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Trinidad and Tobago High Court |
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BETWEEN
CLIVE LANCELOT SMALL
A.K.A.
A.K.A.
OF TRINIDAD AND TOBAGO Respondent
Appearances:
Mrs. Pamela Elder, S.C, Mr. Ken Wight and Mr. Owen Hinds for the Applicant
Mr. Mendes, S.C., Ms. Dana Seetahal, Mr. David West and Mr. Primus for the Respondent
The instant Application was instituted pursuant to s.14 of the Constitution. It arises as well pursuant to a Case Stated by Magistrate Joanne Connor, who under s.14 (4) referred a constitutional issue for the determination of the High Court.
The specific issue is whether s. 19A(2) (b) of Act #12 of 2004 infringes the rights of the Applicant at ss. 4(a) and (b) of the Constitution.
Documents before the Court
The Court has been moved by a Notice of Motion filed on the 24 th May, 2004 pursuant to s. 14 of the Constitution.
The Notice of Motion is supported by the affidavit of the Applicant and was also filed on the 24 th May 2004.
Facts :
1. The facts of this matter are not in dispute 2. The Government of the United States of America (USA) has sought the extradition of the Applicant for firearm offences 3. The Applicant was first arrested on a provisional warrant on the 6 th March 2004 4. The Attorney General of Trinidad and Tobago issued an Authority to Proceed on the 12 th March, 2004 and the hearing of extradition proceedings began against the Applicant before His Worship Sherman McNicolls in March 2004 5. In an application for judicial review, filed on the 15 th March, 2004 the Applicant challenged the issuance of the provisional warrant; the decision of Chief Magistrate to refuse his application for bail and the decision of the Attorney General to issue the Authority to Proceed.
6. On the 6 th April, 2004, the Applicant was successful in his application for Judicial Review. The Honourable Justice Ventour granted inter alia an order of certiori quashing the Authority to Proceed of the Attorney General and the Applicant was released from custody on the 7 th April 2004.
7. Immediately upon his release, the applicant was re-arrested.
8. The following day, the Applicant appeared once again before Chief Magistrate McNicolls, acting on the Attorney General’s Authority to Proceed of the 7 th April 2004.
9. The Chief Magistrate recused himself on the 14 th April 2004 and the hearing of the extradition proceedings began before Her Worship Joanne Connor.
10. Before her Worship Connor, attorneys for the requesting state sought to introduce a Bundle of Documents pursuant to s. 19A(2)(b) of the Extradition (Commonwealth and Foreign Territories) (Amendment) Act No. 12 of 2004. These documents were admitted by Magistrate Connor.
11. In the course of her no-case submission, learned Senior Counsel for the Applicant submitted that s. 19A(2)(b) of the Amendment Act was unconstitutional.
12. Magistrate Connor accepted this submission and referred the constitutional issue to the High Court by way of case stated which is exhibited herein as “O.E.E. 19”
13. Accordingly, the specific issue which this Court is called upon to consider and which is entirely one of law, is whether s.19A(2)(b) contravenes s.4 and/or s. 5(2) of the Constitution.
Senior Counsel for both the Applicant and the Attorney General filed written Arguments, which were supplemented by oral submissions.
Submissions :
At the heart of the submission of learned Senior Counsel for the Applicant was that section 19A (2)(b) facilitated the admission of otherwise inadmissible evidence at the extradition hearing. Such evidence was tendered in the absence of procedural safeguards such as the requirement of certification.
On this inadmissible evidence the extradition Magistrate was required in mandatory terms to commit the fugitive to await his surrender, thus incontrovertibly, depriving him of his liberty.
Learned Senior Counsel submitted that the deprivation of the Applicants liberty on the basis of otherwise inadmissible evidence in the absence of safeguards constituted deprivation without due process of law contrary to s. 4(a) of the Constitution.
Learned Senior Counsel for the Applicant alluded to the pre-amended s. 19 of the Extradition Act and referred to the case of R v. Governor of Pentonville Prisons Ex p. Kirby (1979 2 All ER 1094 in support of her submission that prior to the enactment of the impugned section hearsay evidence was inadmissible in extradition proceedings.
Learned Senior Counsel for the Applicant also cited and relied on Canadian authorities which expound the importance of UK v. Tarantino (2003) BCSC 1134
Learned Senior Counsel alluded to the case of USA v. Yang (2003) D.L.R. (4 th ed.) 337 and Germany v. Ebke (2003) DLR (4 th Ed.) 415, in which the constitutional validity of analogous Canadian legislation was upheld.
While encouraging the Court to depart from the reasoning in Ebke & Yang Learned Senior Counsel highlighted the view of Justice Rosenberg in Yang , that it was open to Parliament to design a procedure with appropriate safeguards.
Learned Senior Counsel for the Applicant instead urged the Court to follow the reasoning in the Canadian cases of Bourgeon v. Canada (2000) OJ No. 1656 and Canada v.Ortega (2004) BCSC 66.
As a second limb to her attack on the Constitutionality of s. 19(A)(2)(b), Learned Senior Counsel referred to the amended s. 12(4) of the Extradition Act.
Learned Counsel focused on the different standards which guide the extradition Magistrate in respect of the evidence of the Requesting State on the one hand and the evidence of the fugitive on the other. She underscored the burden on the fugitive to adduce evidence that was reliable and pointed out that the Requesting State carried no similar burden.
Learned Senior Counsel emphasized, both in her submissions in chief and those in reply, that the remedy of habeas corpus affords no protection to a fugitive who has suffered violation of his right as a consequence of the impugned section. Any evidential mishaps would then be legal and beyond the reach of the Court through a Writ of Habeas Corpus. Thus Senior Counsel urged the Court that the only effective remedy was under s. 14 of the Constitution.
Submissions of Learned Senior Counsel for the Attorney General
Learned Senior Counsel for the Attorney General referred to the Privy Council decision in Independent Publishing Co. v. The Attorney General of Trinidad and Tobago [2004] U.K.P.C. 26, where their Lordships revisited the time-honoured principle enunciated by Lord Diplock in Maharaj v. Attorney General [1978] UKPC 3; [1979] A.C. 385 that the fundamental right is to a system that is fair and not one which is infallible.
Learned Senior Counsel cited paragraph 88 of the Advance Copy, where their Lordships ruled:
“In deciding whether someone’s s.4(a) right not to be deprived [of their liberty] except by due process of law” has been violated, it is the legal system as a whole which must be looked at not merely one part of it….”
