A-437-75
United States of America (Applicant)
v.
John T. Couche (Respondent)
Court of Appeal, Heald and Ryan JJ., and
MacKay D.J.—Toronto, February 24 and 27,
1976.
Judicial review—Extradition—Whether crime of receiving
and having possession of stolen goods is an extraditable crime
falling within Article I, s. 3 of The Supplementary Convention
for the Extradition of Criminals, 1889—Ashburton-Webster
Treaty, 1842, Art. X—Supplementary Convention, 1889, Art.
I, s. 3; 1900, Art. I, s. 11; 1951, Art. I, ss. 11A and I 1B.
Respondent was charged with receiving and possessing
embezzled and stolen goods. An application for extradition was
denied and he was discharged. The Extradition Judge followed
the 1904 Re Cohen decision ((1904) 8 C.C.C. 251), stating that
the case held that "money, valuable security or other property"
in the Extradition Act off 1889 did not extend to "goods"
because of the ejusdem generis rule.
Held, granting the application, and setting aside the order,
there is no doubt that the Extradition Judge correctly assessed
the Cohen case. But it is difficult to apply the ejusdem generis
rule to section 3 of Article I so as to restrict the scope off "other
property" to exclude "goods". "Other property" should be read
in its ordinary sense as including goods. Certain extraditable
crimes were added to Article I in 1900, including (section 11)
"obtaining ... other property by false pretences ...". In Re
Rosen ((1931) 56 C.C.C. 162), this section was construed as
not including goods. In 1951, the section was amended to read
"obtaining property, money or valuable securities by false
pretences ..." (section 11A). While it was argued that the
wording of the new section indicated recognition that both
section 3 and section 11 had the limited meaning expressed in
the Cohen and Rosen cases, and that the change in wording off
section 11 extended the scope of the new section without
altering that off section 3, the purpose of the amendments was
beyond simply the inclusion of "goods". And, if it is correct
that both Re Cohen and Re Rosen were wrongly decided, it
would mean that the parties were proceeding under a misappre
hension if, in substituting section 11A they were assuming that
the two cases correctly stated the law. If, before the change in
section 11, section 3 was broad enough to cover receiving off
goods, the new wording off section 11A would not restrict
section 3 by implied amendment, so as to remove goods from its
coverage.
Re Cohen (1904) 8 C.C.C. 251 and Re Rosen (1931) 56
C.C.C. 162, discussed.
JUDICIAL review.
COUNSEL:
B. R. Shilton for applicant.
E. J. Levy for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Earl J. Levy, Toronto, for respondent.
The following are the reasons for judgment
delivered orally in English by
RYAN J.: This is an application under section 28
of the Federal Court Act to review and set aside
the order, dated July 21, 1975, of His Honour
Judge W. M. Martin, an Extradition Judge,
whereby an application for the extradition of the
respondent was denied and under which the
respondent was discharged, following proceedings
taken under the Extradition Act.
The proceedings in respect of which extradition
was sought were commenced in the United States
District Court for the Eastern District of Michi-
gan, Southern Division. An indictment charged the
respondent and two others with receiving and
having in their possession "... chattels of a value
in excess of $100, that is, 73,580 pounds of coil
and sheet metal which had been embezzled and
stolen ...", the accused then knowing the chattels
to have been embezzled and stolen. It was alleged
that the goods were embezzled and stolen while
they were moving as a part of the interstate ship
ment of freight; the charges were laid under sec
tions falling within Title 18 of the United States
Code.
Article X of a Treaty, signed at Washington in
1842, between Her Majesty and the United States
of America, the Ashburton-Webster Treaty, pro
vided for the extradition of persons charged with
crimes specified in the Article. A Supplementary
Convention, signed in 1889, in its Article I, made
the provisions of Article X applicable to additional
crimes including:
3. Embezzlement; larceny; receiving any money, valuable secu
rity, or other property knowing the same to have been embez
zled, stolen, or fraudulently obtained.
The crucial issue in the present case is whether
the crime of receiving and having possession,
charged in the indictment, is an extradition crime
falling within Article I, section 3 of the 1889
Convention.
The goods which were alleged to have been
received, 73,580 pounds of coil and sheet metal,
were clearly property and would appear to be
covered by the words "other property" in Article I,
section 3. The learned Extradition Judge, however,
followed a decision of Mr. Justice Anglin, as he
then was, in Re Cohen'. In his reasons, as set out
in the transcript in the present case, Judge Martin
said, at page 81, that Mr. Justice Anglin had held
"... that the words `money, valuable security or
other property', in the said Extradition Act of
1889... do not extend to `goods' because of the
ejusdem generis rule." He added, at page 82 of the
transcript:
The offence for which the United States of America seeks
extradition in the present case is identical to that in the case of
Re Cohen. Accordingly, it follows that the offence in this case
is not an extraditable offence because a quantity of steel cannot
be construed ejusdem generis with money or valuable security.
