A-529-82
Federal Republic of Germany (Applicant)
v.
Helmut Rauca (Respondent)
Court of Appeal, Heald, Urie JJ. and Cowan
D.J. Toronto, July 30; Ottawa, August 9, 1982.
Judicial review — Applications to review — Extradition —
Application to review and set aside bail order of Ontario High
Court Justice pending extradition hearing for alleged war
crimes — Decision reviewable by Federal Court of Appeal
since High Court Justice acting under Extradition Act is
acting as federal board, commission or tribunal within s. 28 of
Federal Court Act — Usual tests for bail applicable to all
Canadians charged with an offence apply notwithstanding
enormity of alleged crimes — Trial Judge found that respond
ent likely to appear for extradition hearing and that there was
no evidence respondent poses threat to public — Application
dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28 — Extradition Act, R.S.C. 1970, c. E-21, ss. 9,
10, 13.
This is a section 28 application to review and set aside a bail
order of a High Court of Ontario Justice pursuant to the
Extradition Act. The respondent was accused of war crimes in
the Federal Republic of Germany and was arrested in Canada
under the Extradition Act. He was released on conditions
including a recognizance of $150,000. The applicant applied for
review on the grounds that the tests to be applied for the
granting of bail in extradition cases were more stringent than in
ordinary bail hearings. The enormity of the crimes with which
the respondent was charged and the strength of the evidence
against him gave him sufficient motive to flee the jurisdiction
so that there is a real risk that he will not appear for the
extradition hearing.
Held, the application is dismissed. The respondent is a
Canadian citizen, had no criminal record in Canada, has roots
in Canada and is 73 years of age. A Canadian citizen who is
charged with an offence in a foreign country for which he may
be extradited ought not to have his right to bail abrogated if he
satisfies the usual tests applicable in the exercise of judicial
discretion to grant bail. The Extradition Judge did not err when
he found that the evidence, though significant, would not
constitute a strong case until it could be assessed at the
extradition hearing. The Extradition Judge found that the
respondent was likely to appear, and that lie posed no menace
to the public, thereby satisfying the proper tests for granting
bail.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Commonwealth of Puerto Rico v. Hernandez, [1975] 1
S.C.R. 228.
DISTINGUISHED:
Re Barnes and State of Tennessee (1972), 34 C.C.C.
(2d) 122 (Ont. H.C.).
CONSIDERED:
Herman, et al. v. Deputy Attorney General of Canada,
[1979] I S.C.R. 729; Minister of National Revenue v.
Coopers and Lybrand, [1979] 1 S.C.R. 495.
REFERRED TO:
Re State of Arizona and Thompson and Schliwa (1976),
30 C.C.C. (2d) 148 (Ont. Cty. Ct.); Re Armstrong and
State of Wisconsin (1977), 37 C.C.C. (2d) 397 (Ont.
Cty. Ct.); Re State of Ohio and Schneider (1977), 34
C.C.C. (2d) 130 (Ont. Cty. Ct.); Re Piperno and The
Queen (1981), 65 C.C.C. (2d) 178 (Que. S.C.); Com
monwealth of Virginia v. Cohen, [1973] F.C. 622 (T.D.);
Re Gaynor and Green (No. 5) (1905), 9 C.C.C. 255 (Que.
K.B.); Re Low (1932), 41 O.W.N. 468 (Ont. C.A.).
COUNSEL:
W. 1. C. Binnie, Q.C. for applicant.
W. J. Parker and W. B. Horkins for
respondent.
Bert Raphael, Q.C., David Matas and Irwin
Cotter for Canadian Jewish Congress.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
William J. Parker, Toronto, for respondent.
Raphael, Wheatley & MacPherson, Toronto,
for Canadian Jewish Congress.
The following are the reasons for judgment
rendered in English by
URIE J.: This application made pursuant to
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, is to review and set aside the
order made by the Honourable Mr. Justice Grif-
fiths, a Judge of the High Court of Justice of the
Supreme Court of Ontario, pursuant to the Extra
dition Act, R.S.C. 1970, c. E-21, ("the Act")
ordering the respondent to be released on bail upon
the terms and conditions which I will hereinafter
refer to.