On the foregoing premise, learned Senior Counsel proceeded to identify those aspects of the legal system which rendered it fair to the fugitive who faced extradition proceedings under the current Extradition Act as amended by Act 12 of 2004. They may be enumerated as follows:
(i) The fugitive enjoyed general common law rights of fairness such as the right to disclosure of unused material, See Fergusson.
(ii) The fugitive derives protection from the various stages of the procedures under the Extradition Act , in particular the obligation of the requesting state to furnish the Attorney General with a certified Record of the case. Learned Counsel referred to the case of R v. Stipendiary Magistrates Ex p. Dokle’s (Unreported January 31 st 1994) in support of his contention that the Authority to proceed could be set aside if the available evidence is inadequate to justify the issue of the Authority to Proceed by the Attorney General
(iii) The fugitive derives protection from the judicial hearing prescribed at s. 12 of the Extradition Act Learned Senior Counsel referred to the Republic of Phillipines v Pacificedor , where the extradition hearing was described as a “ screening process ……” and learned Senior Counsel submitted that “built in safeguards” exist in the extradition hearing to prevent the making of “whimsical applications by the Requesting Stage”.
(iv) The fugitive is protected by “ three sentinels ” created by s. 8 of the Extradition Act . Section 8 protects the fugitive against requests for political and other discriminatory offences. Section 8 also provides protection by the specialty provision….
(v) The fugitive is protected by the availability of the Writ of Habeas Corpus provided for at s. 13.
Learned Senior Counsel, Mr. Mendes submitted further that Article 8 of the Treaty was available to provide safeguards of authentication and certification.
In this regard, Learned Senior Counsel answered the submission of Senior Counsel for the Applicant as to whether Act 8 of the Treaty has been incorporated into Municipal law. Mr. Mendes relied on learning in Neville Lewis v. Attorney General in support of his submission that, as a tenet of statutory interpretation, Acts of Parliament should be construed to give effect to international obligations.
(vi) The fugitive is protected by rules which entitle the Court to protect itself against abuse.
For example, submitted Mr. Mendes, it would be an abuse of the Court’s process if the Requesting State pursued a request for extradition in the absence of evidence.
Mr. Mendes submitted that the fugitive had at his disposal “an array of remedies.”
Having referred to all the safeguards available in our judicial system, learned Senior Counsel inferred that there was no real purpose to be served by certification.
Mr. Mendez then referred to cases which establish that the content of due process varies with the type of proceeding. He submitted that the extradition process was an “extended form of arrest…...”
He submitted further, on the authority of USA v Helen Susan Schmidt that extradition should be considered in context of the importance of Extradition to transnational crime. He referred to the case of Kindler and submitted that the Court should consider the constitutional complaint in the light of three principles: reciprocity, comity and the need to accommodate differences in other judicial systems.
On the third day of his address, Mr. Mendes address, he referred in depth to the cases of Yang & Ebke and urged the Court to be guided by their authorities.
In the course of his submissions learned Senior Counsel demonstrated the ill-effects of certification, which could be used as a screen for abuses of process.
LAW
Constitutional Provisions And Rules
This matter is duo-dimensional: one dimension being the principles of constitutional law in our jurisprudence, the other being the law relating to extradition:
1. The well-known fundamental rights provisions of the Republican Constitution are set out hereunder:
“ 4. It is hereby recognised and declared that in Trinidad and Recognition Tobago there have existed and shall continue to exist, without of rights and discrimination by reason of race, origin, colour, religion or sex, the freedom following fundamental human rights and freedoms, namely-
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
5. (1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not -
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.
2. There is no dispute in this case that extradition proceedings are governed by the fundamental rights and provisions of the Constitution. This was clearly stated in the Canadian case of USA v. Dynar (1997) 2 SCR 462.
3. The provisions of s. 7 of the Canadian Charter of Human Rights and Freedoms are similar to those of Trinidad and Tobago. Section 7 of the Canadian Charter enshrines the right of “everyone” 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….”
4. The classic definition of “due process” may be found in the judgment of Phillips, JA in Lasalle v. A.G. (1971) 18 WIR 379 at p. 391G:
“The concept of “due process of law” is the antithesis of arbitrary infringement of the individual’s right to personal liberty; it asserts his right to a free trial, to a pure and unbought measure of justice….”
Phillips, JA continued:
“While it is not desirable and …………..may not be possible to formulate an exhaustive definition of the expression, it seems to me that as applied to the criminal law …..it cannotes adherence …..to the following fundamental principles:
(i) reasonableness and certainly in the definition of criminal offences
(ii) trial by an independent and impartial tribunal
(iii) observance of the rules of natural justice”.
The judgment of Phillips, JA received the approval of the Judicial Committee of the Privy Council in Thomas v Baptiste (1999) 54 WIR 387 at 421b, where Lord Millette, describing the judgments of Phillips, JA as “illuminating” enunciated the following:
“In their Lordships view, “due process of law” is a compendious expression in which the word Law does not refer to any particular law and is not a synonym for common law or statute. Rather it invokes the concept of the rule of law itself and the universally accepted standards of justice observed by civilized nations which observe the rule of law…”
Lord Millette continued at p. 421C as follows:
“The clause thus gives constitutional protection to the concept of procedural fairness. Their Lordships respectfully adopt the observation of Holmes, J in Frank v Mangum 237 US 309…..”
“Whatever disagreement there may be as to the scope of the phrase “due process of law” there can be no doubt that it embraces the fundamental concept of a fair trial, with opportunity to be heard….”
5. In the Privy Council decision,
Independent Publishing Co. Ltd. v. Attorney General of Trinidad and Tobago
[
2004] UKPC 26 their Lordships considered the pronouncement of Lord Diplock and the ultimate decision of their Lordships in
Maharaj v. A.G
. [1978] UKPC 3; [1979] AC 385. The fundamental right of the individual, by the pronouncement of Lord Diplock,
“…..is not to a legal system that is infallible but one that is fair……”
At paragraph 85 of their judgment their Lordships in the Independent Publishing v. A.G. continued their reference to Lord Diplock in Maharaj as saying:
“………It is only errors in procedure that are capable of constituting infringements of the rights protected by s. 1(a) …..and no mere irregularity in procedure is enough ….the error must amount to a failure to observe one of the fundamental rules of natural justice.”
At paragraph 87 of their judgment, their Lordships departed from the traditional understanding of Lord Diplock’s judgment in Maharaj and said at para 88:
“In deciding whether someone’s s.4 (a) right not to be deprived [of their liberty] except by due process of law” has been violated, it is the legal system as a whole which must be looked at not merely one part of it. The fundamental human right, as Lord Diplock said, is to “a legal system…..that is fair……”
Law Of Extradition
1. In Trinidad and Tobago requests for extradition to Commonwealth and Foreign territories are governed by the Extradition (Commonwealth and Foreign Territories) Act #36 of 1985 (“the 1985 Act”).
