Canada v. Schmidt

La Forest J.‑‑The appellant, Helen Susan Schmidt, resists extradition to the United States on a charge of child stealing contrary to the law of the State of Ohio on the ground that she was acquitted in respect of the same activity of a charge of kidnapping under federal law of the United States. This she claims violates her rights under ss. 7 and 11(h) of the Canadian Charter of Rights and Freedoms as well as the provisions of the Canada‑United States extradition treaty; see Canada Treaty Series 1976, No. 3. This defence was rejected by the extradition judge, the judge who reviewed the case on habeas corpus and the Ontario Court of Appeal. From the latter judgment, she was given leave to appeal to this Court.

Facts

On August 28, 1980, Schmidt, with the assistance of her son, Charles Gress, and a friend of his, Paul Hildebrand, is alleged to have abducted a two‑year old girl, Denise Gravely, from a Cleveland sidewalk. Schmidt took the child with her to New York State, where she kept her for almost two years, raising her as her daughter. In the interim, the child's father committed suicide, allegedly as a result of his inability to discover his child's whereabouts.

On March 22, 1982, Schmidt attended a family reunion in Buffalo, New York, accompanied by Denise. Another son of hers, Donald Gress, was also at the reunion. By sheer coincidence, Donald Gress not only came from Cleveland but knew the child's parents and had helped to search for her after her abduction. Following the reunion, he told Cleveland police of Denise's whereabouts and she was returned to her mother on March 26, 1982.

Following her arrest, Schmidt was charged with the federal offence of kidnapping and the state offence of child‑stealing. Grand juries returned indictments on both charges, on March 29, 1982 on the state charge and on March 31, 1982 on the federal charge.

The two charges have some similarities but they also have important differences. The federal offence under the United States Code, Title 18 reads:

§ 1201. Kidnapping

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:

(1) the person is willfully transported in interstate or foreign commerce;

(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;

(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 101(36) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301(36)); or

(4) the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title,

shall be punished by imprisonment for any term of years or for life.

The offence under the Revised Code of Ohio reads:

§ 2905.04‑‑Child Stealing

(A) No person, by any means, and with purpose to withhold a child under the age of fourteen or mentally incompetent from the legal custody of his parent, guardian or custodian, shall remove such child from the place where he is found.

(B) It is an affirmative defense to a charge under this section that the actor reasonably believed that his conduct was necessary to preserve the child's health or welfare.

On July 26, 1982, Schmidt was tried on the federal charge by a judge and jury. She admitted the abduction, but contended that she had taken part in it in the belief that Denise was the illegitimate daughter of her son Donald Gress, and that she had been abandoned by her father and was living with her natural mother "in a home of ill repute". On July 30, 1982, the jury found Schmidt not guilty and she was acquitted.

On August 6, 1982, while the state offence of child‑stealing was still pending, Schmidt, who is a Canadian citizen, left the United States and came to Canada. She was arrested in Kirkland Lake, Ontario on August 30, 1982 and extradition proceedings against her were begun pursuant to the Canada‑United States extradition treaty.

I should add that Schmidt's counsel argues that if Schmidt is returned to Ohio, she will not have the benefit of raising her previous federal prosecution in bar of her prosecution under state law. While under the Fifth Amendment of the Constitution of the United States, a person is protected from double jeopardy against federal prosecutions, that provision does not apply to the states although at some point the cruelty of harassment by multiple prosecutions by a state would violate the due process clause of the Fourteenth Amendment: see Bartkus v. Illinois, 359 U.S. 121 (1959). It is clear, however, that the Fourteenth Amendment does not automatically protect an individual from being prosecuted under a state law although the accused was earlier tried and acquitted of an offence under federal law. Thus in Bartkus v. Illinois, supra, the accused was tried and acquitted under a federal law of robbing a federally insured bank. He was later tried and convicted on substantially the same evidence in an Illinois state court for violating an Illinois robbery statute. On an action to test the constitutionality of the second prosecution, the Supreme Court of the United States held that the Illinois prosecution did not violate the due process clause.

The Courts Below

At the extradition hearing, Collins Dist. Ct. J., having found that the requirements of the Extradition Act, R.S.C. 1970, c. E‑21, had been met, considered whether s. 11(h) of the Charter would be violated by an order committing Schmidt to prison to await the Government's decision on the request for her surrender. He held, however, that the Charter only applied within the boundaries of Canada. He also noted that it had already been held in Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385 (Ont. C.A.) that the extradition process itself was a reasonable limit on the rights and freedoms guaranteed by the Charter . Finally, he refused to consider the common law plea of autrefois acquit or the American doctrine of double jeopardy on the ground that they were not within the scope of his jurisdiction as an extradition judge. Accordingly, he ordered Schmidt's committal for surrender to the United States.

In a proceeding on a writ of habeas corpus with certiorari in aid before Steele J. (1983), 41 O.R. (2d) 399, 147 D.L.R. (3d) 616, 4 C.C.C. (3d) 409, 4 C.R.R. 323, Schmidt's principal argument was that she should not have been committed because such committal violated the principle of autrefois acquit, either under the Charter or at common law.

