A-305-77
In re Extradition Act and in re Michael John
McMahon
Court of Appeal, Pratte and Heald JJ. and
Maguire D.J.—Vancouver, February 16 and
March 7, 1978.
Judicial review — Extradition — Extradition Judge releas
ing fugitive from United States — Fugitive pleaded guilty in
U.S. Court to extradition crime, but did not return for sen
tencing — Different consequences under Extradition Act for
persons allegedly convicted of such a crime, and persons only
accused of such a crime — Whether or not this fugitive's
situation should be considered a conviction — Extradition Act,
R.S.C. 1970, c. E-21, s. 18(1)(a) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application by the Attorney General of
Canada, on behalf of the Attorney General of the United
States, for an order to review and set aside the decision or order
of a Judge under the Extradition Act to discharge McMahon.
McMahon pleaded guilty in a United States Court to an
extraditable offence (and that Court accepted the plea) but did
not appear on the return date set for sentencing. Applicant
contends that the extradition Judge erred in holding a plea of
guilty accepted by the Court did not constitute conviction. The
very narrow issue is the meaning to be given the word "convic-
tion" in the Extradition Act.
Held, (Pratte J. dissenting): the application is allowed. To
interpret section 18(1)(a) in that manner would produce the
result that any prisoner found guilty or who pleaded guilty to
an extradition offence but who was remanded to a future date
for sentencing could escape extradition by leaving the country
where the offence was committed and not returning to it for
sentencing. Such a result would be contrary to the concept that
extradition treaties are to be given a liberal construction in the
sense of being given a "fair interpretation" according to the
intention of the contracting parties and so to carry out their
manifest purpose.
Per Pratte J. dissenting: The rules governing extradition
differ with respect to two classes of fugitives—those alleged to
be accused of an extradition crime and those alleged to have
been convicted of such an offence. Under the laws of both the
United States and Canada a plea of guilty may be withdrawn,
before sentence, in a number of circumstances. Therefore, a
plea of guilty, before sentence, does not have the same finality
as a finding of guilt. In order to commit him for extradition
more than the mere proof of his plea of guilt should be
required; he should be considered as an accused, not as a
convicted fugitive.
Re Whipple [1972] 2 W.W.R. 613, agreed with. R. v.
Graves S.C.B.C., File Kamloops No. 142-76, judgment
dated July 19, 1976, referred to. R. v. Cole [1965] 2 All
E.R. 29, referred to. Industrial Acceptance Corp. Ltd. v.
The Queen [1953] 2 S.C.R. 273, applied. R. v. McInnis
(1974) 13 C.C.C. (2nd) 471, considered.
APPLICATION.
COUNSEL:
W. B. Scarth for Attorney General of
Canada.
J. B. Clarke for Michael John McMahon.
SOLICITORS:
Deputy Attorney General of Canada for
Attorney General of Canada.
Deverell, Harrop & Company, Vancouver, for
Michael John McMahon.
The following are the reasons for judgment
rendered in English by
PRATTE I (dissenting): This section 28 applica
tion is directed against a decision of a judge
refusing to commit an alleged fugitive under the
Extradition Act, R.S.C. 1970, c. E-21. It raises a
very narrow question: What is the meaning to be
given to the word "convicted" in that statute?
The Extradition Act provides for the extradition
of two kinds of fugitives: those who are accused of
an extradition crime committed in a foreign state
and those who have been convicted of such an
offence. The respondent, McMahon, was alleged
to be a fugitive of the second class and, for that
reason, his extradition was sought by the appli
cant. After his apprehension pursuant to the provi
sions of the Extradition Act, McMahon was
brought before a judge who, under section
18(1)(a), had to determine whether the alleged
fugitive had been convicted of an extradition
offence. It was then established that McMahon
had been accused of an extradition crime in Cali-
fornia, had pleaded guilty, and had absconded to
Canada before having been sentenced. On that
evidence, the judge ordered the respondent to be
discharged on the ground that the mere proof that
he had pleaded guilty was not proof that he had
been "convicted" within the meaning of the
Extradition Act. The applicant challenges the cor
rectness of that decision and submits that, under
the Extradition Act, a person who has pleaded
guilty but has not been sentenced must be con
sidered as having been convicted.
