Karleton Lewis Armstrong (Applicant)
v.
State of Wisconsin and United States of America
(Respondents)
Court of Appeal, Thurlow J., Cameron and
Sweet D.JJ.—Toronto, September 5 and 6,
1972.
Judicial review—Extradition—Committal for extradition—
Whether decision of extradition judge subject to judicial
review under Federal Court Act, section 28.
Per Thurlow J. and Cameron D.J. (Sweet D.J. dissenting):
The decision of an extradition judge to commit a person for
extradition, and a warrant of committal for extradition, are
respectively a "decision" and "order" within the meaning of
section 28 of the Federal Court Act, and hence reviewable
thereunder.
U.S.A. v. Link and Green [1955] S.C.R. 183; Puerto
Rico v. Hernandez [1972] F.C. 1076, distinguished; Re
Milbury (1972) 25 D.L.R. (3d) 499; Lavell v. Att'y Gen.
of Can. [1971] F.C. 348, referred to.
Per curiam: A judge is a persona designata when acting
under the Extradition Act even though he also holds an
appointment as a judge under section 96 of the B.N.A. Act.
His decision as an extradition judge is accordingly review-
able under section 28 of the Federal Court Act as that of a
federal board, commission or other tribunal within the
meaning of section 2 of the Federal Court Act.
MOTION for judicial review.
Edward L. Greenspan for applicant.
Austin M. Cooper, Q.C. for respondents.
THURLOW J.—The applicant, Karleton Lewis
Armstrong was committed to gaol on June 30,
1972 under the provisions of the Extradition
Act to await extradition to the United States for
trial on a charge of murder and on four charges
of arson. On July 6, 1972 he applied to this
Court under section 28 of the Federal Court Act
to review the decision of the extradition judge
to commit him. Subsequently by an order of the
Court the applicant was required to show cause
why the application should not be quashed
under Rule 1100 on the ground that the Court
has no jurisdiction in the matter. On the date
fixed by the order for showing cause counsel
for the applicant and counsel for the State of
Wisconsin appeared and made submissions the
former taking the position that this Court has
jurisdiction the latter that it has not. Two points
that were discussed in the course of the argu
ment call for consideration.
The first of these was whether the decision of
the extradition judge to issue a committal war
rant or the warrant which he issued was a
"decision or order" within the meaning of sec
tion 28 of the Federal Court Act. That section
confers on this Court jurisdiction "Notwith-
standing section 18 or the provisions of any
other Act", to hear and determine an applica
tion 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 a federal board, commission or other tribu
nal", upon the grounds set out in the section.
I turn now to the Extradition Act, section 18
of which provides:
18. (1) The judge shall issue his warrant for the commit
tal of the fugitive to the nearest convenient prison, there to
remain until surrendered to the foreign state, or discharged
according to law,
(b) in the case of a fugitive accused of an extradition
crime, if such evidence is produced as would, according
to the law of Canada, subject to this Part, justify his
committal for trial, if the crime had been committed in
Canada.
(2) If such evidence is not produced, the judge shall
order him to be discharged.
The effect of this is that when a fugitive is
before an extradition judge the judge, if satis
fied that the evidence produced would justify
committal for trial according to the law of
Canada etc., issues his warrant to commit the
fugitive to gaol to await extradition, but if he is
not so satisfied he does not do so, in which
event the fugitive is released. In U.S.A. v. Link
and Green [1955] S.C.R. 183, the Supreme
Court of Canada held that the refusal of an
extradition judge to commit a fugitive was not a
"judgment" as defined by section 2(d) within
the meaning of section 41 of the Supreme Court
Act. "Judgment" was defined in section 2(d) of
that Act as including inter alia "decision" and
"order". Several weeks ago in Commonwealth
of Puerto Rico v. Hernandez [1972] F.C. 1076
this Court followed the judgment in the Link
and Green case in determining that such a refus
al to issue a warrant of committal was not a
"decision or order" within the meaning of sec
tion 28 of the Federal Court Act and according
ly declined to review the refusal of the extradi
tion judge to commit the fugitive. Such a refusal
is not a decision or order, as I understand it,
because nothing is decided by it. The fugitive is
simply released and his rights are not interfered
with or adversely affected. On the other hand
neither is anything determined against the
prosecution, in the sense that nothing is thereby
rendered res adjudicata and the proceeding can
be recommenced without the rights of the
prosecution to secure the extradition of the
fugitive being affected in point of law by the
judge's refusal.