Steele J. held that at common law and under the Extradition Act, Schmidt was not entitled to plead autrefois acquit. Section 3 of the Act, he noted, incorporates the extradition treaty, article 2 of which provides that extradition is to be ordered for certain named offences that are offences in both the requesting and the requested State. He pointed out that no defences are provided for. In his opinion, the fact that a defence might be raised to a charge in Canada is not a valid reason for refusing extradition. Indeed, since article 4(1)(i) of the treaty provides that extradition is not to be ordered where a fugitive has been previously tried in the requested state, the raising of autrefois acquit or convict where the fugitive has been tried in the requesting state is implicitly ruled out. In any event, federal and state charges in this case differed from one another and the defence, therefore, had no application.

As to the Charter , Rauca, supra, having already determined that extradition was a reasonable infringement on the right to remain in Canada, any argument that specific aspects of extradition are contrary to the Charter were, in Steele J.'s opinion, ruled out. "[I]f the Extradition Act is a proper infringement upon the rights of the individual to remain in Canada, then I do not see how the details of whatever rights there may be within the Extradition Act can be overridden by the provisions of the Charter ."

Finally, he held that because an extradition judge has the same powers as a magistrate on a preliminary inquiry, autrefois acquit, as a defence on the merits, could only be raised at trial, and consequently could not properly be raised before an extradition judge any more than before a magistrate on a preliminary inquiry.

In the Ontario Court of Appeal (1984), 44 O.R. (2d) 777, 7 D.L.R. (4th) 95, 10 C.C.C. (3d) 564, 2 O.A.C. 336, Lacourcière J.A. held that the statutory plea of autrefois acquit under s. 535 of the Criminal Code was not available at an extradition hearing. Under s. 13 of the Extradition Act, the extradition judge has the same powers as a justice at a preliminary inquiry. The powers of a justice under Part XV of the Code are statutory, and do not include the authority to entertain special pleas. The special plea of autrefois acquit could only be raised on arraignment for an indictable offence under Part XVII of the Code and not at a preliminary inquiry or an extradition hearing. Nor, he held, could a common law plea in the nature of res judicata or issue estoppel be raised. Such pleas are defences on the merits, also to be dealt with at trial.

Lacourcière J.A. held that it was possible that article 8 of the treaty, which acknowledged the right of a fugitive to all remedies and recourses provided by the law of the requested state, permitted the raising of a Charter issue. However, he did not find it necessary to decide the point since in his view, the federal and state offences in this case were not the same, and Schmidt therefore had not been acquitted of "the offence" as required by s. 11(h) of the Charter .

The appeal was, therefore, dismissed. Leave was then granted to appeal to this Court, [1984] 1 S.C.R. xiii.

Jurisdiction of this Court

Before addressing the substantive issues raised by the appellant, it is first necessary to consider an issue raised by the respondent, namely, whether this Court has jurisdiction to hear the appeal. This issue arises out of the fact that there is an apparent conflict between s. 40 of the Supreme Court Act, R.S.C. 1970, c. S‑19, as amended, and s. 719(5) of the Criminal Code, R.S.C. 1970, c. C‑34.

Taken by itself, s. 40 of the Supreme Court Act makes it clear that no appeal lies in habeas corpus proceedings in extradition matters. It reads:

40. No appeal to the Supreme Court lies under section 38 or 39 from a judgment in a criminal cause, in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge, or in proceedings for or upon a writ of habeas corpus arising out of a claim for extradition made under a treaty. [Emphasis added.]

In Re Lazier (1899), 29 S.C.R. 630, this Court held that, by virtue of the forerunner of this provision, the Court lacked jurisdiction to entertain an appeal from habeas corpus proceedings in an extradition matter. As here, the attempted appeal was from a provincial court of appeal: see also Gaynor and Greene v. United States of America (1905), 36 S.C.R. 247, at p. 249.

In 1965, however, s. 719 of the Criminal Code was enacted (S.C. 1964‑65, c. 53). It provided for appeals from decisions in proceedings involving extraordinary remedies and, in particular, under s. 719(5) from a judgment in a habeas corpus proceeding to a provincial court of appeal and thence to this Court. Section 719(5) reads:

(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.

To understand the interrelationship of the two provisions, it is essential to examine their history. When the precursor of s. 40 was passed, Parliament was then guided by a general policy of preventing prolonged litigation in criminal matters by restricting appeals. For many years Parliament made no provision for appeals from habeas corpus proceedings to provincial courts of appeal, though appeals to the Supreme Court were, in some circumstances, possible (see Supreme Court Act, R.S.C. 1952, c. 259, ss. 57 and 58). The policy appears to have been particularly marked in relation to extradition matters; see Gaynor and Greene, supra, at p. 249, and the predecessors of s. 40 of the Supreme Court Act ensured that such appeals could not be entertained in the Supreme Court either.

There were instances, however, where provincial courts of appeal overlooked the fact that there was no provision for appeal from habeas corpus hearings in extradition matters; see, for example, in Ontario, Re Low (1932), 41 O.W.N. 468, and in Quebec, Ecrement v. Séguin (1921), 39 C.C.C. 113. In Re Storgoff, [1945] S.C.R. 526, however, this Court made it clear that there was no appeal to these courts from a decision on habeas corpus, but it was only later that this ruling was applied to extradition cases: see Re Wattebled (1952), 106 C.C.C. 200 (Que. C.A.); Re Johnston and Shane (1959), 18 D.L.R. (2d) 102 (Ont. C.A.)

