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A-664-78
John H. Meier (Applicant)
V.
United States of America (Respondent)
Court of Appeal, Jackett C.J., Urie J. and Kelly D.J.—Vancouver, March 28, 1979.
Judicial review — Extradition — Extradition Judge grant ing extradition of fugitive to United States — Offences fugitive charged with not involving interstate transportation or use of the mails — Whether or not jurisdiction of Extradition Judge can be established if offences lacking element of interstate transportation or use of the mails — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Treaty on Extradition between Canada and the United States of America, Washing- ton, December 3, 1971 (Canada Gazette, Part 1, April 3, 1976, p. 1521), Article 2, section (3).
This is a section 28 application to review the decision of an Extradition Judge granting the request for extradition of the fugitive to the United States. Applicant submits that three facts are necessary to establish the Extradition Judge's authority to grant extradition: 1. that the offence be against a federal law of the United States; 2. that an offence to which section (1) or (2) of Article 2 applies be a substantial part of the offence; and 3. that transporting, and use of the mails or interstate facilities be elements of the offence charged. Fugitive's counsel argues that the offences with which the fugitive was charged are not within the category of offences for which the right of extradition is conferred by the Treaty because the offences do not include the third element necessary to establish jurisdiction. The Court must interpret Article 2 of the Treaty, and particularly section (3) of that Article.
Held, the application is dismissed. To come within Article 2 section (3) the offence charged must be one against a federal law and one of the substantial elements of it must be one of the offences listed in the schedule to the Treaty. The applicability of the Treaty is brought down on the fugitive by his deviant acts and remains related to the consequences of those acts. Where, as here, the fugitive employed conduct which constitut ed a listed offence—forgery—to accomplish the infraction of the federal law, he had brought himself within the ambit of section (3). No transportation, transporting, use of the mails or interstate facilities was involved and even if it had been, that fact would have been immaterial to the liability of the fugitive to be extradited.
APPLICATION for judicial review. COUNSEL:
John R. Taylor and Dale Vick for applicant. Paul W. Halprin for respondent.
SOLICITORS:
John Taylor Associates, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
KELLY D.J.: This is a section 28 application to review the decision of His Honour Judge Paris of the County Court of British Columbia sitting as an Extradition Judge under the Extradition Act, R.S.C. 1970, c. E-21 ("the Act") whereby he granted the request for the extradition of the fugitive to the United States of America.
The request for extradition, made to Canada, sought the delivery of the fugitive to the United States of America because he had been charged, in the United States District Court for the District of Utah, Central Division, with the following offences:
COUNT I
That on or about November 10, 1976, and January 5, 1977, in the Central Division of the District of Utah, JOHN H. MEIER did corruptly endeavor to influence, obstruct and impede the due administration of justice by submitting and causing to be submitted before the United States District Court for the District of Utah in the case of Hughes Tool Company (now Summa Corporation) v. John H. Meier, et al, C-71-72, the following documents which said JOHN H. MEIER then knew had been fabricated and were not what they purported to be:
A document purportedly signed by Howard R. Hughes show ing the date of January 1974 in the top right-hand corner, also marked as Exhibit A in a Motion to Postpone Trial filed on behalf of JOHN H. MEIER on November 10, 1976, and also marked as defendant's Exhibit C-331; and
A document purportedly signed by Howard R. Hughes regarding JOHN H. MEIER dated June 21, 1974, also marked as Exhibit B in the Motion to Postpone Trial filed on behalf of JOHN H. MEIER on November 10, 1976, and also marked as defendant's Exhibit UU;
in violation of 18 United States Code, Section 1503.
COUNT II
That during the period from on or about November 9, 1976, to on or about March 27, 1978, in the Central Division of the
District of Utah and elsewhere, JOHN H. MEIER did corruptly endeavor to influence, obstruct, and impede the due administra tion of justice by publicizing and causing to be publicized a document which purported to be a memorandum from Chester Davis which document implied that improper arrangements had been made between United States District Court Judge Aldon J. Anderson and officials of the Summa Corporation regarding Judge Anderson's pending rulings in the case of Hughes Tool Company (now Summa Corporation) v. John H. Meier, C-71-72, whereas, as JOHN H. MEIER then and there well knew, the said document was a complete fabrication and was not prepared by, or with the consent of, Chester Davis; in violation of 18 United States Code, Section 1503.
The legality of the Treaty * and the applicability of its terms has not been attacked, and no question has been raised as to the jurisdiction of the Judge to enter upon the hearing of the said proceedings. The said Judge was, therefore, properly qualified to issue the warrant for the apprehension of the fugitive on such evidence or after such proceedings as, in his opinion, would, subject to the Extradi tion Act, justify the issue of his warrant if the crime of which the fugitive is accused had been committed in Canada. Before issuing the warrant, such a Judge must be of the opinion that the crime of which the fugitive has been accused is one for which an order for extradition might be made and that the evidence produced before him, according to the laws of Canada, would justify his committal for trial if the crime had been charged in Canada.
The only attack made upon the order pressed by counsel for the fugitive was that the offences with which the fugitive was charged were not within the category of offences for which the right of extradi tion is conferred by the Treaty. Having regard to the decision of the Supreme Court of Canada in U.S.A. v. Shephard [1977] 2 S.C.R. 1067, counsel for the applicant did not pursue, in this Court, his contention that the evidence adduced before the Extradition Judge would not have justified the fugitive's committal for Trial.