The facts, briefly stated, are these: On June 17,
1982, pursuant to an information and complaint
issued in accordance with section 10 of the Act,
Associate Chief Justice Parker of the High Court
of Justice of the Supreme Court of Ontario issued
a warrant for the apprehension of the respondent.
The information and complaint alleged that the
respondent "... is currently accused of an extradi
tion crime or crimes to wit: aiding and abetting the
murder of 10,500 persons on or about the 28th day
of October 1941 in Kaunas, Lithuania ..." and
that a warrant for his arrest had been issued in the
Federal Republic of Germany on September 21,
1961. On June 21, 1982, in accordance with a
warrant of remand issued by Associate Chief Jus
tice Parker on the same day as the warrant of
apprehension, the respondent was brought before
Griffiths J. At that time a notice of motion was
returned with three affidavits in support, to admit
the respondent to bail. He, and three other wit
nesses, gave evidence on his behalf and one witness
was heard on behalf of the applicant. At the
conclusion of the hearing Griffiths J. issued the
order here sought to be set aside, the relevant
terms and conditions of which read as follows:
AND WHEREAS the said HELMUT RAUCA was brought before
me today, the 21st day of June, 1982 and I ordered that he be
released on bail on the following terms and conditions:
1) a recognizance in the amount of One Hundred and Fifty
Thousand Dollars ($150,000.00) without deposit, against ade
quate security or otherwise and with three sureties acceptable
to the Crown, and
2) that his passport remain in the custody of the R.C.M.P.
and that he not make application for another passport while
this order is in force, and
3) that he remain in the City of Metropolitan Toronto, and
4) that he report daily to the R.C.M.P. Headquarters, 225
Jarvis Street, Toronto between the hours of 9:00 a.m. and 5:00
p.m., and
5) that he at all times communicate his current address to
the said R.C.M.P., and
6) that he attend court on September 20, 1982 and thereafter
as required.
At the opening of the argument on the applica
tion three counsel appeared on behalf of the
Canadian Jewish Congress seeking leave to partici
pate in the argument on the application. Leave to
do so was granted and all counsel were heard in
support of the application.
The Court then, ex proprio motu, raised the
question of the jurisdiction of this Court to review
the order in issue herein. It was pointed out that
while the Supreme Court of Canada in Common-
wealth of Puerto Rico v. Hernandez', by a majori
ty, had held that an extradition commissioner or
judge sitting under the Extradition Act acts per
sona designata and his decision is subject to review
by this Court pursuant to section 28 of the Court's
constituent Act, two later decisions of the Court in
Herman, et al. v. Deputy Attorney General of
Canada 2 and the Minister of National Revenue v.
Coopers and Lybrand' appear to have drastically
curtailed the application of the notion of judges
sitting persona designata and some of the lan
guage used in the reasons of several of the judges
is such that it is difficult to see how a judge sitting
under the Extradition Act could be doing so per
sona designata while judges sitting pursuant to
other federal statutes are not. After hearing all
counsel on the subject, judgment was reserved on
the question of jurisdiction and the hearing pro
ceeded on the merits.
After reflection and a careful reading and
re-reading of the three judgments, I have conclud
ed that this Court is bound by the Hernandez
decision despite the difficulty in rationalizing it
with the Herman and Coopers and Lybrand judg
ments. This application then, which is to review
and set aside the bail order made by Griffiths J. in
his capacity as a judge sitting persona designata
under the Extradition Act, and not as a judge of
the Supreme Court of Ontario, is within the juris
diction of this Court in that Griffiths J., so acting,
is a federal board, commission or tribunal within
the meaning of section 28 of the Federal Court
Act.
While a number of arguments on the merits
were advanced by counsel for the applicant as well
as for the Canadian Jewish Congress, only one, in
my view, had merit. Therefore, because of the
obvious desirability of disposing of this application
with all possible dispatch and in the interests of
brevity, I will deal only with that argument. To
appreciate the submission it would be useful to set
out the relevant portions of Mr. Justice Griffiths'
reasons, delivered orally at the conclusion of the
hearing, in full.
This is an application to grant bail to Helmut Rauca, a
Canadian citizen, who had been arrested pursuant to an Order
' [1975] 1 S.C.R. 228.