2. By Act 12 of 2004 (the 2004 Act ) portions of the 1985 Act were amended. For the purposes of the matter herein the following amendments are relevant:
• Section 8 of the 2004 Act amends s. 9 of the 1985 Act by prescribing that a “record of the case” be furnished (personally to the Attorney General) with the foreign territory’s request for extradition.
• Section 9 of the 2004 Act amends s. 12(4) of the 1985 Act by prescribing in mandatory terms when the Magistrate should commit a fugitive to await his surrender.
The new subsection 12(4)(a) requires the Magistrate to commit where there is “evidence admissible under this Act of conduct that, had it occurred in Trinidad and Tobago would justify committal ……for the offence set out in the authority to proceed…..”
• Section 14 of the 2004 Act repealed the former s. 19 and enacted ss. 19 and 19A and 19B. Section 19A (2)(b) is the section which is impugned in this matter.
“14. Section 19 of the Act is repealed and the following sections are substituted:
19A. (1) Subject to subsection (2), evidence that would otherwise be admissible under the laws of Trinidad and Tobago shall be admitted as evidence at an extradition hearing.
(2) The following evidence is admissible in proceedings under this Act, even if the evidence would not otherwise be admissible under the laws of Trinidad and Tobago:
(a) the contents of the documents contained in the record of the case or in supplementary evidence, certified under subsection (5);
(b) the contents of the documents that are submitted in conformity with the terms of a treaty with a declared foreign territory; and
(c) evidence adduced by the person whose return is sought that is relevant to the tests set out in section 12(4) if the Magistrate considers it reliable.
(3) A document purporting to have been signed by a judicial, prosecuting or penal authority, or other officers administering a Government Department, of the declared Commonwealth or foreign territory shall be admitted without proof of the signature or official character of the person appearing to have signed it.
(4) A translation of a document into English shall be admitted into evidence only where it is certified by a judicial, prosecuting or penal authority, or other officer administering a Government Department, of the declared Commonwealth or foreign territory and purports to be an accurate translation of the original document.
(5) A record of the case or supplementary evidence shall not be admitted unless –
(a) in the case of a person who is accused of an extraditable offence, a judicial or prosecuting authority of the declared Commonwealth or foreign territory certifies that the evidence summarized or contained in the record of the case or in the supplementary evidence is in a form that would be admissible at the trial and –
(i) was gathered according to the law of that territory; or
(ii) is sufficient under the law of that territory to justify prosecution; or
(b) in the case of a person who is alleged to be unlawfully at large after conviction of an extraditable offence, a judicial, prosecuting or penal authority of the declared Commonwealth or foreign territory certifies that the documents in the record of the case or in the supplementary evidence are accurate; and
(c) each document contained in the record of the case or in supplementary evidence bears the signature of the certifying official”l.
3. The existing treaty between Trinidad and Tobago and the USA was concluded in 1996. In accordance with s. 3 of the 1985, the USA was declared by L.N. 58/2000 a foreign territory in relation to which the Act applied.
4. For the purposes of this matter Articles 7 and 8 of the Treaty are of relevance. By Article 7, the Contracting States have agreed that requests for extradition should be submitted in writing through diplomatic channels.
5. Article 7(2) specifies the genus of documents which are required to support the request for extradition. Of significance is Article 7(2)(b):
“….information describing the facts of the offence and the procedural history of the case……”
6. By Article 8 of the Treaty, the Contracting States have agreed that:
“ The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if –
(a) in the case of a request from the USA, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomatic or consular office of Trinidad and Tobago in the USA
7. It is well-established by the highest authority that the terms of an international treaty do not become part of municipal law unless and until so incorporated by Parliament. In the case of Thomas v. Baptiste (1999) 54 W.I.R. 387 at 422 a, Lord Millette expressed the following view on behalf of the Judicial Committee of the Privy Council:
“ Their Lordships recognize the constitutional importance of the principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation….”
8. International treaties, though unincorporated into municipal law, have an indirect effect on the construction of municipal statutes on account of the presumption that Parliament does not intend to pass legislation which would put the State in breach of its international obligations. This was the observation of their Lordships in Higgs v. Minister of National Security [2000] 2 A.C.228, referred to and quoted in Lewis v. A.G. of Jamaica [2000] 3W.L.R. 1785.
9. The Canadian Cases
The provisions of s. 7 of the Canadian Charter of Rights and Freedoms are similar to those of s.4 (a) of the Constitution .
The provisions, which are impugned herein are also similar in content to provisions of sections 32 to 33 of the 1999 Canadian Extradition Act of 1999. The Canadian provisions are set out hereunder for ease of reference:
• Extradition Act 1999 Canada
32. (1) Subject to subsection (2) evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:
(a) the contents of the documents contained in the record of the case certified under subsection 33(3):
(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and
(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.
(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.
33. (1) The record of the case must include
(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; and
(b) in the case of a person sought for the imposition or enforcement of a sentence,
(i) a copy of the document that records the conviction of the persons, and
(iii) a document describing the conduct for which the person was convicted.
(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.
(3) A record of the case may not be admitted unless
(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and
(i) is sufficient under the law of the extradition partner to justify prosecution, or
(iii) was gathered according to the law of the extradition partner; or
(b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.
Having regard to the similarity of legislative provisions, the decisions of Canadian Courts, though not binding on me, are of persuasive authority.
10. Principles which emerge from Canadian authorities
Senior Counsel for both parties commended for the Court’s attention some fifty (50) authorities, many of which were decisions of Canadian Courts.
The Canadian authorities spoke clearly in their acknowledgment of specific principles, which pertain to the constitutionality of the extradition process. Before attempting to summarize the principles which appear to be relevant to this case, it would be appropriate to refer to the decisions of greater magnitude.
• USA v. Sagarra (2002)
US v. Sagarra was a decision of Justice Dunn and concerned a request by the Government of the United States of America for the extradition of Jorge Sagarra from the province of Newfoundland. Sagarra was a resident of Spain and his extradition was sought for allegedly violating title 49, US Code, Section 46504 by interfering with the duties of crew members and lessening their ability to perform their duties. The Court decided that Sagarra should be returned.