The word "conviction" is ambiguous. Its mean
ing varies with the context in which it is used. It
sometimes has a very broad meaning which may
include a plea of guilty. (See The Queen v. Blaby
[1894] 2 Q.B. 170.) However, it is frequently used
in a narrower sense which, though imprecise,
always implies a finding or determination of guilt
by an adjudicating authority; in that narrower
sense, a plea of guilty which is not followed by a
sentence does not amount to a conviction. (See
Regina v. Cole [1965] 2 Q.B. 388.)
The Extradition Act does not contain any
explicit indication of the meaning of the word
"convicted" in that statute. In those circum
stances, one should adopt, in my view, the inter
pretation which will produce the most reasonable
and fair results.
The rules governing the extradition of the two
classes of fugitives—those who are alleged to be
accused of an extradition crime and those who are
alleged to have been convicted of a similar
offence—differ in one important respect. The con
victed fugitive must be committed for extradition
"if such evidence is produced as would, according
to the law of Canada, ... , prove that he was so
convicted". The accused fugitive, on the other
hand, cannot be committed unless "such evidence
is produced as would, according to the law of
Canada, ... , justify his committal for trial, if the
crime had been committed in Canada."'
' Section 18 of the Act reads as follows:
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 convicted
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 commit
tal 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.
Having in mind that difference, the following
question must now be answered: Is it more reason
able that the extradition of a person who, like the
respondent, has pleaded guilty but has not yet been
sentenced be governed by the rules applicable to
the convicted fugitives or by those applicable to
the accused fugitives? I do not have any difficulty
answering that question. Under the laws of both
the United States and Canada, a plea of guilty
may be withdrawn, before sentence, in a number
of circumstances. Therefore, before sentence, a
plea of guilty does not have the same finality and
conclusive character as a determination or finding
of guilt. The accused who has pleaded guilty may,
as long as he has not been sentenced, have to be
tried. For that reason, I consider that, in order to
commit him for extradition, more than the mere
proof of his plea of guilt should be required; he
should, in other words, be considered as an
accused, not as a convicted fugitive.
For those reasons, I am of the view that the
extradition judge was right in holding that there
was no proof that the respondent, McMahon, had
been convicted within the meaning of section 18 of
the Extradition Act. I would, therefore, dismiss
the application.
* .
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application by
the Attorney General of Canada, on behalf of the
United States of America for an order to review
and set aside the decision or order to discharge
Michael John McMahon, made by His Honour
Judge Graham B. Ladner, a Judge of the County
Court of Vancouver acting as a Judge under the
Extradition Act, R.S.C. 1970, c. E-21, on April
28, 1977.
The evidence establishes and the extradition
judge found that McMahon pleaded guilty on
October 23, 1973, in the United States District
Court for the Northern District of California to
the offence of knowingly and unlawfully possess
ing, with intent to distribute to another person,
approximately 698 grams of a substance contain
ing a narcotic, to wit: Cocaine. He was remanded
for sentence but did not appear on the return date
set for his sentencing.
Applicant's sole ground of attack on the decision
of the extradition judge is that he erred in law in
holding that the plea of guilty to the charge (which
is considered to be an extradition crime) by
McMahon which was accepted by the United
States Federal Court, did not constitute his "con-
viction" by that Court of an extradition crime.
In submitting that the decision of the extradi
tion judge should be upheld, counsel for McMahon
contended that "conviction" as referred to in sec
tion 18(1)(a) of the Extradition Act contemplates
the sentence of the Court in addition to the verdict
of the Court, and that since, in this case, McMa-
hon was never sentenced, he was not "convicted"
within the meaning of said section 18(1)(a).
Said section 18(1)(a) reads as follows:
18. (1) The judge shall issue his warrant for the committal
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 convicted 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
In reaching his conclusion that the guilty plea
by McMahon did not amount to a "conviction",
the learned extradition judge appears to have
relied on the judgment of Fulton J. in the case of
Regina v. Gravest, wherein he relied on the case of
Regina v. Cole 3 which held that "a plea of guilty,
once recorded, does not rank as a conviction at all;
it only ranks as a conviction when the offender is
in fact sentenced."
However, notwithstanding those decisions, in my
opinion, the weight of the applicable jurisprudence
takes the opposite view that a finding that the
accused is guilty of the offence charged or a plea
t S.C. of B.C.—File Kamloops No. 142-76, judgment dated
July 19, 1976.
3 [1965] 2 All E.R. 29 at pp. 30 and 31 (English Court of
Appeal).
of guilty to an offence under ordinary circum
stances constitutes a conviction for the offence
although no sentence is imposed 4 .
