T-1327-76
In re the Extradition Act
and
In re an application by Leonard Peltier for a writ
of certiorari and for a writ of mandamus directed
to the Honourable Mr. Justice Hinkson sitting as
an Extradition Judge and the Honourable Mr.
Justice Dryer sitting as an Extradition Judge
Trial Division, Mahoney J.—Vancouver, April 5,
9, 12 and 13, 1976.
Jurisdiction—Extradition—U.S. seeking to extradite appli-
cant—B.C. Supreme Court ordering, on March 18, 1976, that
applicant be remanded in custody to May 8, 1976—Applicant
amending application to seek mandamus instead of, or in
addition to, certiorari—Whether decision subject to review by
Trial Division under s. 18 of Federal Court Act or by Court of
Appeal under s. 28—Whether a person before an extradition
judge for hearing entitled, while awaiting hearing, to protec
tion by being brought periodically into open court—Extradi-
tion Act, R.S.C. 1970, c. E-21, ss. 9(1) and 13—Federal Court
Act, ss. 2, 18, 28—Criminal Code, R.S.C. 1970, c. C-34, s.
465(1 )(b).
Applicant was in custody on a warrant under the Extradition
Act; his extradition was sought by the United States of Ameri-
ca. Following apprehension, he appeared before an Extradition
Judge several times, was denied bail, and the hearing was
adjourned from time to time for periods not exceeding eight
days. After an eight-day adjournment, the British Columbia
Supreme Court, on March 16, 1976 decided that applicant
could be remanded in custody until May 8, 1976. On March
18, applicant appeared in Court and the hearing was formally
adjourned. Applicant challenged this order, and, during the
hearing in this Court, amended his application to seek man-
damus instead of, or in addition to, certiorari.
Held, granting the application for mandamus, the order
should be no wider than is essential to achieve the result that
the hearing not be adjourned for more than eight clear days,
and should be directed only to the March 18 order. Section
9(1) of the Extradition Act constitutes all judges of the B.C.
Supreme Court to act judicially under Part I of the Act. When
a county court judge is exercising powers under the Act, he is
doing so, not as a judge appointed under section 96 of the
British North America Act, but as a persona designata, and as
such comes within the meaning of "federal board, etc...." in
section 2 of the Federal Court Act. A Superior Court judge,
exercising the same powers, is in a similar position. As to the
meaning of "decision" in section 28, generally, the Court of
Appeal will review final orders or decisions only, i.e. in the
sense that such decision is one that the tribunal has been
mandated to make, and from which flow legal rights and
obligations. The decision of the Extradition Judge is not, in this
sense, final, but is subject to review in the Trial Division, under
section 18 of the Federal Court Act. Under section 13 of the
Extradition Act, proceedings before the Extradition Judge are
to follow, as nearly as may be, those in Part XV of the
Criminal Code for conduct of a preliminary inquiry. Section
465(1)(b) of the Code provides for adjournment from time to
time, for a variety of reasons, but except where he has been
granted bail, or remanded for psychiatric observation, no
accused is to be remanded for more than eight clear days;
applicant here was denied bail and was not remanded for
observation. No valid reason was offered for departing from the
requirement of section 13; this was not an effort, as in the cases
cited, to quash a committal order on a technicality, nor are
Canada's treaty obligations in issue or subject to frustration.
The Extradition Judge exceeded his jurisdiction, and man-
damus is the appropriate relief.
Puerto Rico v. Hernandez [1975] 1 S.C.R. 228, followed.
Ex parte O'Dell [1953] 3 D.L.R. 207; In re Collins (No. 3)
(1905) 10 C.C.C. 80; In re Bellencontre [1891] 2 Q.B.
122; Grin v. Shine (1902) 187 US 181 and Wright v.
Henkel (1903) 190 US 40, discussed.
APPLICATION.
COUNSEL:
L. B. McGrady, S. Rush and P. Grant for
applicant.
P. W. Halprin, S. Hardinge and J. A.
MacLennan for respondent.