Thus in Regina v. Morton (1868) 19 U.C.C.P.
9, Hagarty C.J. said at page 14:
The first objection raised before us was, that the prison
ers had been already arrested by warrant of the Police
Magistrate of Toronto, who had heard the charge and dis
charged the prisoners from custody, and that they were not
liable to a second arrest for the same cause.
I hardly see how the record of these former proceedings
is formally before us on the return to the habeas corpus and
certiorari; but, assuming we are to take cognizance of them,
I am of opinion that they cannot influence in any way our
decision. The failure of any one Magistrate, from mistake or
otherwise, to commit persons charged for extradition,
cannot, in my opinion, prevent the action of another duly
qualified officer from entertaining the charge on the same
or on fresh materials: it is either a complete bar to any
further proceeding or it is nothing.
In the same case Wilson J. said at page 23:
On this hearing, adjourned from time to time, the defend
ants were committed for extradition. They are here now on
a writ of habeas corpus, and the proceedings are before us
on a writ of certiorari.
The defendants ask to be discharged: 1st, because they
had before been discharged by Alexander McNabb,
Esquire, before whom they had been brought some time
ago, charged with the same offence; 2nd. because they
suggest that Gilbert McMicken had no authority to act in
Toronto and in Sandwich; and 3rd. because the proceedings
in the State of New York, before Mr. Ferris, were com
menced after the arrest of the parties here, for the purpose
of making copies of them evidence of their criminality, with
a view to their committal for extradition. They say they
ought not to be twice vexed with the same proceeding.
They were not tried and acquitted in the sense in which
the maxim "nemo bis vexari debet" applies. They were
discharged in the discretion of Mr. McNabb, a police magis
trate, I assume, on grounds satisfactory to himself. We have
his proceedings before us in an irregular manner, but, giving
them their full weight, they are no bar or answer to the case
before us any more than the dismissal of a charge by one
magistrate would preclude another from investigating the
same charge.
And Gwynne J. at page 26 stated the first
ground of the habeas corpus proceedings thus:
1st, Because, as is alleged, the prisoners had been already
brought up on the same charge before the Police Magistrate
of the City of Toronto and discharged; and in support of
this objection it is contended that the Statute of this Domin
ion, passed to give effect to the Extradition Treaty, author
izes but one arrest upon the same charge.
and then proceeded:
No authority was cited in support of the first objection,
and I can see no foundation in reason or principle for the
contention that the Statute, passed to give effect to the
statutory provisions of this Treaty, should be so construed
as to circumscribe the jurisdiction of the officers appointed
to carry it into effect within narrower limits than the juris
diction which every ordinary Justice of the Peace has over
offences charged to have been committed within the County
of which he is a Justice.
It never has been contended that the discharge of a
person accused of a felony committed within this Province,
when brought up before a Justice of the Peace for examina
tion, whether such discharge should be attributable to the
infirmity of the judgment of the Justice, or the insufficiency
of the evidence adduced before him, operates as a bar to the
same person being again brought up before another Justice
and committed upon the same charge, upon the same or
different evidence.
That a different rule in this respect should prevail in cases
arising under the Extradition Treaty from that which pre
vails in our own proceedings, in relation to criminal
offences committed within the limits of the Province, is
irreconcileable with the plainest principles of reason and
justice, and for such a contention nothing which is
expressed, or contained by implication in the Statute,
affords, in my judgment, any warrant or foundation.
See also U.S.A. v. Ford and Frary (1916) 29
D.L.R. 80, Ex parte Seitz (No. 2) (1899) 3
C.C.C. 127 and Re Harsha (1906) 11 O.L.R.
