SUPREME COURT OF CANADA
United States of America v. Shephard,  2 S.C.R. 1067
The United States of America Appellant; and
Raymond George Shephard Respondent.
1976: May 17 and 18; 1976: May 5.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Extradition — Affidavit of co-conspirator — Sufficiency of evidence — Application of rules of criminal law in the extradition judge's exercise of discretion — Extradition Act, R.S.C. 1970, c. E-21, ss. 10(1), 13, 18 — Criminal Code, R.S.C. 1970, c. C-34, s. 475(1).
Appellant requested that a warrant be issued under the Extradition Act for the apprehension of respondent in respect of extradition crimes committed in the United States and Canada in violation of the narcotic drug laws of the United States. The only evidence produced consisted of the affidavit of one Herrmann, a co-conspirator. Hugessen J., sitting as an extradition judge, refused the extradition: according to him, he had to apply the test to the effect that the judge can and should intervene to "withdraw the case from the hands of the jurors" when the evidence is "so manifestly unreliable". The Federal Court of Appeal dismissed an application made pursuant to s. 28 of the Federal Court Act for the review of this decision. Hence the appeal to this Court.
Held (Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting): The appeal should be allowed.
Per Martland, Judson, Ritchie, Pigeon and de Grandpré JJ.: It was admitted that under s. 18 of the Extradition Act the trial judge properly relied on the test which is applied in jury trials when there is a motion to obtain a directed verdict. When the evidence is direct and inconsistent with any other rational conclusion than that the accused is the guilty person, it is not the judge but the jury which is seized with the duty to weigh the evidence for the purpose of determining whether or not it is credible. If the function of an extradition judge is equivalent to that of a judge in a similar case, it follows that credibility is not within his sphere. In the present case, there was overwhelming evidence in the Herrmann affidavit to support the charge of conspiracy.
Per Laskin C.J. and Spence, Judson and Beetz JJ., dissenting: An extradition judge is in the same situation
as a judge who must decide whether there is evidence upon which a reasonable jury, properly charged, could bring in a verdict of guilty. His discretion is not confined only to those cases where the evidence is wholly circumstantial: his discretion extends to consideration of whether the evidence is of such a dubious nature as to be dangerous. In the present case, it is so because it was given by a witness who was acting in hope of a reward.
There is cast upon the extradition judge an extra burden of caution, since his decision might have the effect of putting the accused under the jurisdiction of the courts of another country. Even the procedures by which the evidence on which the application was based may not be revealed to the extradition judge.
[R. v. Comba,  S.C.R. 396; R. v. Knox,  2 C.C.C. 348; R. v. Gaudet,  2 C.C.C. 418; R. v. Pearce (1963), 40 C.R. 75; R. v. Sawrenko,  4 C.C.C. (2d) 338; Puerto Rico v. Hernandez,  F.C. 1206, 15 C.C.C. (2d) 56, distinguished; Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136; Re Lattimer (1906), 10 C.C.C. 244; Girvin v. The King (1911), 45 S.C.R. 167; R. v. Atwood and Robbins (1788), 1 Leach 464, 168 E.R. 334; R. v. Pipe (1966), 51 Cr. App. R. 17; R. v. Caulfield (1973), 10 C.C.C. (2d) 539; R. v. Williams (1975), 21 C.C.C. (2d) 1, referred to.]
L. P. Landry, Q.C., for the appellant.
David Linetsky and Sidney Leithman, for the respondent.
The judgment of Laskin C.J. and Spence, Dickson and Beetz B. was delivered by
SPENCE J. (dissenting)—This is an appeal from the judgment of the Federal Court of Appeal pronounced on September 25, 1974.
The Federal Court of Appeal considered an application to review and set aside the decision of Hugessen A.C.J. pronounced as a Commissioner under the provisions of the Extradition Act, R.S.C. 1970, c. É-21.
The respondent had been arrested on the information and complaint of Guy David, an R.C.M.P. officer, that the said respondent was a fugitive criminal of the United States of America and had been accused of crimes committed within the jurisdiction of the Eastern District of Wisconsin. The indictment issued by the grand jury in Wisconsin and which was part of the warrant for the respondent's arrest, accused him of conspiracy, with others both co-accused and co-conspirators not accused, to commit acts in violation of the laws of the United States which may be briefly described as the importation and distribution of narcotic drugs.
In accordance with the provisions of s. 13 of the said Extradition Act, which reads:
13. The fugitive shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.
the respondent was brought before Hugessen A.C.J. for a hearing. The said s. 13 provides that the judge shall hear the case in the same manner as nearly as may be as if the fugitive was brought before a justice of the peace charged with an indictable offence committed in Canada. Section 18 of the Extradition Act gives much more explicit directions and provides:
18. (1) The judge shall issue his warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,
(a) in the case of a fugitive alleged to have been convicted of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, prove that he was so convicted, and
(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify his committal for trial, if the crime had been committed in Canada.
