Commonwealth of Puerto Rico (Applicant)
v.
Humberto Pagan Hernandez (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, August 2, 1972.
Extradition—Judicial review—Jurisdiction—Refusal of
extradition judge to issue committal warrant—Not a "deci-
sion or order"—No jurisdiction to review—Extradition Act,
R.S.C. 1970, c. E-21, s. 18(1).
The refusal of an extradition judge to issue a committal
warrant under section 18(1) of the Extradition Act is not a
decision or order within section 28(1) of the Federal Court
Act and hence not within the jurisdiction of the Court of
Appeal to review and set aside.
U.S.A. v. Link [1955] S.C.R. 183, followed.
MOTION for judicial review.
G. P. Killeen and G. Morin for applicant.
C. C. Ruby for respondent.
JACKETT C.J. (orally)—We do not require to
hear from you Mr. Ruby.
The question that has to be decided is wheth
er this Court has jurisdiction to set aside a
decision or order of the Extradition Judge and
give him a direction concerning the duty that
was imposed on him by section 18(1) of the
Extradition Act, R.S.C. 1970, c. E-21, which
reads in part:
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.
In our view such a jurisdiction would be in
effect a jurisdiction to set aside the refusal of
the Extradition Judge to issue a committal war
rant under section 18(1).
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 "judgment" 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.
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.