In the course of the decision, Justice Dunn referred to the principle that treaties should be given a fair and liberal interpretation. See paragraph 4 of the report:
“The present system of extradition works because Courts give the treaties a fair and liberal interpretation with a view to fulfilling …………obligations reducing 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 evidence and adequate consideration of available defences the dictates of due process generally…..”
The learned Judge cited the case of Argentina v Mellino (1987) 33C.C.C. (3D) 334, the learned Judge said:
“The Court must not overlook that extradition proceedings must be approached with a view to conform to Canada’s International Obligations. The Courts on many occasions have re-iterated that the requirements and technicalities of the criminal law apply only to a limited extent in extradition proceedings.”
At p. 4 of 16, the learned Judge considered the role of the extradition Court referring again to Argentina v. Mellino Justice Dunn said that the role of the extradition Court is a modest one.
Justice Dunn later said:
“The role of the Court is there to determine whether using the applicable evidentiary standard ……the conditions for the making of the order for committal under s. 29 of the Act are satisfied. If an order for committal is made, the role of the extradition Judge is spent and it then falls to the Minister to make an executive decision as to whether the person who is the subject of the committal order should in fact be surrendered….”
………an extradition hearing is not a trial…..but is intended to be an expedited process to ensure proper compliance with Canada’s international obligations”
The learned Judge examined the sufficiency of evidence as to conduct justifying committal and re-iterated the well-established similarity between the extradition Judge and the committing Magistrate. He referred to the case of USA v. Sheppard where Justice Ritchie stated:
“The duty imposed upon a justice [conducting a preliminary enquiry] is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is sufficient to justify him in withdrawing the case for the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The justice …….is …….required to commit an accused person for trial in any case in which there is admissible evidence which could …..result in a conviction.
Justice Dunn cited the case of USA v. Smith (1984) 10 c.c.c. as to the purpose of an extradition hearing and quoted Houlder, JA as saying that the purpose of the extradition hearing “…….is merely an enquiry to determine whether there is sufficient evidence to warrant sending the fugitive to the demanding state so that he may stand trial…..”
It was the learning which appeared under the heading “Sources and Admissibility of Evidence…..” and that Learned Counsel for the Applicant referred to and relied upon.
In assessing “Sources and Admissibility of Evidence at the Extradition Hearing , Justice Dunn set out the provisions of ss. 32 of the Canadian Act which is substantially the same as ours. Justice Dunn observed that the current (Canadian) Act continues to recognize two methods of adducing evidence:
• documents submitted in conformity with an extradition agreement
• evidence otherwise admissible under Canadian Law
• evidence submitted with the record of the case.
Justice Dunn cited the case of USA v. Drysdale [2000] OJ quoted the following comment on the new admissibility provision:
“Among the innovations contained in the Act are a series of provisions designed to relax and streamline the rules of evidence at an extradition hearing, in order to make the hearing more expeditious, and in order to ameliorate the difficulties arising between states when a requesting state with a legal system that differs from that of the requested state tries to prepare extradition material that will satisfy the law of evidence in the requested state.
The record of the case, therefore, provides a mechanism of submitting evidence to an extradition hearing in Canada that does not involve the use of viva voce evidence or even affidavit evidence from the first party sources. This follows from the provision in subsection 32(1) that the record of the case may be admitted “even if it would not otherwise be admissible under Canadian Law.” The record may contain “can say” summaries of what individual witnesses are expected to say. Hearsay information is therefore permitted”.
Learned Senior Counsel for the Applicant relied on particular on the following statement:
“ The assurance of reliability comes, not by passing the information through a Canadian evidentiary screen, but by the certification of the judicial or prosecuting authority in the requesting state – a state in which Canada has signified confidence as to the fair operation of its judicial system by entering into an extradition agreement with it – that the evidence in the record of the case is available for trial and is sufficient under that state’s law to justify prosecution.
• United States of America et al. v. Yang (2003) D.L.R. 337
In the case of Yang, the Applicant had been charged with a number of violent offences in the USA. The Ontario Court of Appeal considered the constitutional challenges made by the Applicant, in respect of whom the USA had made a request for extradition from Canada.
The specific sections which were challenged were ss. 32 to 34 of the Extradition Act 1999 of Canada. In dismissing the fugitives appeal, the Ontario Court of Appeal held at p.340 as follows:
“In determining whether s. 7 of the Canadian Charter of Rights and Freedoms has been infringed, a court must take a contextual approach. In the extradition context, a court must consider the principles of reciprocity, comity and respect for differences in other jurisdictions.”
“The principles of fundamental justice entitle the fugitive to certain protections, including a hearing before an unbiased decision-maker, the right to be present and the right to know the case against him or her.”
The Ontario Court of Appeal held further:
“Although the evidentiary provisions of the Extradition Act do not violate the Charter, a fugitive is not precluded from arguing that the application of the provisions may, in a particular case, operate to violate the fugitive rights. Evidence that has been collected in a manner that would make its admission unfair may be excluded under the Charter.”
The Ontario Court of Appeal in Yang adjudicated on the specific question which now engages my attention. The appellant there submitted that he should not have been committed because the material placed before the extradition judge was inadmissible. Citing the case of USA v. Cobb (2001) 152 C.C.C. (3D) 270, Justice of Appeal Rosenberg confirmed that there was no doubt that extradition proceedings were susceptible to Charter provisions and formulated the following issue:
“ ..Whether, in the context of an extradition hearing, the principles of procedural fairness demand that the evidence meet some minimal standard of reliability before it can be used to deprive the person sought for extradition of his liberty ..”
At p. 350 of the report, Justice of Appeal Rosenberg considered evidence directed to explaining changes in extradition legislation and alluded to a world-wide trend to modernize extradition legislation. Justice of Appeal Rosenberg referred to a particular problem, where non-common law territories found it difficult to comply with the requirement of sworn affidavits based on first hand knowledge. These problems ultimately resulted in frustrated extradition requests and a reluctance to pursue extraditions. See p. 351 of the Report.
At p.354 of the Report, Justice of Appeal Rosenberg alluded to the reasons for the failure of the constitutional challenge at first instance, where Dilks, J found it necessary, in determining whether the principles of fundamental justice have been respected:
“…..to balance the importance of the rights with the importance of the legislative purpose”
Ultimately, the first instance Judge decided that the new evidentiary provisions did not violate the Charter because of the abundance of safeguards in the legislative scheme. Justice of Appeal Rosenberg commented:
“In particular he held that any apparent lack of reliability because of s. 32 is compensated for by the certification requirements of s. 33.”
Referring to the refusal of the first instance Judge to follow the decision in Bourgeon v. Canada, Justice of Appeal Rosenberg summarized the thrust of Justice Ewaschuk in that case.