There is no doubt that Judge Martin correctly
assessed the Cohen case. If that case accurately
states the law, it follows that the order which
Judge Martin made is well founded. With respect,
however, I find difficulty in applying the ejusdem
generis rule to Article I, section 3 so as to restrict
the scope of "other property" in such a way as to
place goods beyond the reach of the section. For
purposes of the section, I find it difficult to identi
fy a class that would consist of money, valuable
security and other items of property, but which
would exclude goods. At any rate, in my view one
should not strain to find such a genus or class;
"other property" should rather be read in its ordi
nary sense as including goods.
It was urged that such a reading would neglect
the presence in the section of the words "money
and valuable security", items that would have been
covered if the words "receiving property" had been
used rather than the words "receiving any money,
valuable security or other property". One can only
speculate on the reason for specifically mentioning
these two types of property. I do, however, find
interesting the suggestion made in a helpful
editorial note to the Cohen case, a note from which
1 (1904) 8 C.C.C. 251.
I quote this passage: 2
The words "receiving any money, valuable security or other
property, knowing the same to have been embezzled, stolen or
fraudulently obtained", when considered in their natural or
common meaning, and not with the strictness with which penal
statutes are construed, seem amply sufficient to include goods
and all classes of property which may be the subject of theft or
embezzlement.
The word "receiving" being associated in the treaty with the
words "embezzled, stolen or fraudulently obtained," the latter
term must in any case be restrictive to such personal property
as is capable of being moved.
The omission of the specific terms "money" and "valuable
security" would have created a doubt whether the phrase
"receiving property" could mean more than receiving goods,
and it seems reasonable to suppose that the terms "money" and
"valuable security" would be specifically mentioned for greater
caution and that both should be declared by the parties to be
"property" for the purposes of the treaty.
It is submitted that the context and the general purpose of
the treaty appearing from the convention itself, indicate that
the terms "money" and "valuable security" are not used in a
restrictive sense with the idea of separating or selecting one
class of stolen property from another class, and that such being
the case the ejusdem generis rule is eliminated from the
discussion.
To read the words "other property" as including
goods—and I suggest that this is the more natural
reading—is in accord with the approach to the
interpretation of extradition treaties described by
G. V. La Forest in Extradition to and from
Canada at page 21:
In construing extradition treaties and statutes, it is a well
established rule that courts should give them a fair and liberal
interpretation with a view to fulfilling Canada's international
obligations.
Counsel for the respondent advanced another
submission which requires careful consideration.
By a Supplementary Convention in 1900, cer
tain crimes were added to the list of crimes which
were numbered 1 to 10 in Article I of the Conven
tion of 1889 in respect of which extradition might
be granted. The added crimes include:
11. Obtaining money, valuable securities, or other property by
false pretences.
This section was construed in Re Rosen'. Re
Cohen was followed, the ejusdem generis rule was
2 (1904) 8 C.C.C. 251, at page 262.
3 (1931) 56 C.C.C. 162.
applied, and it was held that "other property" did
not include goods.
By a Supplementary Convention signed in 1951,
Article I, section 11 was amended by substituting
two new sections, 11A and 11B. The new section
11A reads:
11n. Obtaining property, money or valuable securities by false
pretences or by defrauding the public or any person by deceit or
falsehood or other fraudulent means, whether such deceit or
falsehood or any fraudulent means would or would not amount
to a false pretence.
It was argued that the wording of the new
section, particularly the change in the position of
the word "property", indicated a recognition by
the parties to the Convention that both section 3
and section 11 of Article I had the limited mean
ing expressed in Re Cohen and Re Rosen and that
the change in the wording of section 11, effected
by the new section 11A, had, and was intended to
have, the consequence of extending the scope of
the new section, while leaving that of section 3
unaltered. In my opinion, for our present purpose,
this would be to read too much into the change.
And in any event such an intention seems unlikely.
Actually, one can only-- speculate as to the reasons
for the amendments. That they had a broad pur
pose going well beyond concern over the inclusion
or non-inclusion of goods, if that indeed was a
concern at all, is indicated, not only by the amend
ments themselves, but by the preamble to the
Convention which stated the desire of the parties
to modify and supplement the list of extraditable
crimes ". .. so as to comprehend any and all frauds
which are punishable criminally by the laws of
both contracting states, particularly those which
occur in connection with transactions in
securities ...." 4
At any rate, if I am right in my view that Re
Cohen and Re Rosen were wrongly decided, it
would mean that the parties to the Convention
were proceeding under a misapprehension if, in
substituting section 11A, they were proceeding on
the basis that those two cases correctly expressed
the law. If, before the change in Article I, section
11, Article I, section 3 was broad enough to catch
a receiving of goods, as in my opinion it was, I
cannot see that the new wording adopted by the
4 G. V. La Forest, Extradition to and from Canada, p. 171.
contracting parties in Article I, section 11A, would
have the effect of restricting section 3, by implied
amendment, so as to remove goods from its
coverage.
I would grant the application and set aside the
order of the learned Extradition Judge. I would
refer the matter back to an Extradition Judge for
determination having regard to these reasons.
* * *
HEALD J. concurred.
* * *
MACKAY D.J. concurred.
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.