Support for this view is also to be found, in my
opinion, in the comments of Kellock J. in the case
of Industrial Acceptance Corporation Limited v.
The Queens. In that case, "conviction" as used in
section 21 of the Opium and Narcotic Drug Act,
was, in the view of Kellock J. used in the sense of
verdict only, and not verdict and judgment
thereon 6 .
In my opinion, the meaning to be given to
"conviction" in section 18(1)(a) supra must be
looked at in the context of the statute in which it is
to be found. This becomes increasingly significant
in view of the provisions of section 3 of the Extra
dition Act which reads as follows:
3. In the case of any foreign state with which there is an
extradition arrangement, this Part applies during the continu
ance of such arrangement; but no provision of this Part that is
inconsistent with any of the terms of the arrangement has
effect to contravene the arrangement; and this Part shall be so
read and construed as to provide for the execution of the
arrangement.
The effect of section 3 is to require that section
18(1)(a) be read and construed so as to be in
harmony with the provisions of the applicable
Extradition Treaty which, in this case, is the Sup
plementary Convention of 1889 Between Her
Majesty and the United States of America (Case
pages 55 to 60).
Article VII of the Treaty reads as follows:
ARTICLE VII
The provisions of the said Tenth Article and of this Conven
tion shall apply to persons convicted of the crimes therein
respectively named and specified, whose sentence therefor shall
not have been executed.
In case of a fugitive criminal alleged to have been convicted
of the crime for which his surrender is asked, a copy of the
record of the conviction and of the sentence of the court before
which such conviction took place, duly authenticated, shall be
4 See: Regina v. McInnis (1974) 13 C.C.C. (2nd) 471 at p.
473 per Martin J.A. (Ont. C.A.). See also: Regina v. Blaby
[1894] 2 Q.B. 170; Rex v. Sheridan [1937] 1 K.B. 223; Regina
v. Grant (1936) 26 Cr. App. R. 8; Ex p. Johnston [1953] O.R.
207.
5 [1953] 2 S.C.R. 273 at pp. 279 and 280.
6 Cartwright J. expressed a similar view at p. 291.
produced, together with the evidence proving that the prisoner
is the person to whom such sentence refers.
It is noted that Article VII speaks of persons
convicted of crimes whose sentence therefor has
not been executed.
Article VII also refers to "a copy of the record
of the conviction" and "the sentence of the court
before which such conviction took place".
Thus, it is my view, that the Extradition Treaty
clearly distinguishes between "conviction" and
"sentence" and treats them as separate matters.
Accordingly, in the light of section 3 of the Extra
dition Act which makes it necessary to interpret
section 18(1)(a) supra consistently with the provi
sions of the Extradition Treaty, I am satisfied that
"convicted" as used in section 18(1)(a) should not
be interpreted so as to include the sentence of the
court as a necessary and essential component of
the conviction.
In support of this view, I find the decision of
Rae J. of the B.C. Supreme Court in Re Whipple'
to be persuasive. The only factual difference be
tween the Whipple case (supra) and the case at
bar is that in Whipple, the accused was found
guilty by a jury whereas in the case at bar, the
accused pleaded guilty which plea was accepted by
the United States Federal Court (Case page 96). I
do not consider this factual difference to be signifi
cant in view of the jurisprudence cited earlier
herein under footnote No. 4.
To interpret section 18(1)(a) in the manner
contended by counsel for McMahon would pro
duce the result that any prisoner found guilty of an
extradition offence or who pleaded guilty to an
extradition offence but who was remanded to a
future date for sentencing could escape extradition
by leaving the country where the offence was
committed and not returning to it for the sentenc
ing. Such a result would be contrary to the concept
that extradition treaties are to be given a liberal
construction in the sense of being given a "fair
interpretation" according to the intention of the
contracting parties and so as to carry out their
7 [1972] 2 W.W.R. 613 at 615 to 617.
manifest purpose 8 .
For the foregoing reasons, I have concluded that
the section 28 application should be allowed, the
decision of the extradition judge set aside and the
matter referred back to him for disposition on the
basis that a person who has entered a plea of guilty
to an extradition crime is a person who has been
convicted of such a crime within the meaning of
section 18(1)(a) of the Extradition Act.
* * *
MAGUIRE D.J.: I concur.
8 See: Re Whipple (supra) Rae J. at p. 617. See also: In re
Collins (1905) 11 B.C.R. 436 at p. 443; LaForest, Extradition
To and From Canada 1961 at p. 35.
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.