The analysis of Justice of Appeal Rosenberg may be found from p. 357 of the Report. The learned Justice of Appeal re-iterated the principles which govern applications of this kind, that is to say that the Court is required to balance the interests of the State and the individual and that the Court should take a contextual approach.
Alluding to the principles of reciprocity, comity and respect for differences in other jurisdictions , Justice of Appeal Rosenberg remarked:
“… The implications of these contextual factors are profound. First and foremost the Courts are instructed not to impose Canadian standards upon our extradition partners. A foreign justice system is not unjust because it does not recognize certain safeguards that we consider principles of fundamental justice…..”
At p. 357, the learned Justice of Appeal Rosenberg decided that the impugned provisions of the Canadian Extradition Act 1999 complied with the principles of fundamental justice. He expressed it this way:
“Put simply, if we are prepared to countenance a trial of persons, including our own citizens, in jurisdictions with very different legal systems from our own, it is open to Parliament to design an extradition procedure that, with appropriate safeguards, accommodates those differences. Our extradition process need only meet “basic demands of justice.
Quoting La Forest, J in R. v. Schmidt, Justice of Appeal Rosenberg said:
“The system must be one that is ‘reasonably effective… for the surrender of fugitives from one country to another untrammeled by excessive technicality or fastidious demands that foreign systems comply with ”.
At p.359, Justice of Appeal Rosenberg set out his reasons for his decision. Referring to the U.N. Model Treaty on Extradition and the European Convention on Extradition , Justice of Appeal Rosenberg observed that similar material had persuasive effect in USA v. Burns and remarked that there was a trend “ towards simplifying the extradition process to accommodate differences in the legal systems of extradition partners”:
Justice of Appeal Rosenberg expressed the view that the fugitive is not entitled to a particular form of evidence. And quoted Justice Sopinka in Rodriguez:
“a mere common law rule does not suffice to constitute a principle of fundamental justice”. Rather, principles of fundamental justice are ones “upon which there is some consensus that they are vital or fundamental to our societal notion of justice”.
Towards the end of his judgment, Justice of Appeal Rosenberg repeated his disagreement with Justice Ewaschuk in Bourgeon v. Canada.
• Ebke v. the Federal Republic of Germany 224 D.L.R. (4 TH ) 597
The North West Territories Court of Appeal considered the constitutional challenge of the fugitive whose extradition was sought by the Federal Republic of Germany for offences committed in furtherance of terrorist activities. The challenge in Ebke was against s. 32 (1)(a)(b), 33 and 34 of the 1999 Canadian Act.
The challenge was rejected by the first instance Judge. The appeal was dismissed. On appeal, the Court of Appeal re-iterated the statement in Yang, as to the principles of fundamental justice in extradition matters. See p. 599 of the Report:
“The principles of fundamental justice entitle a fugitive to the right to be present, the right to an unbiased decision-maker and the right to know the case against him or her. It does not create the right to a particular form of evidence”
At p.602, Justice Paperny, J.A. identified the issue thus:
“The appellant submits in essence that these provisions in the New Act are unconstitutional because they require the extradition judge to admit evidence that does not accord with the law of evidence in Canada.”
At p.603, Justice Paperny, J.A restated the principle concerning the role of the judicial officer at the extradition hearing :
“The role of the extradition judge under the Act does not require a determination on the reliability of the evidence presented in support of a request. The judicial officer assesses the evidence only to determine its sufficiency if believed. The evidence tendered must be certified as admissible under the partner’s law. ( emphasis mine) The extradition judge is charged with determining sufficiency of evidence to warrant sending the fugitive to the requesting state to stand trial, and not to weigh the evidence or determine credibility of witnesses. As the learned extradition judge put it, “The question for the judge is whether there is any evidence that has the capacity to found a conviction, not whether it does or does so strongly or weakly.” [203 D.L.R. (4 th ) 415 (N.W.T.S.C.) para. 63.)
…………………………….”
“ In the statutory scheme in which the extradition judge is acting, the question of admissibility of evidence gathered outside of Canada under Canadian law is not relevant, nor are questions of reliability of evidence similarly gathered”.
As noted in Yang , supra, reliability is ensured by s. 33 of the Act requiring the record of the case be certified by a judicial or prosecuting authority that the evidence is sufficient to justify prosecution or was gathered according to the law of the extradition partner.
At paragraph 21, Justice Paperny, J.A agreed with the decision in Yang:
“In our view, the learned extradition judge was correct in concluding that the standard set by international norms, the need for efficient and cooperative measures as between nations, the fact that Canadian admissibility rules are not immutable, and that the burden on the requesting state is to present evidence which, if believed, would establish a prima facie case, all lead to the conclusion that the impugned sections of the act are constitutionally valid and comply with the requirements of fundamental justice. We are supported in this conclusion by the recent decision of the Ontario Court of Appeal in Yang, supra. We agree with the conclusion of the Ontario Court of Appeal, and adopt their reasons. The appeal on that ground is dismissed.”
• United Kingdom V Tarantino 2003 BCSC 1134
In Tarantino , the United Kingdom and Northern Ireland, the requesting state, sought the extradition of Gerald Alfonso Tarantino, the person sought, from Canada for prosecution on charges of conspiracy to defraud in relation to the sale of rare coins
The issue was identified as to whether certification of the record of the case affords the presumption of accuracy given the certification history.
Madam Justice Stromberg-Stein adopted the summary of Q.C. for the Requesting State on the purpose and importance of the certification process :
“Prior to the enactment of the current Extradition Act in 1999, extradition proceedings were conducted largely on affidavit evidence. The rationale was that affidavits and other sworn documents provided the level of accuracy as to the assertions of a requesting state which would satisfy one of the most important fundamental purposes of extradition proceedings, the protection of the liberty of the individual”.
[35] “Under the former Act, the requirements for affidavit material and other evidentiary thresholds created technical roadblocks for requesting states. Hearings were cumbersome to the point that some states were simply deciding not to pursue extradition in legitimate and important cases. Section 33(3)(a) of the Act provides for certification by signature of a prosecuting authority of the extradition partner to be sufficient in substitution for affidavit material required under the former Act.
[36] Section 32(1)(a) of the Act provides that evidence in a record of the case is admissible at the extradition hearing if it is certified in accordance with s. 33(3)(a) of the Act. The introduction of the record of the case, provided for in these sections are the foundation document in place of affidavits and other perceived roadblocks to efficiency, is clearly one of the most significant features of the new Extradition Act.