457. In the latter two cases proceedings were
recommenced after discharge of the fugitive on
habeas corpus following committal by the
extradition judge. A refusal by an extradition
judge to commit is accordingly in my view
simply the non-exercise of the power to commit
and neither interferes with nor adversely affects
the rights of either party to the proceeding.
To my mind, however, different considera
tions come into play when the extradition judge
is satisfied that the evidence justifies a commit
tal and thereupon issues his warrant. When this
happens the rights of the fugitive are interfered
with in that he is deprived of his liberty and is
put a stage closer to extradition.
He has always had and still has the right to
test the validity of his committal by habeas
corpus proceedings in the provincial courts
which, where the English practice applies, may
include a review of the sufficiency in point of
law of the evidence on which the committal is
based. Vide Schtraks v. Government of Israel
[1964] A.C. 556. The case of Regina v. Morton,
to which I have already referred, indicates that
a fugitive may also have had prior to June 1,
1971 a right to proceed in the provincial courts
by certiorari directed to the extradition judge to
have the committal reviewedl but from that
date exclusive jurisdiction to entertain certiorari
proceedings against a federal board, commis
sion or other tribunal was vested by section 18
of the Federal Court Act in the trial division of
the Federal Court. Vide Re Milbury and The
Queen [1972] 25 D.L.R. (3d) 455. However,
with respect to decisions or orders made after
June 1, 1971 this certiorari jurisdiction of the
trial division has been withdrawn by section
28(3) of the Federal Court Act in favour of the
new and even broader jurisdiction conferred by
section 28(1) on the Court of Appeal to hear
and determine an application to review any
decision or order of a federal board, commis
sion or other tribunal, other than a decision or
order of an administrative nature not required
by law to be made on a judicial or quasi-judicial
basis. Vide Creative Shoes Ltd. v. D.M.N.R.
[1972] F.C. 993 and Blais v. Basford [1972]
F.C. 151.
On its face the committal warrant is no mere
authorization to detain the fugitive but is a
command in Her Majesty's name, to a peace
officer to convey the applicant into the custody
of the keeper of the gaol and a further com
mand, in Her Majesty's name, to the keeper of
the gaol to receive the fugitive into custody and
keep him in custody until he is thence delivered
under the Act. In my opinion such a warrant is
an "order" and the action of the extradition
judge in issuing it is a "decision" within the
meaning of section 28 of the Federal Court
Act and is reviewable on the grounds for review
permitted by that section subject only to the
question whether the extradition judge is a fed
eral board, commission or other tribunal as
defined in section 2, which is the second and
remaining point requiring consideration.
On that point I agree, with respect, with the
opinion expressed by the Court of Appeal of
New Brunswick in Re Milbury and The Queen
(supra) that a County Court Judge when acting
as a judge under the Extradition Act does so as
a persona designata and I think as well that
there is no basis for distinguishing for this pur
pose the case of an extradition judge who holds
an appointment made under section 96 of the
British North America Act from the case con
sidered by this Court in Lavell v. Attorney Gen
eral of Canada [1971] F.C. 347 where a County
Court Judge exercising powers conferred on
him as a person designated by the Indian Act
was held to be a federal board, commission or
tribunal within the meaning of the definition in
section 2 of the Federal Court Act.
I would affirm the jurisdiction of the Court to
hear and determine the application.
* * *
CAMERON D.J. concurred.
* * *
SWEET D.J. (dissenting in part)—This matter
arises out of an application, heard by His
Honour Judge H. Waisberg, to extradite the
appellant pursuant to the provisions of the
Extradition Act.
In his reasons for judgment, dated the 30th
day of June, 1972, His Honour said:
I find that the offences in respect of which these proceed
ings are taken are not of a political character and that these
proceedings are not being taken with a view to prosecute or
punish the respondent for an offence of a political charac
ter. The respondent shall be committed to the Don Jail in
Toronto, there to remain, until surrendered to the State of
Wisconsin or discharged according to law.
Bearing the same date is Judge Waisberg's
warrant of committal.
