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T-5254-81
Government of the Republic of Italy (Applicant) v.
The Honourable Mr. Justice Jean-Guy Boilard and Francesco Piperno (Respondents)
Trial Division, Addy J.—Montreal, November 2; Ottawa, November 4, 1981.
Prerogative writs — Mandamus and certiorari — Extradi tion — Application for a writ of mandamus, with a writ of certiorari in aid thereof ordering the respondent Boilard J. to admit as evidence depositions taken in Italy — Government of Italy seeks to extradite respondent Piperno — Decision of the Court was rendered in the course of the hearing in accordance with its duty to decide questions of the admissibility of evidence in accordance with Canadian legislation — Canadian law would not permit a person to be tried in Canada for a similar offence committed here based on mere affirmations — Italian law provides for affidavits and solemn affirmations — Application dismissed — Extradition Act, R.S.C. 1970, c. E-21, ss. 13, 16 — Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 14(1), 15.
APPLICATION. COUNSEL:
Joseph Nuss, Q.C. for applicant. Michel Denis for respondents.
SOLICITORS:
Ahern, Nuss & Drymer, Montreal, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
ADDY J.: This motion was made (pursuant to section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10) for the issuance of a writ of mandamus with a writ of certiorari in aid thereof, addressed to the Honourable Mr. Justice Jean- Guy Boilard, ordering him to admit as evidence the depositions taken in Italy and contained in the documents filed before him on October 21, 1981 bearing for identification purposes, Exhibit Nos. VD-1 (VD-1a); VD-2 (VD-2a); VD-4 (VD-4a); and VD-5 (VD-5a); and for a request that the Court quash and vacate the judgment rendered by
the Honourable Mr. Justice Jean-Guy Boilard on October 22, 1981, in which he refused to admit in evidence the depositions contained in the said exhibits, in the matter of:
The application by the Government of the Republic of Italy for the extradition of Francesco Piperno from Canada to Italy. (Montreal District No. 500-27-14588-810 and No. 38-054- 816.)
REASONS
(Summary of reasons given orally at the close of the hearing in Montreal on Monday, November 2, 1981. Order dismissing the application issued on the same day.)
This application cannot be allowed for two rea sons: firstly, the very nature of the application having regard to the pertinent circumstances; secondly, the subject-matter.
1. Nature and circumstances of the application:
The application is based exclusively on a ques tion of the admissibility of evidence; there is no suggestion of an excess of jurisdiction, of a refusal to exercise jurisdiction, of a substantive defect in the pleadings before a lower court, of a denial of natural justice or of a refusal to hear one of the parties to the case. The decision of the Court was rendered in the course of the hearing strictly in accordance with its duty to decide questions of the admissibility of evidence in accordance with the provisions of sections 13 and 16 of the Extradition Act, R.S.C. 1970, c. E-21, and section 15 of the Canada Evidence Act, R.S.C. 1970, c. E-10. The hearing before the Court is not over, and a remedy exists in law (namely, section 28 of the Federal Court Act) to rectify this decision in the event that it is incorrect and would affect the final decision.
2. The subject-matter:
I accept and approve the reasons stated by Boilard J. and the precedents and legislation cited by him, subject however to the following observa tions with regard to R. v. Governor of Pentonville Prison, ex parte Singh'.
I would add:
(i) With regard to Singh, it has no application in Canada in so far as it may be regarded as
I [1981] 3 All E.R. 23.
supporting the admissibility in Canadian courts of any evidence similar to that which formed the subject-matter of the order by Bollard J., submit ted in the course of a criminal proceeding (see section 13 of the Extradition Act).
(ii) I accept as a general principle that a treaty should be given a liberal and not a strict interpre tation in order to facilitate the full application of the agreement between the two countries. How ever, as an exception to this general rule, any provision in a treaty affecting the freedom of the individual in Canada or relating to criminal or penal law, must invariably be strictly interpreted in favour of the individual and of his rights, and not in favour of the signatory countries, since all Canadian statutes must be so interpreted in such circumstances.
(iii) In applying section 14 of the Extradition Act account should be taken of the provisions of subsection 15(1) of the Canada Evidence Act, which stipulates that a solemn affirmation can only be used in evidence in a criminal proceeding in place of sworn testimony when the witness refuses to be sworn or states that he entertains conscientious objections to being sworn.
(iv) In the case of a charge before a justice of the peace, the testimony must be sworn or ren dered pursuant to a solemn affirmation in accord ance with the provisions of subsection 14(1) of the Canada Evidence Act. It would be inconceivable that, in a case which must be heard "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" (see section 13 of the Extradition Act), the Court could by an executory judgment based on affirmations which were neither sworn to nor made pursuant to a solemn affirmation in accordance with section 16 of the Extradition Act, deprive a person of his freedom and authorize his arrest and transfer abroad to answer a criminal charge, while a justice of the peace in Canada is not entitled, on the basis of simple affirmations, to require that same person to be tried in Canada for a similar offence commit ted in this country.
(v) Article 449 of the Italian Code of Procedure provides for the use of affidavits. It also provides for the use of solemn affirmations. Affidavits could probably have been obtained and duly authorized for use in evidence here in Canada before the Extradition Court, even though such documents were not obtained as part of the origi nal hearing before the magistrate in Italy.
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