[37] The record of the case is now the primary method for introducing evidence. It is afforded a broad and powerful presumption of accuracy founded upon the act of certification by a responsible official in the requesting state.
[38] The Supreme Court of Canada has commented that, for the validity of the certification, Canada relies on “the fairness and good faith” of the requesting state: USA v. McVey, [1992] 3 SCR 475 at paragraph 58. Certification is of critical importance. It has been held to be the fibre with which the safety net of assurances as to available evidence is woven . With that safety net and the trust statutorily placed in it, foreign states are afforded extraordinary credence in their locally untested assertions based on the certification. (Emphasis mine)
“In this case, there is demonstrated proof that the relevant certifying official has not been diligent”.
Ultimately, it was held in Tarantino that inaccurate certifications were an abuse of the Court’s process and a violation of s.7 of the Charter. At paragraph 55, the learned Judge described the certification process as “ the single most important protection of liberty of a Canadian citizen in extradition proceedings and, unchecked, is meaningless and opens the door to potential injustice and abuse”
• Bourgeon v Attorney General of Canada
In Bourgeon, the fugitive, a Venezuelan national, has been charged in Philadelphia, Pennsylvania with the sexual assault of three young persons . The applicant fugitive challenged the constitutional validity of provisions in the Extradition Act, 1999 that allow for the admissibility of evidence which contravenes Canadian rules of admissibility and that dispense with the need for evidence to be solemnly affirmed or under oath as a precondition to its admissibility. The fugitive submits that Parliament has contravened his constitutional rights by its statutory abolition of the traditional common law rules of evidence, particularly the exclusionary rules that govern the admissibility of foreign evidence at a Canadian extradition hearing.
The fugitive also challenged the mandatory nature of the extradition hearing, which deprives the extradition judge of discretion to refuse to commit the fugitive for surrender even though the evidence would otherwise justify committal.
At Pg. 548, the learned trial Judge noted:
“ that the number of treaties in force prior to the present Extradition Act, 1999 authorized the reception of evidence at an extradition hearing that was not otherwise admissible under Canadian domestic law. It is important also to note that under s. 3(1) of the former Extradition act, R.SC. 1985, c. E-23 (repealed by S.C. 1999, c. 18, s. 129, effective June 17, 1999), the terms of a treaty had precedence over the Act in the case of inconsistency”.
At Pg. 549, the learned trial Judge observed
“The applicant relies on s. 7 of the Charter as guaranteeing him the right that his liberty not be a risk of violation by fundamentally unjust means at an extradition hearing.
The legal issue was whether his extradition to the United States would contravene the principles of fundamental justice if it were based on foreign evidence otherwise inadmissible at a preliminary inquiry held in Canada.
Evidence must, generally, be solemnly affirmed or given under oath to be admissible at a Canadian judicial hearing.
In order to be admissible, evidence must also, generally, be relevant in the sense of being probative of a legal or factual issue before the Court.
The learned trial Judge identified the traditional four common law exclusionary rules as follows :
• The rule prohibiting the admissibility of hearsay evidence
• The second general exclusionary rule is the rule prohibiting the admissibility of bad character evidence
• The third general exclusionary rule is the rule prohibiting the admissibility of opinion evidence by non-expert witnesses.
• The fourth general exclusionary rule is the rule prohibiting the admissibility of self-serving evidence.
I also note that the common law exclusionary rules are not cast in stone but are in constant state of flux by reason of judicial refinement.
At Pg. 561, the learned trial Judge decided as follows:
[54] “The fugitive has, therefore, satisfied me that his liberty is at risk at an extradition hearing and that the abolition of the common law exclusionary rules as they apply to foreign evidence may result in the deprivation of his liberty in a fundamentally unjust manner. This is so inasmuch as the extradition judge may base committal for surrender on unreliable evidence, given the fact that no threshold of admissibility is required. This is also so because the Canadian judicial rule continues to apply that an extradition judge may not exclude manifestly unreliable evidence from the assessment of whether or not the requesting state has made out a prima facie case at an extradition hearing: see United States of America v. Sheppard, supra”.
[56] “It seems to me to be fundamentally unfair to the fugitive that an extradition judge must give evidence submitted by a requesting country full weight, even though the evidence is inherently unreliable, for example, fifth-hand hearsay, bad character evidence of unrelated crimes, or lay opinions of guilt in the form of oath-helping evidence. I am mindful that the common law exclusionary rules are not perfect and often exclude reliable evidence. I am also mindful that Canada should not impose its peculiar evidentiary rules on foreign countries”.
[57] “Nonetheless, I conclude that s. 32(1)(a) and (b) of the Extradition Act, 1999 contravenes s. 7 of the Charter, inasmuch as it is fundamentally unjust to a fugitive to permit an extradition judge to admit evidence at an extradition hearing that would not otherwise be admissible at a Canadian hearing, in the absence of a statutory safeguard against the reception of unreliable evidence”.
[67] “However, a court may instead “read down” an unconstitutional provision so as to comply with the Charter. The court may do so only if it is satisfied that the qualified portion of the provision is not integral to the whole scheme of the legislation and that Parliament would have enacted the other provisions despite the limitation imposed by the court”.
• United Mexican States v. Oretega [2004] B.C.J. 402
This was a decision of Justice Koenigsberg sitting in the Supreme Court Vancouver, British Columbia, in which the extradition of the fugitive had been requested by Mexico for fraud related charges.
The fugitive contended that his rights under s. 7 of the Charter had been violated. The basis of his challenge was s. 32(1) (b) of the 1999 Extradition Act. The Requesting State conceded that their certifications did not comply with s.33 of the 1999 Extradition Act and sought instead to rely on s.32 (1)(b), which is equivalent to our 19A(2)(b), requiring no certification.
In a compelling decision Justice Koenigsberg distinguished Oretega’s case from Yang and expressed the view that the constitutional validity of s.32(1)(b) was being considered for the first time.
At paragraph 28, Justice Koenigsberg stated:
“ when one considers the analysis in Yang ….one principle remains intact :fundamental justice as required by the Charter compels safeguards in relation to the evidence itself or to the process involving evidence to be presented to an extradition Judge….”
At paragraph 30, Justice Koenigsberg considered the Treaty and noted that it contained no requirement for certification.
The decision of the learned Judge may be found at paragraph 43, where it was decided that the fugitive’s rights were infringed.
Some English Cases
• R. Governor of Pentonville Prison Exp. Kirby [1979] 2All ER
In this case the applicant was arrested in England pursuant to a warrant under the Fugitive offenders Act 1967 for offences allegedly committed in Canada.