The formal "application to review and set
aside" contains:
TAKE NOTICE that an application is made on behalf of
Karleton Lewis Armstrong to this Honourable Court pursu
ant to Section 28 of The Federal Court Act to review and
set aside the decision of His Honour Judge H. Waisberg
pursuant to The Extradition Act, Revised Statutes of
Canada, 1970, Chapter E-21, rendered on the 30th day of
June, 1972.
On August 14, 1972 The Honourable, the
Chief Justice of this Court ordered:
The applicant is hereby required to show cause, before this
Court in Toronto, on Tuesday September 5, 1972 commenc
ing at 10:30 a.m., why his application to review and set
aside herein should not be quashed under Rule 1100 on the
ground that the Court has no jurisdiction in the matter.
Relevant legislation includes:
(a) Section 18(1) and (2) of the Extradition
Act; viz.:
18. (1) The judge shall issue his warrant for the commit
tal of the fugitive to the nearest convenient prison, there to
remain until surrendered to the foreign state, or discharged
according to law,
(a) in the case of a fugitive alleged to have been convict
ed of an extradition crime, if such evidence is produced
as would, according to the law of Canada, subject to this
Part, prove that he was so convicted, and
(b) in the case of a fugitive accused of an extradition
crime, if such evidence is produced as would, according
to the law of Canada, subject to this Part, justify his
committal for trial, if the crime had been committed in
Canada.
(2) If such evidence is not produced, the judge shall
order him to be discharged.
(b) Section 28(1) of the Federal Court Act, a
portion of which is:
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 deci
sion 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 ....
That is followed by the grounds on which the
Court of Appeal may act.
(c) The definition of "judgment" in section 2
of the Supreme Court Act which is:
"judgment" when used with reference to the court
appealed from, includes any judgment, rule, order, deci
sion, decree, decretal order or sentence thereof; and
when used with reference to the Supreme Court, includes
any judgment or order of that Court;
The question of jurisdiction of this Court to
deal with an application to set aside the refusal
of an Extradition Judge to issue a committal
warrant under section 18(1) came before this
Court in the matter of the request for extradi
tion of Humberto Pagan Hernandez by the
Commonwealth of Puerto Rico on August 2,
1972. My Lord, the Chief Justice delivering the
judgment of the Court said, inter alia:
The question is, therefore, whether such a refusal is a
"decision or order" within section 28(1) of the Federal
Court Act.
In our view the matter is determined by U.S.A. v. Link
[1955] S.C.R. 183. In that case there was an application for
leave to appeal from a similar refusal of an Extradition
Judge; and the question was whether the refusal was a
"judgment" as defined by section 2(d) of the Supreme Court
of Canada Act, R.S.C. 1952, c. 259, which defined "judg-
ment" to include inter alia "decision" and "order".
The decision in that case was the unanimous decision of
all nine judges of the Court, and was contained in an
announcement of the Chief Justice, which is reported in
part as follows:
Without calling on Counsel for the respondents the Chief
Justice announced that the Members of the Court were
unanimously of the opinion that there was no jurisdiction,
as the refusal of Chief Justice Scott was not a judgment,
as defined by s. 2(d), within the meaning of s. 41 of the
Supreme Court Act.
We can find no basis for adopting a meaning of either
decision or order in section 28 of the Federal Court Act that
is different from, or broader than, the meaning as found in
section 2(d) of the then Supreme Court of Canada Act. We
are, therefore, of the view that we are bound by the 1955
decision of the Supreme Court of Canada to hold that this
Court has no jurisdiction in this case.
Although the appellant's memorandum of
points of argument is silent on it, counsel for
the appellant, in his oral submission attempted
to distinguish the Hernandez case on the ground
that there was a refusal to issue a warrant of
committal and here a warrant of committal was
issued.
It is my understanding that one of the posi
tions taken on behalf of the appellant is to the
effect that when there is a refusal of the Extra
dition Judge to issue a committal warrant there
is actually nothing done,—that no decision is
made and no order is made within the meaning
of section 28(1) of the Federal Court Act, and
that, accordingly, there is no decision and no
order from which to appeal with the result that
in those circumstances this Court could have no
jurisdiction.
