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. 
 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.