T-2423-81
Socialist Federal Republic of Yugoslavia (Appli-
cant)
v.
Svetislav Rajovic (Respondent)
Trial Division, Mahoney J.—Toronto, May 11;
Ottawa, May 13, 1981.
Prerogative writs — Certiorari — Extradition — Applica
tion by applicant for writ of certiorari to quash order of
County Court Judge (sitting as Extradition Judge) granting
bail to the respondent — Application by respondent for writ of
certiorari to quash warrant for his apprehension issued by
another County Court Judge — Respondent convicted in
Yugoslavia of fraud and rape — Whether an extradition judge
has jurisdiction to grant bail — Whether respondent a "con-
victed" person or an "accused person" within the meaning of s.
2 of Extradition Act — Whether fraud extraditable offence —
Applications dismissed — Extradition Act, R.S.C. 1970, c.
E-21, ss. 2, 13, 14, 18.
Re Di Stefano (1977) 30 C.C.C. (2d) 310, referred to.
APPLICATIONS.
COUNSEL:
C. A. Amerasinghe and C. Kobernick for
applicant.
G. P. Johnstone and G. Shortliffe for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Gregory P. Johnstone, Toronto, for respond
ent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant, represented by the
Attorney General of Canada, seeks certiorari to
quash an order of an Ontario County Court Judge,
sitting as an Extradition Judge, granting bail to
the respondent. It is argued that an extradition
judge has no jurisdiction to grant bail. The appli
cant also seeks to quash a second order of the
Judge whereby he assumed jurisdiction to review
the terms of his first order although, in the result,
he declined to vary it. It is argued that, even if he
had jurisdiction to grant bail, he became functus
officio when he did so. The second matter was not
pressed in argument and, in the result, I do not
intend to deal with it.
The respondent, in an application heard
immediately after the foregoing, seeks certiorari to
quash the warrant for his apprehension issued by
another Ontario County Court Judge. The warrant
of apprehension states that the respondent is a
person who "has been convicted of the crimes of
fraud and rape". It is argued that, on the face of
the material before the Judge, firstly, the fraud of
which he was convicted was not an extraditable
offence and, secondly, since he was convicted of
both offences in absentia, he is not, in law, a
person who has been convicted but rather a person
who has been accused of the offences.
I shall deal with both applications in these rea
sons and with the respondent's application first
since some factual background is necessary for its
understanding. The respondent first came to
Canada in 1968. He practised his profession in
South Africa between 1971 and 1973. He then
returned to Canada and subsequently became a
Canadian citizen and also qualified to practise his
profession in Ontario. He presently practises his
profession and has business interests of some sub
stance as evidenced by the requirement, as a condi
tion of bail, that he assign $400,000 of assets to
the Crown.
The respondent was initially tried in Yugoslavia
on both charges at a hearing on May 23, 1968.
The record indicates that he was present with
counsel. He was convicted and sentenced on each
charge to "two years of severe imprisonment". A
second trial on the same charges was conducted by
the same Court on February 11, 1974. He was not
present but there was present "counsel ex officio
for the indicted". He was again convicted of both
charges and sentenced "to a cumulative augment
ed penalty" of 3 years 6 months "of severe im
prisonment". I have been unable to find, in the
material before me, the reason for the second trial
being held. The demand for surrender, made by
the applicant on Canada, does state that the
respondent will be tried again "as the convicted
has been tried in his absence".
The fraud of which he was convicted involved
obtaining living accommodation for his personal
use. Item 12 of Article II of the Treaty between
Canada and Yugoslavia provides that the follow
ing is an extraditable offence:
Fraud by a bailee, banker, agent, factor, trustee, or director or
member or public officer of any company, made criminal by
any law for the time being in force.
The respondent argues that it was apparent on the
face of the material before the Judge who made
the warrant that, in obtaining personal living
accommodation, he was not acting as bailee,
banker, agent, broker, trustee or director, member
or officer of a company and that, therefore, as a
matter of law, the fraud of which he was convicted
is clearly not an extraditable offence and there was
no jurisdiction to issue the warrant.
