that fact alone made out a cause of
action entitling him to an "appropriate and just remedy".
Here it seems clear that the carrying out of an
extradition order, which will probably be followed
by the execution or putting to death of the appli
cant in the U.S., would be an infringement of the
right to life, liberty and security of the person
guaranteed by section 7 of the Charter. Conse
quently, it can only be done in accordance with the
rules of fundamental justice (see Singh et al. v.
Minister of Employment and Immigration, [1985]
1 S.C.R. 177).
Incidentally, the following observations and con
clusions of Lamer J. in the Supreme Court of
Canada judgment Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486, at pages 499 and 500, seem
to me to be highly relevant as to the interpretation
that should be given to section 7 of the Charter:
The task of the Court is not to choose between substantive or
procedural content per se but to secure for persons "the full
benefit of the Charter's protection" (Dickson J. (as he then
was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p.
344), under s. 7, while avoiding adjudication of the merits of
public policy. This can only be accomplished by a purposive
analysis and the articulation (to use the words in Curr v. The
Queen, [1972] S.C.R. 889, at p. 899) of "objective and man-
ageable standards" for the operation of the section within such
a framework.
I propose therefore to approach the interpretation of s. 7 in
the manner set forth by Dickson J. in Hunter v. Southam Inc.,
[ 1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., supra,
and by Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613. In R.
v. Big M Drug Mart Ltd., Dickson J. wrote at p. 344:
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court
expressed the view that the proper approach to the definition
of the rights and freedoms guaranteed by the Charter was a
purposive one. The meaning of a right or freedom guaranteed
by the Charter was to be ascertained by an analysis of the
purpose of such a guarantee; it was to be understood, in other
words, in the light of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose
of the right or freedom in question is to be sought by reference
to the character and the larger objects of the Charter itself, to
the language chosen to articulate the specific right or freedom,
to the historical origins of the concepts enshrined, and where
applicable, to the meaning and purpose of the other specific
rights and freedoms with which it is associated within the text
of the Charter. The interpretation should be, as the judgment in
Southam emphasizes, a generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter's protection. [My
emphasis.]
And at pages 512 and 513:
Consequently, my conclusion may be summarized as follows:
The term "principles of fundamental justice" is not a right,
but a qualifier of the right not to be deprived of life, liberty and
security of the person; its function is to set the parameters of
that right.
Sections 8 to 14 address specific deprivations of the "right"
to life, liberty and security of the person in breach of the
principles of fundamental justice, and as such, violations of s. 7.
They are therefore illustrative of the meaning, in criminal or
penal law, of "principles of fundamental justice"; they repre
sent principles which have been recognized by the common law,
the international conventions and by the very fact of entrench
ment in the Charter, as essential elements of a system for the
administration of justice which is founded upon the belief in the
dignity and worth of the human person and the rule of law.
Consequently, the principles of fundamental justice are to be
found in the basic tenets and principles, not only of our judicial
process, but also of the other components of our legal system.
Whether any given principle may be said to be a principle of
fundamental justice within the meaning of s. 7 will rest upon an
analysis of the nature, sources, rationale and essential role of
that principle within the judicial process and in our legal
system, as it evolves.
Consequently, those words cannot be given any exhaustive
content or simple enumerative definition, but will take on
concrete meaning as the courts address alleged violations of
s. 7.
The right of appeal exercised by the applicant in
the case at bar is given to him expressly by an Act
of the Parliament of Canada and is the type of
appeal generally conferred in the judicial process
and in our Canadian legal system. In the circum
stances, therefore, it would be a serious infringe
ment of the principles of fundamental justice not
to grant the stay sought pending disposition by the
Federal Court of Appeal of the applicant's appeal,
a valid appeal the outcome of which might ulti
mately save his life.
Having regard now to both section 50 of the
Federal Court Act and Rule 1909, whether those
provisions are taken together or separately it is
clear that to deny the stay sought by the applicant
would be to allow his appeal to become meaning
less. No further elaboration is thus needed to
conclude that while, first, it would be contrary to
reason to allow the carrying out of an order the
effect of which is to invalidate the full exercise of a
right of appeal against it, secondly, it would cause
the applicant damage which is obviously irrepa
rable to allow him to be executed or put to death
even before he has been able to fully exercise a
right of appeal the outcome of which may ulti
mately prevent that execution. As I see it, the
interests of justice require in the circumstances
that the applicant be allowed to fully exercise a
statutory right of appeal, particularly as that
appeal raises significant questions of law connect
ed with both procedural equity in administrative
decisions and observance of the rights and free
doms guaranteed by the Charter. It is further
quite apparent that the stay itself cannot occasion
any significant hardship to the respondent or really
be contrary to the public interest.
Having regard to, finally, both section 18 of the
Federal Court Act and the implied power, if neces
sary, the situation must be considered in light of
the three-part test defined in American Cyanamid
Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.). This
test requires that, for the Court to issue an inter
locutory injunction (here, a stay of proceedings),
the applicant must establish first that there is a
serious question to be tried; second, that he would
suffer irreparable harm if the order were not
granted; and third, considering the situation of the
parties as a whole, whether the balance of conve
nience is in favour of making the order.
I feel that the preceding analysis of the situa
tion, in light of the other legislative provisions
which I believe to be applicable, adequately
demonstrates that the applicant fully meets the
requirements of the test in question. Suffice it to
say that the important questions of law raised in
the applicant's appeal do not so far appear to have
been considered by the highest courts in relation to
the Extradition Act: as I see it, in view of the
relatively recent advent of the Charter, it is impor
tant that this should also be done in the light of
modern jurisprudence.
For all these reasons, therefore, I am prepared
to grant the remedy sought, namely a stay of any
proceedings connected with an order by the
respondent to extradite the applicant to the U.S.,
until the Federal Court of Appeal shall have dis
posed of the latter's appeal from the judgment of
this Court by Rouleau J. on January 21, 1987.
At the hearing counsel for the applicant indicat
ed that he now had instructions to act speedily and
would even be submitting an application to the
Federal Court of Appeal asking the latter to hear
his client's appeal in the next available term, Octo-
ber, if possible. In this regard, however, I do not
intend to impose conditions on the stay order I am
making. In the event that the applicant acts slowly
or without due diligence, the respondent can
always have recourse to Rule 1209, which in such
circumstances allows him to submit an application
to the Court of Appeal to dismiss the appeal, a
dismissal which would terminate the stay granted.
In view of the assistance given by the respond
ent, who through his counsel assured the Court
that the applicant's extradition would not be com
pleted while this application was being heard, the
latter is allowed without costs.
Before concluding, in purely procedural terms it
would appear that under Rules 600(4) and 603, in
this case where the Attorney General of Canada is
the respondent, the applicant should have proceed
ed by an action rather than an application. How
ever, there are three reasons why I refer to Rules
2(2) and 303, if necessary, as authority for this
procedure:
1. this is an urgent matter, as appears from the letter of
September 15, 1988 written by counsel for the respondent to
counsel for the applicant, stating that Canada intends to return
the applicant to the U.S. as soon as the appropriate arrange
ments have been completed;
2. no objection has been raised in this regard by or for the
respondent;
3. the facts are not in dispute.
An order is accordingly made granting the
application, but without costs.
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.