Over the past several decades, however, Parliamentary attitude towards criminal appeals has changed, and such appeals have been provided on a much more extended basis. The right of the Crown to appeal against an acquittal is an example. More specifically, three years after the last mentioned case, Johnston and Shane, was decided, in November 1962 a Bill was introduced in the House of Commons to provide an appeal from habeas corpus proceedings. Provisions of this Bill, as amended, now appear in s. 719 of the Criminal Code . Given that the recent cases holding that there was no appeal from habeas corpus proceedings were extradition cases, and given that habeas corpus was the only means of reviewing extradition cases, it is reasonable to assume that appeals from judgments in habeas corpus in extradition cases were intended to be comprised in s. 719.

This development was traced by the Ontario Court of Appeal in Re Federal Republic of Germany and Rauca, supra, which concluded its examination of this issue with the following passage, at p. 396:

Having regard to the history of the amendment of the Code, we think it is clear that s. 719 was intended to give a general right of appeal in habeas corpus proceedings, including proceedings upon a writ of habeas corpus arising out of a claim for extradition, and is not restricted to habeas corpus proceedings under the Criminal Code . We hold, therefore, that the appellant has the right to appeal to this court.

The Court of Appeal of British Columbia soon adopted this reasoning in Re Meier and The Queen (1983), 8 C.C.C. (3d) 210.

If one concludes that there is an appeal to a provincial court of appeal from habeas corpus in an extradition matter, one must equally conclude that a subsequent appeal may be brought to this Court because s. 719 creates an integrated scheme. In enacting this provision, Parliament obviously overlooked s. 40 of the Supreme Court Act. It must, however, be taken to have been superseded by the later provision. To the extent that there is conflict between s. 40 of the Supreme Court Act and s. 719 of the Code, then, s. 40 has been impliedly repealed. I should perhaps say that in dealing with this issue in my book Extradition To and From Canada (2nd ed. 1977), at pp. 131‑32, I did not advert to the intertwined judicial and legislative history of the two provisions.

I, therefore, hold that this Court has jurisdiction to hear this appeal.

The Non‑Charter Extradition Issues

I shall deal with the non‑Charter arguments on extradition before addressing the Charter issues. It may be useful at the outset, however, to recall precisely what extradition is. Extradition is the surrender by one state to another, on request, of persons accused or convicted of committing a crime in the state seeking the surrender. This is ordinarily done pursuant to a treaty or other arrangement between these states acting in their sovereign capacity and obviously engages their honour and good faith. A surrender under these treaties is primarily an executive act. Charter considerations and international implications apart, it is under domestic law in the discretion of the executive to surrender or not to surrender a fugitive requested by another state.

However, as Laskin J. (as he then was) noted in Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, at p. 245, concern for the liberty of the individual has not been overlooked in these rather special proceedings. That is why provision is made in the treaties and in the Extradition Act to ensure that, before the discretion to surrender can be exercised, a judicial hearing must be held for the purpose of determining whether there is such evidence of the crime alleged to have been committed in the foreign country as would, according to the law of Canada, justify his or her committal for trial if it had been committed here. If so, the judge commits the fugitive for surrender, and the executive may then exercise its discretion to surrender; if not, he or she is discharged (s. 18 of the Act). The hearing is similar to a preliminary hearing, the presiding judge being ordained by s. 13 of the Act to hear the case in the same manner, "as nearly as may be", as at a preliminary hearing for a crime committed in this country.

The hearing thus protects the individual in this country from being surrendered for trial for a crime in a foreign country unless prima facie evidence is produced that he or she has done something there that would constitute a crime mentioned in the treaty if committed here. It must be emphasized that this hearing is not a trial and no attempt should be made to make it one. The trial, when held, will be in the foreign country according to its laws for an alleged crime committed there, and it should require no demonstration that such a prosecution is wholly within the competence of that country. A judge at an extradition hearing has no jurisdiction to deal with defences that could be raised at trial unless, of course, the Act or the treaty otherwise provides.

Counsel for Schmidt argued, however, that the principle of double jeopardy is so fundamental to our criminal law that in providing that an extradition hearing should be conducted "as nearly as may be" like a preliminary hearing, Parliament must have intended to import into the extradition hearing some way of presenting defences to prevent a person from being twice prosecuted for the same offence. That, however, would seem to me to import trial procedures into the hearing, an approach that is out of keeping with extradition law generally. In domestic law, such pleas can be made at trial. In extradition matters, too, these are issues that can be raised at the trial in the foreign country. In my view, the reference to a procedure that is the same "as nearly as may be" as a preliminary hearing is intended to accommodate the differences between the two types of proceedings, such as, for example, the provisions in the treaty and the Act for presenting evidence by depositions.

This conclusion is supportable both in principle and on practical grounds. In principle, as Hagarty J. long ago reminded us, the country seeking surrender under a treaty must be trusted with the trial of offences; see Re Burley (1865), 1 C.L.J. 34 (C.L. Ch.) It should not be forgotten either that the good faith of this country in honouring its international obligations is involved.

As well, an attempt by courts to consider defences more appropriately dealt with at trial could seriously affect the efficient working of a salutary system devised by states for the mutual surrender of suspected wrongdoers. In particular, a proper determination of pleas such as autrefois acquit and res judicata presents difficult problems requiring an in‑depth knowledge of facts and law that are best dealt with at trial. This is especially so in extradition matters where it is necessary to prove the foreign law as a fact if such defences are permitted, and where only sufficient facts are presented as are necessary to justify the committal of the fugitive.