To decide as to whether the fugitive is lawfully extraditable on account of being charged with the offences above described requires the interpreta tion of Article 2 of the Treaty and particularly section (3) thereof.
*Treaty on Extradition between Canada and the United States of America, dated at Washington, December 3, 1971 (Canada Gazette, Part I, April 3, 1976, p. 1521).
Section (1) of Article 2 authorizes the delivery up of persons according to the provisions of the Treaty for any of the offences listed in the schedule annexed to the Treaty, provided that such offences are punishable by the laws of both the contracting parties by a term of imprisonment exceeding one year.
Section (2) provides that extradition may be granted for attempts to commit, conspiracy to commit or being a party to any of the offences listed in the schedule.
Section (3) reads as follows:
(3) Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule, or made extraditable by para graph (2) of this Article, is a substantial element, even if transporting, transportation, the use of the mails or interstate facilities are also elements of the specific offense.
Unlike sections (1) and (2) which apply equally to extraditions from Canada and from the United States, section (3) pursuant to which the extradi tion of this fugitive is sought, relates only to extradition from Canada.
It is to be noted that in the Treaty the word "offense" is used to describe both (1) the deviant conduct in which the fugitive is alleged to have engaged, i.e. the specific infraction of the law, and (2) the generic description of the elements con stituting the essentials of some recognizable crime, e.g. murder, bribery, forgery, perjury, or arson. In general, as we understand it, the definition of "crimes" and the provision of punishment therefor in the United States is a field of legislation reserved to the individual States of the Union and the legislative authority of the Congress of the United States does not ordinarily extend to them; however, federal laws may be enacted there creat ing offences and providing punishment therefor, particularly where the constituents of the offence created include the transporting of persons or property across an interstate boundary. But not all of such offences against a federal law attract extradition; certain of them may only be the foun dation of an extradition proceeding in Canada if the conditions and limitations of section (3) are met.
On behalf of the fugitive, it was submitted that in this case three facts were required to be estab lished in order that the Extradition Judge might exercise jurisdiction to grant extradition for either of the offences charged: 1. that the offence be an offence against a federal law of the United States; 2. that one of the offences to which section (1) or section (2) of Article 2 applies be a substantial element of the offence charged; 3. that transport ing, transportation and the use of the mails or interstate facilities also be elements of the offence charged.
The evidence before the Extradition Judge demonstrated that the alleged conduct of the fugi tive in corruptly endeavouring to influence, obstruct, or impede the due administration of jus tice would, if proven, constitute an offence against a federal law of the United States, and also estab lished that the means by which the aforesaid offence was alleged to have been brought about— forgery, an offence listed in clause 17 of the schedule to the Treaty—was a substantial element in the federal offence charged: transporting, trans portation, the use of the mails or interstate facili ties by the fugitive was not alleged in the indict ment and therefore is not alleged as an element of the specific offence with which he was charged, nor was any attempt made before the Extradition Judge to prove any of such acts.
It was submitted on behalf of the fugitive that his extradition under section (3) is not available because none of transporting, transportation, the use of the mails or interstate facilities is also an element of the offence of which he is charged.
After careful consideration of section (3) in the light of the submissions made on behalf of the fugitive, we are unable to accept the interpretation of it which would be necessary if we were to accede to the submissions of the fugitive. In our opinion, section (3) as it applies to this fugitive should be construed as if it were cast as follows:
If a person sought to be extradited has been charged with an infraction of a law of the United States and a substantial element of the conduct constituting the infraction charged would of itself constitute one of the offenses listed in the annexed schedule, extradition shall be granted, notwithstanding
that transporting, transportation, the use of the mails, or interstate facilities are also elements of the specific infraction charged.
In other words, to come within Article 2 section (3) the offence charged must be one against a federal law and one of the substantial elements of it must be one of the offences listed in the schedule to the Treaty. The applicability of the Treaty is brought down on the fugitive by his deviant acts and remains related to the consequences of those acts. Where, as here, the fugitive employed con duct which constituted a listed offence—forgery— to accomplish the infraction of the federal law, he had brought himself within the ambit of section (3). No transportation, transporting, use of the mails or interstate facilities was alleged to have been involved and even had it been, that fact would have been immaterial to the liability of the fugitive to be extradited.
Three submissions of counsel for the applicant should be mentioned to show that they have not been overlooked, viz.; (A) that Article 2 section (3) must be interpreted as though the word "which" in the words "in which one of the offenses listed ... is a substantial element" referred to "federal law" and not to "any offense"; (B) that Article 2 section (3) must be interpreted as though it required that the offence listed that must be "a substantial element" has to be a federal offence; (C) that Article 2 section (3) must be interpreted as though the concluding words thereof beginning with "even if' restricted the ambit of the provi sions to offences of which "transporting, transpor tation, the use of the mails or interstate facilities" is or are elements.
We have not been able to accept any of these submissions as representing a fair reading of Article 2 section (3) as phrased. In our opinion, the decision of the Extradition Judge that the offences charged were extraditable discloses no error in law; since we are of the opinion that the offences charged in the indictment against the fugitive were ones for which the Treaty authorized extradition, the application will be dismissed.
APPENDIX
EVEN IF Although; notwithstanding.
Funk & Wagnalls' STANDARD COMPREHENSIVE INTERNA -
TIONAL DICTIONARY
EVEN C. Attached to a hypothetical clause....
For such evil bruits Mr. Touchwood cared not, even if he happened to hear of them....
Even if there were no other evidence, we should still be justified in assuming, etc.
OXFORD ENGLISH DICTIONARY
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