2 [1979] 1 S.C.R. 729.
3 [1979] 1 S.C.R. 495.
of Arrest issued by Associate Chief Justice Parker, under the
provisions of the Extradition Act.
The Bail Reform Act provisions of the Criminal Code relat
ing to bail, do not appear to apply to the circumstances of this
case. There is however, ample authority for the proposition that
a judge of the Supreme Court has jurisdiction to grant bail to a
person held in custody pending extradition proceedings, in
effect, such an application becomes a habeas corpus
application.
Counsel for the Crown has referred me to a decision of Mr.
Justice Wright in re Barnes and The State of Tennessee, 1972,
34 C.C.C. (2nd), 122, wherein Mr. Justice Wright held that
although a Supreme Court judge has the inherent jurisdiction
to grant bail, bail should be granted only in rare circumstances
and then when there is no serious risk. In that case however, it
is clear from the facts that Barnes, the fugitive in question, was
in Canada illegally at the time and was not a Canadian citizen,
there was some real doubt as to whether he would appear on
the extradition hearing, if released.
As counsel for the applicant has pointed out, The Canadian
Bill of Rights recognize [sic] specifically the right to reasonable
bail and the right, normally prevailing in Canada, and provides
that no one charged with a criminal offence should be deprived
of the right to bail or interim release, without just cause. In my
view, a Canadian citizen should not have his right to bail
abrogated simply because he is facing a charge in a foreign
jurisdiction for an offence alleged to have occurred there and
for which he faces extradition proceedings.
Regardless of where the onus lies, and I do not have to decide
that issue in this case, it seems to me that in a case of this
nature the governing principle should be, first, is the accused
person likely to appear for his extradition hearing, if released
and secondly, if released, does the accused person present any
threat to society so that it would be against the public interest
to grant his release. I should add that there may be some cases
in which the very nature of the crime, where there is a very
strong and overwhelming case that that crime has been com
mitted, might justify, in the public interest, that the accused be
detained.
I have read the material on which Associate Chief Justice
Parker issued the Order of Arrest in this case and I have heard
the evidence presented today and one cannot help but be
overwhelmed with revulsion at the nature and the enormity of
the crime. It is alleged that Helmut Rauca selected over 10,000
Jewish men and women and children from a ghetto within
Lithuania and ordered them to be shot in 1941. However, one's
revulsion at the nature of the crime should not blind the court
to a fundamental principle that in Canada, a person accused of
a crime is presumed to be innocent until properly proven guilty.
The evidence here is signifcant [sic] but, I would not be
prepared to say that even there is a strong case against the
accused, I would prefer, before making such a decision, to have
the witnesses present their evidence under oath and face the
accused and be subject to cross-examination and the other
safeguards of a proper hearing.
In essence what I am saying is, despite the enormity of the
crime, I do not believe that in this case that alone should force
me to deprive this man, as a Canadian citizen, of his rights
under Canadian law. The evidence indicates that this man has
firmly established his roots in Canada, he has apparently, at
least since 1950, been a good Canadian citizen and a hard
working citizen, he has no criminal record and he is 73 years of
age. The Crown submits that the real risk here is that he may
flee and will not turn up for the extradition hearing. I am not
persuaded of that. I am of the view that sufficient safeguards
may be built to ensure his attendance. As far as the second
ground, that is that he constitutes a menace to the public, there
is no evidence to that effect.
I hope my decision will be understood in light of the fact that
I am simply applying the fundamental principles of Canada
[sic] law and administering justice as I see it. In the circum
stances I am prepared to release this man but on fairly strict
terms. I would like to hear from the Crown on that.
It was the contention of counsel for the appli
cant, supported by counsel for the Canadian
Jewish Congress, that the Extradition Judge mis
directed himself as to the test to be applied in a
bail application in an extradition case and thereby
committed a reviewable error within paragraph
28(1)(b) 4 of the Federal Court Act. The learned
Judge, it was said, did not appreciate the differ
ence between the test to be applied in an ordinary
bail hearing and that in extradition matters and
thereby erred in law.