That the parties to the present treaty must have looked at the situation in this way is apparent from a treaty provision upon which counsel for Schmidt relies. Article 4(1)(i) expressly provides that extradition shall not be granted "‑‑When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested" (emphasis added). If the parties had considered that double jeopardy in the requesting state should be a valid defence at an extradition hearing, one would have thought the treaty would have referred to it since the parties evidently adverted to the issue. The truth is that the parties obviously understood the practical difficulties of providing for such a defence at the hearing, leaving it, like other trial matters, to be dealt with in the requesting country. That is what is done under most of the treaties. When states wish to provide for a defence of autrefois acquit in circumstances where the fugitive has already been tried in the requesting state, or elsewhere for that matter, they expressly provide for it; see, for example, the extradition treaty with Israel, article 4, Canada Treaty Series 1969, No. 25. I do not, therefore, accept the dicta to the contrary expressed in Atkinson v. United States of America Government, [1971] A.C. 197. I might add that I see nothing in the principle set forth in article 2 of the treaty (that the offence concerned must be a crime in both countries) that affects the foregoing reasoning.

Finally, in the course of the oral argument counsel referred to the early English case of Re Windsor (1865), 6 B. & S. 522, 122 E.R. 1288 (K.B.), where it appears to have been thought that extradition could not be granted for state crimes in the United States but, as Duff J. said in Re Collins (No. 3) (1905), 10 C.C.C. 80 (B.C.S.C.), this view was based on a misconception of the division of legislative power in the United States and has never been followed.

Section 11(h) of the Charter

The appellant's major arguments, however, relate to the Charter . Counsel submitted that the child stealing charge is substantially the same as the kidnapping charge and that consequently the appellant is protected from being tried under the child stealing charge under s. 11(h) of the Charter , which reads as follows:

11. Any person charged with an offence has the right

...

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32). Equally, though, there cannot be any doubt that the Charter does not govern the actions of a foreign country; see, for example, Spencer v. The Queen, [1985] 2 S.C.R. 278. In particular the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted.

These propositions must, I think, be kept firmly in mind in examining the right protected by s. 11(h). The right is that of a person charged with an offence not to be tried for the offence again if he or she has already been finally acquitted of the offence. The Government of Canada, to which the Charter applies, is not trying the fugitive. An extradition hearing, we saw, is not a trial. It is simply a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant the Government under its treaty obligations to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction. To repeat, s. 11(h) was not intended to be given extraterritorial application so as to govern criminal processes in another country. It was intended to govern trials conducted by the governments of this country mentioned in s. 32. Here no trial is being conducted by the Government of Canada. If a trial is to be held, it will be conducted by a foreign government in a foreign country for an offence under its laws.

Fundamentally, what the appellant seeks to do is to restructure the extradition hearing (which is simply one to determine a condition precedent to the executive's power to surrender, i.e., whether there is a prima facie case that an alleged extradition crime was committed) into a quite different proceeding to determine whether the foreign trial meets the standards of a trial conducted in this country. I agree with the extradition judge, Collins Dist. Ct. J., that he had no jurisdiction to do this.

This approach is supported by the whole structure of s. 11. Not only is a fugitive at an extradition hearing not being charged with an offence, certainly not by the Government of Canada, several of the rights of a "person charged with an offence" can simply have no application to extradition. These include the right to be presumed innocent (s. 11(d)) and the right to a jury trial (s. 11(f)), both of which do not exist in a number of countries with which we have extradition treaties. How could Canada surrender fugitives to those countries to be tried there if such issues could be raised at an extradition hearing? Nor can these provisions be isolated. To say that some provisions of s. 11 apply to extradition hearings, while others do not, involves giving varying meanings to "any person charged with an offence" in the opening words of the section. In my view, Tallis J.A. was correct in saying in R. v. Heit (1984), 11 C.C.C. (3d) 97 (Sask. C.A.), at p. 100, that the expression must have a constant meaning throughout, one that harmonizes with the various paragraphs of the section.

Briefly stated, I think s. 11 relates to charges laid by the governments referred to in s. 32 of the Charter . An extradition hearing does not fall within that description. It is interesting that the courts of the United States have arrived at a similar result under their constitution. The Fifth Amendment right not "to be twice put in jeopardy", has been held to be available only in the United States: see Re Ryan, 360 F. Supp. 270 (E.D. N.Y. 1973).

I would not, however, wish to be interpreted as saying that some of the interests involved in s. 11, such as the right to bail (s. 11(e)), are not similarly protected at an extradition hearing under other provisions of the Charter ; consider the interplay between s. 7 (the right to liberty) and s. 15 (equality before the law).

I am, therefore, of the view that s. 11(h) of the Charter does not apply to an extradition hearing.

