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A-292-79
Robert James Watson (Applicant)
v.
The United States of America (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.— Vancouver, December 9; Ottawa, December 22, 1980.
Judicial review — Extradition — Application to review decision of Judge to issue warrant of committal re the extradi tion of applicant to the U.S. — Documentary evidence not admissible under ss. 16 and 17 of Extradition Act — Whether it is admissible pursuant to s. 3 of the Act and Art. 10(2) of the Canada-U.S. Treaty on Extradition — Extradition Act, R.S.C. 1970, c. E-21, ss. 3, 16, 17 — Treaty on Extradition between Canada and the United States, Art. 10(2) — Interpre tation Act, R.S.C. 1970, c. 1-23, s. 10 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside the decision of an Extradition Judge to issue a warrant of commit tal for the extradition of the applicant to the United States. Since it is common ground that the documentary evidence submitted at the hearing was not admissible under sections 16 and 17 of the Extradition Act, the sole question is whether it was admissible pursuant to section 3 of the Act and Article 10(2) of the Canada-U.S. Treaty of Extradition. Applicant argues that section 3 cannot apply because it refers only to the extradition agreements in existence at the time of the enact ment of the statute and because there is no inconsistency between sections 16 and 17 of the Act and Article 10(2) of the Treaty. He also submits that in any event the documents had been wrongly admitted in evidence because they do not meet the requirements of Article 10(2).
Held, the application is allowed. The first argument based on the present tense ("there is") in section 3 of the Act is ill-founded. It ignores section 10 of the Interpretation Act according to which the law shall be considered as always speaking. The second argument also fails. It cannot be asserted that there is no conflict since sections 16 and 17 of the Act and Article 10(2) of the Treaty prescribe different conditions respecting the admissibility of documentary evidence. The third argument is allowed. The certificates accompanying the three Court documents (Exhibit A) do not constitute an authentica tion of those documents by an officer of the Department of State of the U.S. A person authenticates a document when it certifies its genuineness. This does not appear to have been done by such an officer. The same applies to Exhibit B.
APPLICATION for judicial review. COUNSEL:
D. G. McCrea for applicant.
B. T. Sedgwick for respondent.
SOLICITORS:
Rosenbloom, McCrea & Leggatt, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This section 28 application is direct ed against the decision of a judge under the Extradition Act (R.S.C. 1970, c. E-21) to issue a warrant of committal for the extradition of the applicant to the United States of America.
The applicant's only ground of attack relates to the admission in evidence of certain documents. The applicant had argued at the extradition hear ing that those documents were not admissible because they were not authenticated as required by sections 16 and 17 of the Extradition Act.' The Extradition Judge did not express any opinion on this particular ground of objection. He neverthe less admitted the documents because, in his view, they complied with the requirements of Article
' Those two sections read 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 statements 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.
17. The papers referred to in section 16 shall be deemed duly authenticated if authenticated in the manner provided, for the time being, by law, or if
(a) the warrant purports to be signed by, or the certificate purports to be certified by, or the depositions or state ments, or the copies thereof, purport to be certified to be the originals or true copies, by a judge, magistrate or officer of the foreign state; and
(b) the papers are authenticated by the oath or affirmation of some witness, or by being sealed with the official seal of the Minister of Justice, or some other minister of the foreign state, or of a colony, dependency or constituent part of the foreign state, of which seal the judge shall take judicial notice without proof.
10(2) of the Treaty on Extradition between Canada and the United States of American and were admissible in evidence by virtue of section 3 of the Extradition Act'.
It is common ground that the documentary evi dence admitted by the Extradition Judge was not admissible under sections 16 and 17 of the Act. The sole question to be answered, therefore, is whether it was admissible pursuant to section 3 of the Act and Article 10(2) of the Treaty.
Counsel for the applicant submitted that it was not. In support of that submission he put forward three arguments.
First, he said that section 3 of the Act has no application in this case because the Treaty with the United States was entered into after the coming into force of the Act. He stressed that section 3 applies "in the case of any foreign state with which there is an extradition arrange ment ...". [Emphasis added.] According to coun sel, the use of the present tense ("there is") in that section indicates that it refers only to the extradi tion agreements that were in existence at the time of the enactment of the statute.
That argument is obviously ill-founded. It ignores section 10 of the Interpretation Act, R.S.C. 1970, c. I-23, according to which "the law shall be considered as always speaking, and when ever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise ...".
2 Article 10(2) of the Treaty reads as follows:
ARTICLE 10
(2) The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when, in the case of a request emanating from Canada, they are authenticated by an officer of the Department of Justice of Canada and are certified by the principal diplomatic or consular officer of the United States in Canada, or when, in the case of a request emanating from the United States, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomat ic or consular officer of Canada in the United States.
3 That section reads:
3. In the case of any foreign state with which there is an extradition arrangement, this Part applies during the con tinuance 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 applicant also argued that section 3 has no application in this case because, in his view, there is no inconsistency between sections 16 and 17 of the Act and Article 10(2) of the Treaty. This argument must also be rejected. Both the Act (in sections 16 and 17) and the Treaty (in Article 10(2)) prescribe conditions on which documentary evidence may be admitted in extradition proceed ings. As the conditions prescribed by the Treaty and the Act are different, I do not see how it can be asserted that there is no conflict between the Treaty and the Act.
The applicant's final submission was that, in any event, the documents had been wrongly admitted in evidence because they do not meet the require ments of Article 10(2) of the Treaty. More pre cisely, counsel for the applicant argued that those documents do not appear to be authenticated by an officer of the Department of State of the United States. At the end of the hearing, counsel for the respondent conceded the validity of that argument and, in my view, not without reasons. The documents here in question are identified as Exhibits A and B. Exhibit A is a bundle of three documents and three certificates. The three docu ments appear to be copies of three court docu ments from the United States District Court for the District of Idaho; the first certificate is signed by a judge of that Court and certifies the three documents to be true copies of court documents; the second certificate, under the seal of the Department of Justice of the United States, certi fies that the judge who signed the first certificate is really a judge of the United States District Court for the District of Idaho; finally, the third certificate, signed by an officer of the Department of State, merely certifies that the second certifi cate "is under the seal of the Department of Justice of the United States of America, and that such seal is entitled to full faith and credit." These certificates, in my view, do not constitute an authentication of the three court documents by an officer of the Department of State. In my opinion, a person authenticates a document when it certi fies its genuineness; and, in this case, this does not appear to have been done by an officer of the Department of State as required by Article 10(2) of the Treaty. The same remarks apply to the document that was admitted as Exhibit B.
For these reasons, I would allow this applica tion, set aside the decision under attack and refer the matter back to the Extradition Judge for deci sion on the basis that Exhibits A and B are not admissible in evidence under Article 10(2) of the Treaty.
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HEALD J.: I concur.
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URIE J.: I concur.
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