SOLICITORS:
Bolton, Rush & McGrady, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This application came on for
hearing before me on Friday, April 9, 1976 having
been adjourned at the request of counsel for the
applicant from Monday, April 5, 1976. During the
course of the hearing, it became apparent that the
application ought to be amended to seek a writ of
mandamus instead of, or in addition to, the writ of
certiorari originally sought. Leave was given to the
applicant to present a motion to amend at the
regular chambers court Monday, April 12. The
motion to amend was not opposed and was grant
ed. After argument was completed, I rendered
verbal reasons from the bench and, in the absence
of a reporter, indicated my intention to file formal
. written reasons in due course.
The applicant is in custody on a warrant issued
under the Extradition Act'. His extradition is
sought by the United States of America where he
has been charged with two murders, two attempt
ed murders and a burglary. Following his appre
hension, the applicant appeared before an Extradi
tion Judge on a number of occasions. He was
denied bail and the extradition hearing was
adjourned from time to time for periods not
exceeding eight days.
On February 26, 1976, he appeared before the
Honourable Mr. Justice Hinkson of the Supreme
Court of British Columbia and, to suit the conveni
ence of counsel and the court, having regard to
their various commitments and to the estimated
length of the hearing, it was agreed the hearing
would proceed May 3, 1976. When that decision
was made, counsel for the extraditing State asked
that the applicant be remanded in custody to May
3. Counsel for the applicant objected. The judge
took the request under advisement and ordered an
eight day adjournment. I take it that representa
tions were made. In any event, on March 16 Mr.
Justice Hinkson rendered the decision that the
applicant could be remanded in custody until May
8. On March 18, when the applicant again
appeared before the Honourable Mr. Justice Dryer
of the Supreme Court of British Columbia, the
hearing was formally adjourned to May 8, 1976 at
10:00 a.m. and the applicant was remanded in
custody until that time. It is that order that is
challenged in these proceedings.
This application raises two very important
issues: the jurisdiction of this Division to grant any
or all of the relief sought at all and, secondly, the
substantial question of whether a person before an
Extradition Judge for hearing is entitled, while
awaiting that hearing in custody, to the protection
afforded by the very fact of his being brought
periodically by his custodians into open court.
R.S.C. 1970, c. E-21.
Section 9(1) of the Extradition Act constitutes,.
inter alia, all judges of the Supreme Court of
British Columbia to act judicially under Part I of
the Act—the provisions dealing with extradition
pursuant to a treaty. In Commonwealth of Puertc
Rico v. Hernandez 2 , the Supreme Court of
Canada held that when a county court judge is
exercising powers under the Extradition Act he is
not acting as a judge appointed under section 96 of
the British North America Act but as a persona
designata and, as such, falls within the definition
of "a federal board, commission or tribunal" con
tained in section 2 of the Federal Court Act'. It
was not contended before me, and I have myself
been unable to rationalize support for the proposi
tion, that a Superior Court Judge, exercising the
same powers, is in a different position. The ques
tion is whether the decision in issue is subject to
review by the Trial Division under section 18 or by
the Federal Court of Appeal under section 28 of
the Federal Court Act.
The jurisdiction of the Federal Court of Appeal.
set forth in section 28(1), is "to hear and deter
mine an application to review and set aside a
decision or order, other than a decision or order of
an administrative nature not required by law to be
made on a judicial or quasi-judicial basis" upon
certain enumerated grounds which certainly
include the grounds upon which this application is
made. If the Federal Court of Appeal has jurisdic
tion in respect of a decision or order than, by
virtue of section 28(3), this Division does not. In
view of the grounds for this application, the ques
tion turns entirely on the nature of the decision or
order in issue.
The meaning of the word "decision" as used in
section 28 is the subject of a developing jurispru
dence. Generally, the pattern emerging in the
Court of Appeal's own judgments seems to be that
it will review final orders or decisions only—final
in the sense that the decision or order in issue is
the one that the tribunal has been mandated to
make—a decision from which legal rights or obli-
2 [1975] 1 S.C.R. 228.