Section 7 of the Charter

As will be evident from what I have already said, I am far from thinking that the Charter has no application to extradition. The surrender of a person to a foreign country may obviously affect a number of Charter rights. In Rauca, supra, for example, the Ontario Court of Appeal recognized that extradition intruded on a citizen's right under s. 6 to remain in Canada, although it also found that the beneficial aspects of the procedure in preventing malefactors from evading justice, a procedure widely adopted all over the world, were sufficient to sustain it as a reasonable limit under s. 1 of the Charter . Section 6 was not raised in this case, though Schmidt is a Canadian citizen, no doubt because her counsel believed, as I do, that it was properly disposed of in the Rauca case. However, it does not follow from the fact that the procedure is generally justifiable that the manner in which the procedures are conducted in Canada and the conditions under which a fugitive is surrendered can never invite Charter scrutiny. The pre‑eminence of the Constitution must be recognized; the treaty, the extradition hearing in this country and the exercise of the executive discretion to surrender a fugitive must all conform to the requirements of the Charter , including the principles of fundamental justice.

No issue was raised that Canadian officials did anything improper in the conduct of the proceedings. Nor was any objection raised in this Court about the nature of the extradition procedure itself, the objection raised below that the fugitive offender had a right under s. 7 of the Charter to cross‑examine deponents on affidavits submitted in support of the extradition application having, in my view, rightly been abandoned.

What is squarely in issue here is whether the surrender of a fugitive by the Government of Canada to the United States for the purpose of having her tried for a state crime which bears some similarity to a federal crime for which she has already been tried and acquitted in respect of the same transaction violates s. 7 of the Charter , which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In so far as any general objection might be made that extradition interferes with the right to life, liberty and security of the person is concerned, such objection would be met by considerations similar to those adopted in Rauca in respect of s. 6 of the Charter . The real question is whether the fugitive in the circumstances of this case would, by virtue of her proposed extradition, be deprived of this right in a manner that did not conform to the principles of fundamental justice.

I should at the outset say that the surrender of a fugitive to a foreign country is subject to Charter scrutiny notwithstanding that such surrender primarily involves the exercise of executive discretion. In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, Dickson J. (now C.J.) made it clear that "the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter " (p. 455) and that even "disputes of a political or foreign policy nature may be properly cognizable by the courts" (p. 459); see also Wilson J. at p. 464.

I have no doubt either that in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances. To make the point, I need only refer to a case that arose before the European Commission on Human Rights, Altun v. Germany (1983), 5 E.H.R.R. 611, where it was established that prosecution in the requesting country might involve the infliction of torture. Situations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7. I might say, however, that in most cases, at least, judicial intervention should await the exercise of executive discretion. For the decision to surrender is that of the executive authorities, not the courts, and it should not be lightly assumed that they will overlook their duty to obey constitutional norms by surrendering an individual to a foreign country under circumstances where doing so would be fundamentally unjust.

I hasten to add, however, that I see nothing unjust in surrendering to a foreign country a person accused of having committed a crime there for trial in the ordinary way in accordance with the system for the administration of justice prevailing in that country simply because that system is substantially different from ours with different checks and balances. The judicial process in a foreign country must not be subjected to finicky evaluations against the rules governing the legal process in this country. A judicial system is not, for example, fundamentally unjust‑‑indeed it may in its practical workings be as just as ours‑‑because it functions on the basis of an investigatory system without a presumption of innocence or, generally, because its procedural or evidentiary safeguards have none of the rigours of our system.

What has to be determined is whether or not, in the particular circumstances of the case, surrender of a fugitive for a trial offends against the basic demands of justice. In determining that issue, the courts must begin with the notion that the executive must first have determined that the general system for the administration of justice in the foreign country sufficiently corresponds to our concepts of justice to warrant entering into the treaty in the first place, and must have recognized that it too has a duty to ensure that its actions comply with constitutional standards. Blind judicial deference to executive judgment cannot, of course, be expected. The courts have the duty to uphold the Constitution. Nonetheless, this is an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance.

It is not beside the point to observe that any other approach would seriously impair the effective functioning of a salutary system for preventing criminals from evading the demands of justice in one country by escaping to another. In a world where modern communications make international and transnational criminal activity and evasion ever easier, no demonstration is required of the need for a reasonably effective system for the surrender of fugitives from one country to another untrammelled by excessive technicality or fastidious demands that foreign systems comply with our constitutional standards. A decision to surrender a fugitive for trial in a foreign country cannot be faulted as fundamentally unjust because the operation of the foreign law in the particular circumstances has not been subjected to scrutiny to see if it will conform to the standards of our system of justice.

I would add that the lessons of history should not be overlooked. Sir Edward Clarke instructs us that in the early 19th century the English judges, by strict and narrow interpretation, almost completely nullified the operation of the few extradition treaties then in existence: see A Treatise Upon the Law of Extradition (4th ed. 1903), c. V. Following the enactment of the British Extradition Act, 1870 (U.K.), 33 & 34 Vict., c. 52, upon which ours is modelled, this approach was reversed. The present system of extradition works because courts give the treaties a fair and liberal interpretation with a view to fulfilling Canada's obligations, reducing the technicalities of criminal law to a minimum and trusting the courts in the foreign country to give the fugitive a fair trial, including such matters as giving proper weight to the evidence and adequate consideration of available defences and the dictates of due process generally.