A number of cases were referred to by counsel
in respect of the power to grant bail in extradition
proceedings. From those decisions certain general
propositions may be stated:
4 28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine 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, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; ...
(1) while there appear to be some differences in
opinion of judges in various jurisdictions, the
current view of most is that there is a power, as
a matter of discretion, to admit fugitives to bail
in extradition cases;
(2) different principles may apply in bail
applications made before committal than those
which prevail after apprehension but before the
extradition hearing;
(3) it appears that subject to those principles in
either case a judge is empowered by section 9 of
the Act in his discretion to admit an alleged
fugitive to bail;
(4) that the power referred to in (3) is not
derived from section 13 of the Act;
(5) the provisions of the Bail Reform Act,
R.S.C. 1970 (2nd Supp.), c. 2; 1970-71-72, c. 37
do not apply to applications for bail of fugitives
subject to extradition proceedings;
(6) the applicable law in respect of admitting a
fugitive to bail is that which prevailed prior to
the proclamation of the Bail Reform Act in
1972 and the onus thus rests on the fugitive to
show why the extradition judge's discretion
should be exercised in his favour.
In deriving these principles I have had regard,
inter alia, to the following cases to which counsel
referred us: Re State of Arizona and Thompson
and Schliwa 5 ; Re Armstrong and State of
Wisconsin 6 ; Re State of Ohio and Schneider'; Re
Piperno and The Queen 8 ; Commonwealth of Vir-
ginia v. Cohen 9 ; Re Gaynor and Green (No. 5J 10 ;
Re Low"; and Re Barnes and State of
Tennessee' 2 .
It is upon the last case that counsel for the
applicant and the Canadian Jewish Congress
heavily relied as enunciating the proper test for
5 (1976), 30 C.C.C. (2d) 148 (Ont. Cty. Ct.).
6 (1977), 37 C.C.C. (2d) 397 (Ont. Cty. Ct.).
(1977), 34 C.C.C. (2d) 130 (Ont. Cty. Ct.).
8 (1981), 65 C.C.C. (2d) 178 (Que. S.C.).
9 [1973] F.C. 622 (T.D.).
10 (1905), 9 C.C.C. 255 (Que. K.B.).
11 (1932), 41 O.W.N. 468 (Ont. C.A.).
12 (1972), 34 C.C.C. (2d) 122 (Ont. H.C.).
granting bail to fugitives in extradition cases. In
that case a warrant for committal had been issued
by an Extradition Judge after a hearing following
which the prisoner had applied to a Judge of the
Supreme Court of Ontario, Wright J., for a writ of
habeas corpus and to grant bail. The learned
Judge reviewed the authorities (including those to
which 1 have referred, supra) and at pages 129
and 130 of the report had this to say:
I conclude from these cases and generally, that there is
jurisdiction in single Judges of this Court to grant bail to
fugitives under the Extradition Act R.S.C. 1970, c. E-21, both
before and after committal, that it should be sparingly and
cautiously exercised, that great weight should be given to the
mutual commitments of Canada and other states in extradition,
that these should be respected and assured, and that, in fine,
bail should not be granted except in rare circumstances, and
then when there is no serious risk, on the evidence, of the
prisoner not surrendering for extradition, and the Court pro
ceedings in connection with it.
I should add that the provisions and point of view of the Bail
Reform Act R.S.C. 1970, c. 2 (2nd Supp.); 1970-71-72 (Can.),
c. 37, or Part XIV of the Criminal Code, R.S.C. 170 [sic], c.
C-34 (as it is variously known), do not apply to applications for
bail of fugitives subject to extradition proceedings. They do not
apply in their terms. If they did, they would represent a
unilateral amendment of Canada's obligations under its extra
dition treaties and might, in large measure, defeat the para
mount purpose of those treaties. But they do lead to the release,
in proper cases, of persons accused of murder under the Crimi
nal Code, above, as the applicant has observed.
Finally, although the prisoner has been heard in this case, I
hope that no one will consider that applications for bail in like
cases will be entertained favourably unless the facts are of a
strong and extremely unusual character, nor will hearings be
held until the material is properly prepared for the Court's
consideration in the light of the authorities.