3 R.S.C. 1970 (2nd Supp.) c. 10.
gations flow. It will not review the myriad of
decisions or orders that must usually be made
along the way in any proceeding toward that final
decision.
The decision of the Extradition Judge to adjourn
the hearing to a particular date and to remand the
applicant in custody until that date is not, in that
sense, a final decision. It is a decision that is
subject to review in this Court in one of the
proceedings authorized by section 18 of the Feder
al Court Act. I hold that I have jurisdiction in
respect of it.
Section 13 of the Extradition Act requires that
the Extradition Judge hear the case for extradition
"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." That is to say, the proceedings are to
follow, as nearly as may be, those set forth in Part
XV of the Criminal Code 4 for the conduct of a
preliminary inquiry. Section 465(1)(b), one of the
sections in Part XV of the Code, provides that the
justice of the peace may, for a variety of sufficient
reasons, "adjourn the inquiry from time to time"
but that, except where the accused has been grant
ed bail or remanded for psychiatric observation,
"no such adjournment shall be for more than eight
clear days." In this case, the applicant has been
denied bail and is not remanded for observation.
The decision of the Extradition Judge appears to
be based on a judgment of Schroeder J., then of
the High Court of Ontario, in Ex parte O'Dell 5 .
That was an application for habeas corpus with
certiorari in aid to quash a committal order. The
applicants had been taken into custody December
12, 1952 and the hearing was actually held on
January 16, 1953. It appears that they had been
remanded in custody, in that interval, for a period
of more than eight days. Schroeder J. held that the
Extradition Judge had not thereby lost jurisdiction
and he refused to quash the committal order. In
his decision, Schroeder J. cited the decision of
Duff J., then of the Supreme Court of British
4 R.S.C. 1970, c. C-34.
5 [1953] 3 D.L.R. 207.
Columbia, In re Collins (No. 3) 6 , who in turn had
cited an English decision, In re Bellencontre 7 , and
two decisions of the Supreme Court of the United
States, Grin v. Shine 8 and Wright v. Henkel 9 . In
each of these cases, it appears, the attack was on
the committal order, or warrant, after it had
issued, on the basis of some defect in the proceed
ings prior to the order or warrant, as the case may
be, issuing. Duff J. and Schroeder J. both adopted
the statement of the Chief Justice of the United
States in Wright v. Henkel [at page 57]:
Treaties must receive a fair interpretation according to the
intention of the contracting parties, and so to carry out their
manifest purpose. The ordinary technicalities of criminal pro
ceedings are applicable to proceedings in extradition only to a
limited extent.
While one may agree fully with that proposition,
it is, respectfully, difficult to see its application
here. This is not an effort to quash a committal
order on some technicality. The fulfillment of
Canada's treaty obligations is not in issue and
subject to frustration. This applicant has not yet
been committed; it cannot be assumed that he will
be. That will be determined by the Extradition
Judge.
It seems to me that if any effect at all is to be
given to the requirement of section 13 of the
Extradition Act that the Extradition Judge "hear
the case, 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 com
mitted in Canada", he must be bound by section
465(1)(b) of the Code not to adjourn the hearing
for more than eight clear days. No valid reason for
departing from the requirement in this case, or in
extradition cases generally, has been suggested to
me or has suggested itself to me. I am of the
opinion that the learned Extradition Judge exceed
ed his jurisdiction and, as a result, the applicant is
entitled to relief.
For the same reasons that the decision is not
properly the subject of a section 28 application, it
6 (1905) 10 C.C.C. 80.
[1891] 2 Q.B. 122.
8 (1902) 187 US 181.
9 (1903) 190 US 40.
is not an appropriate subject for certiorari. Man-
damus is the appropriate remedy. The order
should be no wider than is essential to achieve the
result that the hearing not be adjourned for more
than eight clear days. It should, therefore, be
directed only to the order of March 18 and not to
the earlier decision which Mr. Justice Dryer fol
lowed but which is not, in fact, the order by which
the hearing presently stands adjourned.
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.