That the approach I have suggested is not unreasonable is evident from the experience of the United States, with its rather similar constitution. The application of that country's experience, it is true, must be viewed in light of the "political question" doctrine under which wide judicial deference is accorded to certain executive decisions, including those in the field of foreign relations, an issue not yet resolved in this country although it has been the subject of some discussion in this Court; see the remarks of Wilson J. in Operation Dismantle Inc., supra, at p. 464. However, the courts of that country, while recognizing the pre‑eminent role of the executive in this area, have noted that all branches of government are subject to the supremacy of the Constitution and that the judiciary may have a useful role to play: see Holmes v. Laird, 459 F.2d 1211 (D.C. Cir. 1972), certiorari denied 409 U.S. 869. In particular, they have stated that an extradition hearing must conform to the requirements of due process: see Gallina v. Fraser, 177 F. Supp. 856 (D. Conn. 1959), aff'd 278 F.2d 77 (2d Cir. 1960), certiorari denied 364 U.S. 851.

It is clear, however, that the rights guaranteed by the United States Constitution are not to be exported to other countries, even where American citizens are involved. In the leading case of Neely v. Henkel (No. 1), 180 U.S. 109 (1901), the United States Supreme Court was faced with the task of reconciling its laws governing extradition to Cuba with the rights guaranteed by the Constitution of the United States. Harlan J., giving the judgment of the court, had this to say at p. 122:

It is contended that the act of June 6, 1900, is unconstitutional and void in that it does not secure to the accused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States. Allusion is here made to the provisions of the Federal Constitution relating to the writ of habeas corpus bills of attainder, ex post facto laws, trial by jury for crimes, and generally to the fundamental guarantees of life, liberty and property embodied in that instrument. The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country.

At page 123, he continued:

In connection with the above proposition, we are reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.

This course has been followed ever since. In Gallina v. Fraser, supra, for example, the Federal Court of Appeal (2d Cir.) refused to give effect to an objection that returning to Italy a fugitive who had been convicted in absentia in accordance with that country's traditional process violated the due process clause. Again, in Holmes v. Laird, supra, that court also refused to countenance objections to a request to surrender an accused based on several constitutional grounds, including speedy trial and representation by effective counsel of his choice.

In the latter case, the court underlined the practical problems associated with adopting another course. It had this to say at p. 1218:

It is evident that if appellants' point were to be entertained, an in‑depth examination of the West German trial record would become an indispensable forerunner of any endeavor to resolve their claims on the merits. We need not pause to reflect on the difficulties ‑‑practical or otherwise‑‑of such an undertaking for appellants' contention that the Constitution has the effect asserted is doomed, we think, by the Supreme Court's holding in Neely v. Henkel.

The present case reveals that such fears are not unrealistic. As we have seen, the courts below engaged in a thorough examination of the trial record in the federal prosecution for kidnapping and detailed arguments from that record were made in this Court. It requires little imagination to conclude that if against a background of widely divergent systems of law such a procedure were introduced into any significant number of extradition cases, an effective system of extradition could well be jeopardized. Judicial intervention in this area must, therefore, as I have stated, be restricted to compelling situations bearing in mind that the executive has the first responsibility in this area and that judicial intervention conveys in Lord Russell C.J.'s phrase in Re Arton, [1896] 1 Q.B. 108, at p. 115, "a reflection of the gravest possible kind, not only upon the motive and actions of the responsible Government, but also impliedly upon the judicial authorities of a neighbouring and friendly Power".

Though the arguments made on behalf of Schmidt were largely based on s. 11(h) of the Charter , those arguments may also be framed in terms of s. 7, and indeed reliance was placed on that provision as well. Counsel contended that her extradition would deprive her of her right to liberty and security with respect to a matter for which she could not be brought to trial in Canada. As I noted previously, I do not think our constitutional standards can be imposed on other countries. A person who is accused of violating the laws of a foreign country within its jurisdiction cannot, it seems to me, rightly complain that she has been deprived of her liberty and security in a manner inconsistent with the principles of fundamental justice simply because she is to be surrendered to that country for trial in accordance with its traditional procedures, even though those procedures may not meet the specific constitutional requirements for trial in this country. In particular, I do not think we should attempt to export our particular version of the technical pleas of autrefois acquit and res judicata to a foreign country. Still less do I think that these should be raised at an extradition hearing, where to rely on such pleas, in a setting where foreign law must be proved and where facts may have to be established under procedural and evidentiary rules different from those of the requesting state, invites importing into extradition proceedings factors which the experience of over a hundred years establishes to be unwise.

I find it unnecessary, then, to explore whether the foreign courts should, on such evidence as we now have, give effect to the pleas of autrefois acquit and res judicata. This is not to say that the underlying considerations involved in these pleas are to be ignored in considering whether the executive should refuse to surrender on the grounds that such surrender would violate the principles of fundamental justice. Repeated attempts by the same prosecutorial authorities to prosecute a person for the same offence may, in certain circumstances, well amount to harassment sufficiently oppressive that surrender of such a person would violate those principles. As I mentioned earlier, however, the courts should intervene only in compelling situations.

The present case does not seem to me to meet this standard. I cannot accede to the proposition that the attempt by state authorities to enforce their own laws violates those principles by reason only that the federal authorities, in attempting to enforce their laws, prosecuted her for an offence similar to that for which the state prosecution was initiated. This is far from being a clear‑cut situation. The two offences involve quite different elements. The kidnapping offence is aimed at regulating interstate and foreign commerce, and maritime jurisdiction, as well as internationally protected persons. The state action is aimed at public order within the state, and is designed particularly to protect young persons. Various other elements and defences appear in one provision but not the other. Different interests are involved with different prosecutorial authorities following their own paths. Similar situations may exist in this country; see Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; R. v. Chiasson (1982), 135 D.L.R. (3d) 499 (N.B.C.A.), aff'd [1984] 1 S.C.R. 266. They do not generally arise in as acute a fashion here because criminal law is exclusively vested in Parliament, but on the other hand the same prosecutorial authorities are often involved.