Counsel focused in particular on the words "bail
should not be granted except in rare circum
stances, and then when there is no serious risk, on
the evidence, of the prisoner not surrendering for
extradition, and the Court proceedings in connec
tion with it". Counsel said, that in this case
because of the enormity of the crimes with which
the respondent is charged, and the strength of the
evidence against him and the consequent motive
for him to flee from this jurisdiction before the
extradition hearing, there is a real risk that he will
not appear for that hearing. In granting bail,
Griffiths J., it was said, failed to have regard to
Wright J.'s admonition and, in light of the facts in
this case, he thereby erred in law.
It will first be noted from Mr. Justice Griffiths'
reasons for judgment, supra, that not only was he
cognizant of the test propounded by Wright J. but
distinguished the case on the threefold basis that
the fugitive in that case was in Canada illegally,
was not a Canadian citizen, and there was real
doubt as to whether he would appear on the extra
dition hearing if released. In the case at bar, on the
other hand, the prisoner is a Canadian citizen
(although counsel for the Congress argued that he
ought not to be for alleged misrepresentations at
the time of his admission to Canada), had no
criminal record here, has roots here and is 73 years
of age. Moreover, it is clear that the learned Judge
accepted the proposition enunciated in other cases,
supra, that because a Canadian citizen is charged
with an offence in a foreign country for which he
may be extradited, he ought not to have his right
to bail abrogated if he satisfies the usual tests
applicable in the exercise of the judicial discretion
to admit an accused to bail or not. It is a proposi
tion with which I agree. I can find little in the
cases, and nothing in the Act, which supports the
purported principle that because Canada has obli
gations to a demanding state arising from a treaty
between the two countries that the safeguards and
remedies otherwise available to citizens of Canada
ought not to be available to a fugitive qualifying
for bail (see: Re Piperno and The Queen, supra, at
page 184). The treaty obligation is a factor to be
taken into account but, in my view, it is not
necessarily the dominant factor in the decision
whether or not to admit a fugitive to bail prior to
committal although obviously it may be of great
importance if a bail application is made thereafter.
It is common ground, as I understand it, that
the governing principles cited by Griffiths J. for
admission to bail are those which applied in crimi-
nal matters before the enactment of the Bail
Reform Act. The applicant, however, takes the
position that superimposed on these principles is
the fact, in this case, that the crimes of which the
respondent stands accused are of such a revolting
nature and of such a magnitude that the principles
applicable in ordinary domestic cases, prior to the
Bail Reform Act, founded on the presumption of
innocence of an accused, must be overruled and
bail refused. Griffiths J., who had before him not
only the material which led Parker A.C.J. to issue
the warrant of apprehension, but also the three
affidavits in support of the motion and, as well,
had the advantage of hearing the evidence of the
respondent and the four other witnesses, and of
observing them, found the evidence against the
respondent to be "significant" but it would not
constitute a strong case against him so far as he,
(Griffiths J.), was concerned. The strength of the
case could not be assessed until the hearing, with
its built-in protections and safeguards, is the
essence of what he said. Making such a finding did
not, as alleged by counsel, constitute an error in
my opinion. It was a conclusion to which he was
entitled to come on the evidence and it was rele
vant in the determination of whether or not to
make the bail order. It cannot, therefore, provide a
basis for setting aside the order.
The learned Judge then had to determine wheth
er or not the respondent was likely to appear for
his extradition hearing. Having assessed the evi
dence he concluded that "sufficient safeguards
may be built in to ensure his attendance". I find it
quite impossible to say that he wrongly exercised
his discretion in so concluding being aware, as he
was, of the enormity of the crimes with which the
respondent is charged.
On the second principle of bail release, I agree
with the learned Judge that there is no evidence
that the respondent poses a menace to the public.
Since it is clear that a grant of bail is the
exercise of a discretion, that discretion ought not
to be interfered with by a supervising court unless
it is satisfied that the judge proceeded on a wrong
principle or unless there was no evidence upon
which he could have reached the conclusions which
he did. For the reasons which I have heretofore
given, I am not satisfied that either prerequisite
appears on the record. Accordingly, I would dis
miss the section 28 application.
HEALD J.: I concur.
COWAN D.J.: I concur.
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