However, to me it seems quite clear that if
the usual, common and ordinary usage of the
words, "decision" and "order" were applicable
to them, as they appear in section 28(1), a
refusal would necessarily involve both decision
and order. For example, by virtue of section 18
of the Extradition Act, before the Judge can
refuse, in the case of a fugitive alleged to have
been convicted of an extradition crime, he may
be obliged to decide that the evidence produced
would not, according to the law of Canada,
prove that he was so convicted or, in the case
of a fugitive accused of an extradition crime,
would not, according to the law of Canada,
justify his committal for trial if the crime
alleged had been committed in Canada. If he so
decides he is required by section 18(2) to order
him to be discharged. The action the Judge
takes must be the result of the process of "deci-
sion" when "decision" is used in the ordinary,
colloquial manner. That decision, if it be a deci
sion, which requires refusal must be followed
by what is commonly referred to, and indeed is
actually referred to in section 18(2), as an
order.
Even if the decision must be something more
than mental activity, and is to be taken as
meaning some resulting pronouncement or
some expressed determination of a relevant
issue or a formal finding, then in that sense, too,
it would be expected that normally the judge
would make such a decision and make it avail
able to the interested parties.
Notwithstanding all this, in U.S.A. v. Link
(supra), the Supreme Court of Canada held that
the refusal "was not a judgment as defined by s.
2(d), within the meaning of s. 41 of the Supreme
Court Act", as then enacted, and this, even
though as so defined, "judgment" included
"order" and "decision".
In the Hernandez case (supra), this Court
followed the Link and Green case as, in my
respectful opinion, it was bound to do.
Thus, and on the authority of the Link case
followed in the Hernandez case, I am impelled
to the conclusion that the meanings of the
words "decision" and "order" as ordinarily
used and in common parlance are not applicable
when dealing with section 28(1) of the Federal
Court Act in combination with section 18(1)
and (2) of the Extradition Act.
Obviously for a warrant of committal there
must be both a decision and an order as those
words are commonly used, just as there must,
in that sense, be a decision and an order in the
event of refusal. Of course the decisions and
orders necessarily differ but in both cases a
decision must be made which would normally
be expected to be pronounced, and in both
cases an order must be made.
If what is done in the event of refusal is
neither a decision nor an order within the mean
ing of section 28(1) (and as I see it that in effect
results from the Link case) then it would seem
to me that what is done in the event of the
issuing of a warrant of committal is not a deci
sion nor an order within the meaning of section
28(1). If it is not such a decision or order, and
respectfully I do not think it can be held here
that it is, then this Court has no jurisdiction in
this matter.
Respectfully, too, I do not think that the fact
that in the event of a refusal there would be the
right, at least under some circumstances, to
make one or more further applications for
extradition affects the situation. What the
Extradition Judge does when he refuses is
either a decision or an order within the meaning
of section 28(1) of the Federal Court Act or it is
not.
With respect, also, I venture to indicate that
in my opinion it cannot be said that the position
of an applicant would not be affected in the
event of refusal. If extradition is not granted in
any extradition proceeding, the applicant
cannot, by virtue of the proceeding in which the
refusal occurs, implement its right to punish the
fugitive if he is already convicted or to try him
on the charge against him, which rights the
applicant would have if the fugitive were within
its jurisdiction.
I would hold that this Court is without juris
diction in this matter.
I take the liberty of adding that I am in
agreement with their Lordships that His
Honour Judge Waisberg did not sit as a judge
appointed under section 96 of the British North
America Act. When section 9(1) of the Extradi
tion Act includes judges of the County Courts
of a province (and Judge Waisberg is such a
judge) in my view it merely designates and
describes certain persons who may act judicial
ly in extradition matters. It does not confer
jurisdiction on the County Court per se.
THURLOW J.:
See also Regina v. Lewes Justices [1971] 2 A11 E.R. 1126
where certiorari was successfully invoked to attack a sum
mons to a witness.
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.