I am not troubled by the possibility that had the prosecution for the state offence been tried with the federal offence, Schmidt might well have been acquitted of the state offence. The fact is, of course, that this could not have happened. The federal court had no jurisdiction over the state offence. The only way the state authorities could enforce their laws was by prosecuting in their own courts. I see nothing sufficiently oppressive in this situation to warrant refusing surrender on the basis that such a prosecution, ipso facto, violates the principles of fundamental justice. It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process clause, the spirit and content of which bears some resemblance to s. 7 of the Charter , although the courts would act to prevent oppressive behaviour; see United States v. Lanza, 260 U.S. 377 (1922); Bartkus v. Illinois, supra; Abbate v. United States, 359 U.S. 187 (1959).

For these reasons, I do not think that surrendering the appellant Schmidt under these circumstances constitutes a breach of s. 7 of the Charter .

Conclusion

I would dismiss the appeal.

The following are the reasons delivered by

Lamer J.‑‑I agree with Justice La Forest for the reasons given by him that this Court has jurisdiction to hear this appeal. I also agree with La Forest J. when he states, at p. 518, that:

There can be no doubt that the actions undertaken by the Government of Canada in extradition as in other matters are subject to scrutiny under the Charter (s. 32). Equally, though, there cannot be any doubt that the Charter does not govern the actions of a foreign country; see, for example, Spencer v. The Queen, [1985] 2 S.C.R. 278. In particular the Charter cannot be given extraterritorial effect to govern how criminal proceedings in a foreign country are to be conducted.

I also agree with him when he says (at p. 522):

I have no doubt either that in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances.

I therefore share the view that the Canadian Charter of Rights and Freedoms should not, save special circumstances, be given extraterritorial effect by refusing to conduct a hearing or surrender a person on the grounds that the prospective trial would be in violation thereof. Sharing the view of La Forest J. that the Charter applies to the proceedings taking place in Canada, I am however of the view that a person undergoing extradition proceedings is a "person charged with an offence" as that term is used in s. 11 of the Charter . Indeed, I do not see why a person undergoing such an inquiry for the purpose of determining whether there is sufficient evidence to put that person on trial in a foreign country should be denied the protection that would be afforded that same person at his preliminary inquiry for a charge to be tried in a Canadian court. Therefore, as the proceedings in Canada are in the nature of a preliminary inquiry, those rights of ss. 7 to 14, including s. 11, guaranteed accused at that stage of the criminal proceedings in Canada are also guaranteed to those being subjected to extradition proceedings. Some obviously do not apply to preliminary inquiries and should normally not apply to extradition proceedings. That is the case of a plea of autrefois acquit, whether raised under s. 11(h) or s. 7. Such a plea is generally considered to be premature at the stage of the preliminary inquiry and should generally be raised at the trial (R. v. Prince, [1986] 2 S.C.R. 480, at pp. 507‑08). But what if the foreign country where the trial is to take place does not allow pleas of autrefois acquit as between, as in this case, federal and state prosecutions? Should this not be a situation where we should allow the plea to be raised at this phase of the proceedings because we feel that, to use the words of La Forest J., "it would violate the principles of fundamental justice to surrender an accused under those circumstances"? As regards autrefois acquit or convict I think so. But this finding will not enure to the benefit of appellant as I share the view of La Forest J. that in this case that special plea should not succeed because "The two offences involve quite different elements."

I would accordingly dismiss this appeal.

The following are the reasons delivered by

Wilson J.‑‑I have had the benefit of the reasons of my colleague, Justice La Forest, but am unable to concur in them although I concur in his proposed disposition of the appeal.

In my view, no question arises in this case of the extradition court giving the Charter of Rights and Freedoms extraterritorial effect so as to govern the criminal process in another country or of the extradition court entertaining defences on the merits to the foreign charge. The issue, in my respectful view, is whether a Canadian citizen who is the subject of extradition proceedings in a Canadian court can plead the Charter in those Canadian proceedings. I would have thought that he or she clearly can.

The appellant pleads ss. 11(h) and 7 not, I emphasize, as a defence in the projected trial in the State of Ohio, but as a defence to the extradition court's grant of an order committing her to prison to await the decision of the executive branch of government whether or not to surrender her to the U.S. authorities. Her argument in a nutshell is that the extradition court would be violating her ss. 11(h) and 7 rights if it made such an order.

This Court held in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that the deportation of any person in Canada (let alone a Canadian citizen) to a country where his or her life, liberty or security of the person was threatened would constitute a violation of s. 7 if the deportation order was not made in accordance with the principles of fundamental justice. It is clear from Singh that it is the process in Canada which must comply with fundamental justice. The appellant submits that to permit her extradition to the United States to face a trial on a charge on which she has already been tried and acquitted would be contrary to the principles of fundamental justice and, in particular, to the principle reflected in s. 11(h). We know that that principle will not avail the appellant in the Ohio court. It is not a defence there. But the question is: is it a defence to the respondents' claim for an order committing the appellant to prison to await the discretionary decision of the Executive? This, it seems to me, is the question before us. A similar question will confront the Executive when it has to decide whether or not to make the extradition order since acts of the Executive are also subject to Charter review: see Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441. But that is not before us: only the issue as it relates to the Canadian court proceedings is before us.