At the committal proceedings, the Magistrate admitted as evidence an authenticated deposition of evidence given on oath by a chartered accountant. The books and accounts were not produced. The evidence would not have been admissible in evidence in England.
The applicant was committed to await his return to Canada. He applied for a Writ of Habeas Corpus. The Canadian Government relied on s. 11(1)(a) of the 1967 Act.
The Queens Bench Division held that s. 11(1) of the 1967 Act was merely an enabling provision Justice Croom-Johnson referred to ss. 7(2) and (5), sections equivalent to our ss. 12(2) and (4).
He then observed:
“Both the procedure laid down in s.7 (2) and the standard of proof implied in s. 7(5)(a) clearly contemplate that it is English rules of Evidence that have to be applied in the course of committal proceedings”.
Justice Croom-Johnson then considered the submission on behalf of the Canadian Government as to the effect of s. 11(a) and (b).
In any proceedings under this Act:
(a) a document duly authenticated which purports to set out evidence given on oath in a designated commonwealth country ……shall be admissible as evidence of matters stated therein.
(b) a document duly authenticated which purports to have been received in evidence …..in any such country shall be admissible in evidence…..”
Justice Croom-Johnson rejected the submission on behalf of the Canadian Government that authenticated evidence became admissible even if it received the English rules of evidence and said at p. 1099 d-e of the Report:
“In my view this cannot be right. It would mean that in a deposition or an affidavit the most blatant and unconfirmed hearsay would have to be allowed in.
What s. 11 is dealing with is the way of presenting evidence to the committing court. Since witnesses in proceedings of this type cannot be expected to travel all the way from a foreign country to the place of committal and documentary evidence of what they would say and exhibit is therefore to be allowed, safeguards have to be imposed to make sure that only authenticated evidence as provided for by s. 11 is to be allowed in and not documents or exhibits in any form. The section is dealing with procedure and method but not with admissibility.
The right view of the expression at the end, for example, of s. 11(1)(a) that the documents shall be admissible as evidence of the matters stated therein is that this is an enabling provision allowing documents with due authentication to be put before the Magistrate so that he may receive them knowing that they are vouched for by the country from which they purport to come, and he may therefore have regard to them for the purposes of the committal proceedings. But it does not mean that anything which is in that document, regardless of whether or not it complies with the ordinary rules of evidence which would be applied in the committing court, shall be considered by the magistrate.
• R. v. Governor of Brixton Prison, ex p Levin
In this case the appellant was alleged to have used a computer terminal in St. Petersburg, Russia, to gain unauthorized access to a computerized fund transfer service of a bank in New Jersey, USA, and make fraudulent transfers of funds from the bank of accounts which he or his associates controlled. He was charged before a Federal District court in the United States with the Federal offences of wire fraud, bank fraud and misuse of computers and arrested in the United Kingdom on a provisional warrant issued at the request of the United States government
It was there held that-
For the purposes of the 1984 Act extradition proceedings were criminal proceedings since s. 9(2) of and para 6(1) of Sch. 1 to the Extradition Act 1989 required that extradition proceedings should be conducted as nearly as may be as if they were committal proceedings before magistrates; since such committal proceedings were criminal proceedings it followed that the normal rules of criminal evidence and procedure applied to extradition proceedings
• R. V Governor Of Brixton Prison Ex Parte Saifi The Times, January 24 th 2001.
In this case, the defendant appeared before a metropolitan stipendiary magistrate pursuant to a request for extradition by the Union of India on a charge of murder and conspiracy to murder
The defendant applied for a writ of habeas corpus, contending that Saifi’s statement in English was inadmissible secondary hearsay evidence.
Judgment was given for the fugitive having regard to the appearance of bad faith and unfairness surrounding the circumstances in which the accusations of murder and conspiracy were made and to the tainted nature of the evidence relied on, including Saifi’s repeated retractions of the evidence recorded by the magistrate, there was insufficient evidence on which the magistrate could fairly commit the defendant.
Summary of emerging principles
1. Although the extradition hearing is not a trial, it must conform to the principles of procedural fairness that govern all judicial proceedings in this country, particularly where a liberty or security interest is at stake. See USA v. Cobb (2001) 152 C.C.C. (3D) 270 , Justice of Appeal Rosenberg confirmed that there was no doubt that extradition proceedings were susceptible to Charter provisions.
2. The Court is required to balance the interests of the State and the individual. See Yang.
3. The requirements of due process vary according to the type of proceeding under consideration. See Kindler v. Minister of Justice [1991] 2 S.C.R. 779 , which was cited for this very principle in the case of United Kingdom v. Tarantino (2003) 177 CCC 284 at paragraph [48]:
“ The principles of fundamental justice guaranteed under s. 7 of the Charter vary according to the context of the proceedings in which they are raised.”
4. Extradition performs an important role in organized societies. See USA v. Cotrini (1989) 48 C.C.C. (3d.) 193 at p. 215:
“ ..The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal in all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries..”
5. The extradition hearing is merely a screening device and in that way is distinguishable from the trial in the Requesting State where the guilt or innocence of the fugitive will be determined. See The Republic of the Phillipines v. Pacificador 83 C.C.C. (3d) 210 where Doherty, J.A. remarked that the judicial phase of the extradition process is but part of the entire process. At paragraph 223, Doherty, J.A. describes as “ helpful” the analogy between the extradition hearing and the preliminary enquiry in domestic law and observed:
“ Both serve as a screening devices. They are designed to ensure that persons are not placed in jeopardy where their accuser cannot show that there is a case to answer. Both procedures also preserve to the appropriate authority the ultimate adjudication of allegations.”
• The role of the judicial officer at the extradition hearing is a modest one, and is primarily to ensure the identity of the person sought and to protect that person from being surrendered for conduct that we would not recognize as criminal. See Yang p.359.
• In determining the constitutional validity of the extradition process, the Court must take account of the international principles of reciprocity, comity and accommodation of differences of other territories. See Kindler v. Minister of Justice [1991] 2 S.C.R. 779 :
“while the extradition process is a important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair. Extradition procedure, unlike the criminal procedure, is founded on the concept of reciprocity, comity and respect for differences in other jurisdictions.
This unique foundation means that the law of extradition must accommodate many factors foreign to our internal criminal law. While our conceptions of what constitutes a fair criminal law are important to the process of extradition, they are necessarily tempered by other considerations.
Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodate differences between our system of criminal justice and the systems in place in reciprocating states. The simple fact is that if we were to insist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate. Canada, unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser. For this reason, we require a limited but not absolute degree of similarity between our laws and those of the reciprocating state. We will not extradite for acts which are not offences of this country. We sign treaties only with states which can assure us that their systems of criminal justice are fair and offer sufficient procedural protections to accused persons. We permit our Minister to demand assurances relating to penalties where the Minister considers such a demand appropriate. But beyond these basic conditions precedent of reciprocity, much diversity is, of necessity, tolerated.
• In the context of extradition proceedings, the principles of fundamental justice entitle the fugitive to certain protections, including a hearing before an unbiased decision-maker, the right to be present and the right to know the case against him or her. See Yang.
REASONING AND DECISION
1. The task of this Court is to determine the constitutional validity of s.19A (2) (b) of Act #12 of 2004. In specific terms, the Court must consider whether s.19A (2)(b) offends s.5(1) and (2) of the Constitution, in that by its provisions the impugned section “ abrogates, abridges or infringes or authorizes the abrogation, abridgement or infringement” of any right enshrined at s. 4 of the Constitution.
2. It is elementary that the Constitution is the supreme law and any law inconsistent therewith must be declared void to the extent of its inconsistency.
3. I am not therefore persuaded that I am empowered , if I find the impugned section to be caught by s. 5, of the Constitution to “read down” the section, as was done by the learned Judge in Bourgeon.
4. Whether s.19A(2)(b) is found to offend s. 5 depends on a finding that it authorizes the abrogation, abridgement or infringement of s.4(a) by authorizing the deprivation of the Applicant’s liberty without due process and in particular by authorizing the Applicant’s arbitrary detention and/or depriving him of a right to a fair hearing in accordance with the principles of fundamental justice and/or depriving him of protective procedural provisions.
5. It was therefore common ground in this case that I needed to consider whether s.19A(2)(b) would or could result in the Applicant being deprived of his liberty without due process, in the course of the extradition proceedings, which are in progress against him before Magistrate Connor.
6. As a second limb to this case I am called upon to consider whether s.19A(2)(b) places the Applicant as fugitive in a position of inequality before the law contrary to s. 4(b) of the Constitution .
7. Lord Millette in Thomas v. Baptiste, alluded to the changing nature of the requirement of due process. His Lordship also linked the concept of due process to procedural fairness and a fair trial.
8. Guided by the persuasive authorities of the Canadian decisions, it is clear that the content of the due process clause in respect of the extradition hearing differs from that pertaining to a criminal trial in domestic law. In considering the principles of due process in relation to an extradition hearing I must take into account the international principles of reciprocity, comity and accommodation of differences of other territories. Specifically this means that the Court ought not to insist on common law rules of evidence and procedure so as to frustrate the request of a foreign territory with which the Executive in its wisdom has concluded a treaty.
9. I am also guided by the statement in Yang that the principles of fundamental justice entitle the fugitive to certain protections, including a hearing before an unbiased decision-maker, the right to be present and the right to know the case against him.
10. I must therefore consider whether the impugned section infringes any of these and the answer is clearly in the negative. The impugned section is relevant to the evidence which finds itself before the magistrate and theoretically it entitles the Requesting State to adduce any document in any form in accordance terms of any treaty that may be made in the future. This opens wide the possibility that that the evidence against the fugitive may undergo subtle or glaring metamorphosis as the case goes along. In my view this is what occurred in Oretega
11. The Court must therefore choose between the reasoning in Oretega and that in Yang. Both authorities are of persuasive value only and I am free to depart from either.
12. Justice Koenigsberg observed , in Oretega , that the Courts in Yang and Ebke did not grapple with or ultimately decide “. whether there is a constitutional requirement that the evidence proffered under s.32(1) (b) be available for trial..”. Oretega is the first and most recent authority on point and the reasoning of Justice Koenigsberg is compelling particularly in so far as it highlights, by reference to the decision in Taratino and indeed in Yang itself, the importance of the safety net of certification.
13. Whereas I respectfully agree with the learning on the importance of certification, I am persuaded the principles enunciated by Justice Rosenberg in Yang as to the requirements of fundamental justice in extradition matters. The principles were identified as including a hearing before an unbiased decision-maker, the right to be present and the right to know the case against him.
14. It is to be observed that Justice Koenigsberg did not attempt to measure the case before her against these principles or to opine that those identified by Justice Rosenberg ought to be supplemented. Although these principles are not exhaustive, I have found them to be a reliable gauge with which to measure the instant application. In the premises, the stated principles are not infringed by the impugned section. Section 19A(2)(b) clearly does not authorize a hearing by a biased tribunal, or deprive the fugitive of the right to be present or of the right to know with sufficient particularity the case against him. It appears to me that the Applicant falls beyond the reach of these principles.
15. In the event that I am wrong recent pronouncements of the Judicial Committee exhort the Court to consider whether the legal system as a whole is fair. The Court cannot close its eyes to the provisions of the existing treaty between the USA and Trinidad and Tobago. It seems that Article 8 of the Treaty provides the safety net. The words of the impugned provision must in the absence of a clear intention give effect to and not defeat the international obligations of Trinidad and Tobago. In so far as the impugned provision renders admissible “… the contents of the documents that are submitted in conformity with the terms of a treaty with a declared foreign territory…” this Court is required to consider whether “. submitted in conformity with the terms of a treaty..” ought to be restricted to Article 7, which requires the submission of documents or whether the term should be given the wider meaning of “ in conformity with the entire treaty including Article 8”.
16. In my view, the answer is inescapable. Authorities cited supra establish the principle that extradition treaties and statutes alike are to be given a liberal interpretation. Even if it is given a literal interpretation, “ conformity” in the context of s. 19A(2)(b) is required with the whole and not any specified part of a treaty.
17. In the case of requests by the USA, therefore it is my view that an adequate safety net is created by article 8. I am of the view and therefore hold that documents submitted under s. 19A(2)(b) must be screened according to the provisions of Article 8 of the USA\TT Treaty.
18. Redress under s. 14 must be specific. Applicants are required to show their locus standi . I find no likely infringement of s. 4(a) in respect of the Applicant his motion on this ground must fail.
19. In respect of the ground under s.4(b), in my view it is clear that s. 19A(2)(b) does not infringe an equality provision. By imposing the more onerous standard of reliability, it may be arguable that s. 19A(2)(c) is discriminatory against the fugitive. The application herein is however directed to s. 19A(2)(b) and not s. 19A(2)(c). Accordingly, the ground under s.4 (b) must also fail.
ORDER:
The Motion herein is dismissed. The Applicant to pay the costs of the Respondent.
Dated the 28 th day of July, 2004.
M. Dean-Armorer
Judge.
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