Frank Cotroni (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal (A-219-73), Jackett C. J., Thur-
low and Pratte JJ.—Montreal, January 24 and
25, 1974.
Extradition—Judicial review—Admissibility of documen
tary evidence—Whether judicial discretion to be exercised
before admission—Whether denial of "due process of law"
and of fundamental justice—Extradition Act, R.S.C. 1970, c.
E-21, s. 16—Canadian Bill of Rights, ss. 1(a), 2(e).
Application was made under section 28 of the Federal
Court Act to set aside a committal warrant issued under the
Extradition Act on the grounds that
(1) certain documentary evidence was wrongly admitted
under section 16 of that Act without the judge exercising a
discretion before the documents were admitted, and
(2) it was contrary to the Canadian Bill of Rights to admit
such documentary evidence.
Held, dismissing the application,
(1) the words "Depositions ... may ... be received in
evidence" in section 16 mean that the depositions of the
class described therein are "receivable" in evidence or
"admissible" in evidence and therefore the first point is
rejected;
(2) the admission of the documentary evidence not allow
ing the fugitive an opportunity to cross-examine the depo-
nents is not a "denial of due process of law guaranteed by
section 1(a) of the Canadian Bill of Rights nor of his right
under section 2(e) thereof to a fair hearing in accordance
with the principles of fundamental justice": Armstrong v.
State of Wisconsin [1973] F.C. 437.
JUDICIAL review.
COUNSEL:
Kenneth C. Binks, Q.C., W. J. Simpson and
L. A. Landreville, Q.C., for applicant.
L. P. Landry, Q.C., for respondent.
SOLICITORS:
Binks, Chilcott and Simpson, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—In support of this sec
tion 28 application to set aside a committal
warrant issued under the Extradition Act, two
principal points were argued, namely:
first , that certain documentary evidence was
wrongly admitted under section 16 of that Act
without the extradition judge having exer
cised a discretion that, as it was contended,
must be exercised before documents can be
admitted thereunder, and second, that it was
contrary to the Bill of Rights to admit such
documentary evidence.
The Bill of Rights point was decided against
the applicant's contention by this Court in Arm-
strong v. Wisconsin [1973] F.C. 437, and, as we
understand it, the Supreme Court of Canada
refused to grant leave to appeal from that deci
sion. In the circumstances, we are all of opinion
that that point should be rejected.
The first point is based on a certain interpre
tation of section 16 of the Extradition Act,
R.S.C. 1970, c. E-21 which reads as follows:
16. Depositions or statements taken in a foreign state on
oath, or on affirmation, where affirmation is allowed by the
law of the state, and copies of such depositions or state
ments and foreign certificates of, or judicial documents
stating the fact of conviction, may, if duly authenticated, be
received in evidence in proceedings under this Part.
It is essential to the applicant's point that the
words in section 16 "Depositions ... may .. .
be received in evidence" be interpreted as
requiring the extradition judge to exercise a
judicial discretion (other than judicial discre-
tions exercisable under the general law in con
nection with the admission of evidence in crimi
nal cases) as a condition precedent to admitting
any document under section 16. Admittedly,
this interpretation would not be open if the
words in question had been "Depositions . . .
are ... admissible in evidence". In our view,
however, the words "Depositions ... may .. .
be received in evidence" in section 16 mean
nothing more or less than that the depositions of
the class described therein are "receivable" in
evidence or "admissible" in evidence. For that
reason, the first point must also be rejected. It,
therefore, becomes unnecessary to examine the
other difficulties in the way of accepting the
applicant's first point.
For the aforesaid reasons, we are all of opin
ion that this section 28 application should be
dismissed.
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.