My point of departure from La Forest J. is that he appears to think that the recognition of Charter rights in the Canadian proceedings would be to give extraterritorial effect to the Charter and constitute an interference with the processes of the foreign court. I must respectfully disagree. If the Court refuses to commit the appellant to prison for extradition in the discretion of the Executive because to do so would violate the appellant's Charter rights, the Charter is not being given extraterritorial effect. The effect is right here in Canada, in the Canadian proceedings, although it will, of course, have repercussions abroad. But there is nothing wrong in this. We would not permit a Canadian citizen to be extradited for torture in a foreign land on the basis that to refuse to permit it would be to give the Charter extraterritorial effect. We did not take that approach in Singh or in Operation Dismantle. If the participation of a Canadian court or the Canadian Government is required in order to facilitate extradition so that suspected criminals may be brought to justice in other countries, it seems to me that we must face up to the question whether such persons have the benefit of the Charter or not in the Canadian proceedings. We must, in other words, decide whether Canada's treaty obligations override Charter rights in respect of the Canadian proceedings or whether Charter rights must be recognized in those proceedings whether or not similar rights are available to the person in the foreign proceedings for which he or she may be ordered extradited.

In my view, Charter rights which are enshrined in our Constitution as part of the supreme law of Canada must be recognized and given effect in any judicial proceeding in Canada unless a reasonable limit justified under s. 1 has been imposed upon them. The Ontario Court of Appeal has held that the extradition process is itself a reasonable limit: see Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385 (Ont. C.A.) I do not find it necessary to express a view on this very important question in this case since I think the appellant has failed to establish that the offence in Ohio is the same offence as the offence under the United States Code.

In approaching the issue of the sameness of the offences I think it is important for the Canadian court to apply its mind first to the question of what law is properly applicable to determine whether two offences in foreign jurisdictions are or are not the same. It seems to me that two steps are required. First, the meaning, purpose and effect of each of the foreign laws must be independently ascertained. This is done, I believe, under Canadian conflict of laws rules by reference to the law of the respective foreign jurisdictions. Expert evidence will have to be adduced in the Canadian court. Second, the foreign laws would then be compared in light of their respective meaning, purpose and effect to determine whether or not the offences created under them are the same. This would be done, in my view, by resort to Canadian domestic law, in this case the law set out by this Court in R. v. Prince, [1986] 2 S.C.R. 480. While it is entirely appropriate for the foreign law to interpret and explain the nature, purpose and effect of its own offences, the comparison of these offences for purposes of the application of the Canadian double jeopardy principle would seem to be peculiarly for Canadian law. I do not believe, however, that the two steps can be collapsed into one.

The witness Spiros Gonakis, who was qualified as an expert witness in both Ohio and federal criminal law, was prepared to collapse them into one and gave his expert opinion not only as to the nature of the two foreign offences under review but also as to the degree of their identity for double jeopardy purposes, even although he acknowledged that double jeopardy was not a defence to the Ohio charge under Ohio law. He testified that the two offences were the same. He acknowledged, however, that the essential elements of the offences were not the same and that the defences to the charges were different. Steele J. therefore disregarded his opinion as to their sameness and so also did the Court of Appeal.

It seems to me that counsel for the appellant failed at the extradition hearing to discharge the burden that was his under ss. 7 and 11(h) of the Charter of showing that the federal and Ohio offences were the same offence. In failing to establish that, he failed to establish that the appellant's Charter rights would be violated if the order sought by the respondents was made. This is determinative of the issues in the case.

For these reasons I agree with the disposition of the appeal proposed by La Forest J. I also agree with La Forest J. for the reasons given by him that this Court had jurisdiction to entertain this appeal.

I have now had the benefit also of the reasons of my colleague, Justice Lamer, and, while I am in complete agreement with him as to the applicability of the Charter to the appellant's extradition proceedings (leaving aside s. 1), I have some reservations about his view that a person, by virtue of being the subject of extradition proceedings in Canada, is a "person charged with an offence" in Canada within the meaning of the opening words of s. 11. I rely rather on the fact that the opening words of s. 11 are not subject to geographical limitation. The appellant is indisputably a "person charged with an offence", albeit not in Canada but in Ohio, i.e., the offence of child‑stealing, but she is a person "in Canada" entitled to the protection of ss. 7 and 11(h) in any proceedings being conducted in Canada with a view to such a charge, whether such proceeding itself partakes of a trial or not. It is on this basis that I conclude somewhat tentatively that the appellant would have been entitled to the protection of s. 11(h) (subject, of course, to the application of s. 1 which I leave open) had she been able to discharge the burden of showing that she was charged with the same offence in Ohio as she had been acquitted of under the United States Code. If, however, there is doubt as to whether the appellant falls within the strict wording of s. 11(h), it would seem to me that she clearly falls within the broader language of s. 7 and is entitled to the protection of that section in the extradition proceedings subject again to the application of s. 1.