As to the second attack on the warrant to
apprehend, the Extradition Act' provides:
2. In this Act
"conviction" or "convicted" does not include the case of a
condemnation under foreign law by reason of contumacy; but
"accused person" includes a person so condemned;
It is submitted that, on the face of the record, the
respondent's convictions were condemnations by
reasons of contumacy and that the Judge was
without jurisdiction to issue a warrant for his
apprehension as a "convicted" person rather than
an "accused person". The distinction is meaning
ful. Under section 18, to obtain a warrant of
committal, the applicant must prove that the re
spondent, if a convicted person, was convicted of
an extraditable offence but, if an accused person,
that the evidence of the extraditable offence, if
committed in Canada, would, under Canadian law,
justify his committal for trial. The task of extradit
ing a convicted fugitive would appear less onerous
than that of extraditing an accused fugitive.
1 R.S.C. 1970, c. E-21.
The respondent's application is premature. The
points raised involve findings of fact and law which
the extradition judge may be asked to deal with
when he considers whether or not to issue a war
rant of committal under section 18 of the Act.
Section 14 expressly requires the extradition judge,
at that hearing, to receive evidence tendered by the
applicant. That, obviously, contemplates evidence
in addition to that tendered to lead the warrant to
apprehend.
I do not intend to review all of the arguments
presented for and against the motion to quash the
bail order. I have every expectation and, in the
circumstances, hope that an authoritative determi
nation of the question may be forthcoming. Suffice
it to say, there are numerous decisions going both
ways, but none are binding on this Court. At the
moment it appears, for example, that extradition
judges in Ontario are of the view that they have
the jurisdiction in issue, 2 while those in Quebec are
of the contrary view. 3 Some superior court judges,
sitting as extradition judges, are of the view that
they have inherent jurisdiction to grant bail 4 while
others obviously feel that they have not, 5 and
county and district judges clearly have not. It
would be odd if a fugitive were entitled to bail
because he appeared before a superior court judge
but not if before a county court judge. I suspect
fugitives have little input into the selection of their
extradition judges.
The Extradition Act provides:
13. The fugitive shall be brought before a judge, who shall,
subject to this Part, hear the case, in the same manner, as
nearly as may be, as if the fugitive was brought before a justice
of the peace, charged with an indictable offence committed in
Canada. [Emphasis added.]
The Canadian Bill of Rights 6 requires:
2 Re Armstrong and State of Wisconsin (1978) 37 C.C.C.
(2d) 397.
3 Re Cotroni. Unreported decision of Hugessen A.C.J., ren
dered November 21, 1973 (S.C. Que.).
4 Re Di Stefano (1977) 30 C.C.C. (2d) 310.
5 Re Cotroni, supra.
6 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III].
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(f) deprive a person charged with a criminal offence of the
right to be presumed innocent until proved guilty according
to law in a fair and public hearing by an independent and
impartial tribunal, or of the right to reasonable bail without
just cause; ... [The emphasis is mine.]
The words of section 13 of the Extradition Act
are apt to bring a fugitive within the terms of
paragraph 2(f) of the Canadian Bill of Rights
unless one adopts the view, as in Re Cotroni, that:
s. 13 refers exclusively to the extradition hearing, that is,
the way in which the judge conducts the hearing.
Be that as it may, in Re Di Stefano, Mr. Justice
Morrow of the Supreme Court of the Northwest
Territories, sitting as an Extradition Judge, held
[at page 312] that paragraph 2(f) is
a guarantee of the right to reasonable bail in the absence of any
express declaration to the contrary ....
There is no express declaration to the contrary in
the Extradition Act. That conclusion did not
depend on section 13 being operative in the cir
cumstances and I accept it.
Both applications will be dismissed without
costs. A copy of these reasons will be ordered to be
included in the record of the respondent's
application.
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