(2) If such evidence is not produced, the judge shall order him to be discharged.
The only evidence produced before Hugessen A.C.J. in support of the application for an order for the extradition of the respondent was an affidavit
purporting to be sworn by one Albert E. Herrmann which in thirty long paragraphs outlined the alleged conspiracy in very considerable detail. In the first paragraph of that affidavit, however, the said Herrmann deposed as follows:
1. I am a citizen of Germany, and last arrived in the United States of America in May, 1973, at Milwaukee, Wisconsin. On June 6, 1973, I was arrested by agents of the Drug Abuse Law Enforcement office, and I have been indicated [sic] for narcotics offenses in the United States District Court for the Eastern District of Wisconsin. An attorney has been appointed to represent me, and I am presently free on bond. I make this affidavit freely and voluntarily with full knowledge of my legal rights after the United States Attorney's office promised to dismiss all but one of the narcotics charges against me, which would be held open until after I had testified before the Grand Jury, and in any subsequent criminal prosecutions arising out of my Grand Jury testimony. The final narcotic charge against me would be dismissed upon my completion of all of my court appearances and testimony in criminal prosecutions against my co-conspirators.
so that the application to Hugessen A.C.J. was to order the extradition of the respondent on the sole basis of an affidavit made by a person who alleged he was a co-conspirator and who volunteered that he had been indicted for these offences, that an attorney had been appointed to represent him, that he was free on bond and that the United States Attorney's office had promised to dismiss all charges but one against him after his testimony before the Grand Jury, and the last charge after he had completed his court appearance in the criminal prosecution against his co-conspirators. To put it briefly, Herrmann was not only an accomplice but was an accomplice who was testifying, admittedly for reward, for his own freedom.
Hugessen A.C.J. stated the test in s. 18(1)(b) of the Extradition Act, which I have cited above, saying that evidence should be adduced which would justify the committal of the respondent for trial if the alleged crime had been committed in Canada. To determine what evidence would justify
a justice upon a preliminary hearing committing an accused person for trial, Hugessen A.C.J. turned to s. 475 of the Criminal Code which provides:
475. (1) When all the evidence has been taken by the justice he shall,
(a) if in his opinion the evidence is sufficient to put the accused on trial,
(i) commit the accused for trial,
(b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial.
It should be noted that the important words are "if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial". Those words have been interpreted in at least three different fashions by different courts. The first test and probably that requiring a little weaker case is that if the magistrate believes the accused is probably guilty of the crime, he should commit the accused for trial. The second and third tests, and I agree with Hugessen A.C.J. that they are to all intents and purposes the same, are that the accused should not be committed for trial if no jury properly charged and acting judicially could convict. the accused upon the evidence adduced, or that the trial judge upon the production of that evidence before the jury would be under a duty of directing the jury to bring in a verdict of acquittal. The latter would be the proper form of procedure, although it is often spoken of as "taking the case from the jury".
Hugessen A.C.J. then stated:
Put in another way, my function is not to weigh the evidence to decide whether or not I believe it, but rather to determine whether there is evidence upon which a reasonable jury, properly instructed in law, could bring in a verdict of guilty, and this, of course, means that if it is the sort of case where, as a trial judge, I would feel obliged to direct a verdict of acquittal, then, as an extradition judge, I should refuse to commit.
The learned extradition commissioner then expressed the view that there is a considerable body of jurisprudential authority upholding the right of the trial judge to intervene and withdraw the case from the jury when the Crown's evidence is so manifestly unreliable or so doubtful or tainted in nature as to make it dangerous and unjust to put the accused to his defence on the basis thereof. Hugessen A.C.J. cited as an authority for that proposition R. v. Comba, where Duff C.J. said at p. 397:
We agree with the majority of the Court of Appeal, whose reasons for their judgment we find convincing and conclusive, that the learned trial judge ought, on the application made by counsel for the prisoner at the close of the evidence for the Crown, to have told the jury that, in view of the dubious nature of the evidence, it would be unsafe to find the prisoner guilty, and to have directed them to return a verdict of acquittal accordingly. It is not, and could not, with any plausibility, be suggested that the case for the Crown was in any way strengthened or improved by the evidence put before the jury on behalf of the defence.
R. v. Comba was an unusual case. The charge was murder of a young girl and the evidence was altogether circumstantial. At the close of the Crown's case, the defence had moved for a directed verdict which motion the learned trial judge had refused. The trial then proceeded with address of counsel, no evidence being adduced on behalf of the defence. The jury's verdict was guilty. Upon the matter being considered by the Court of Appeal for Ontario, it was demonstrated that during the course of the trial the jury, despite the trial judge's careful instructions, had been permitted to separate and all members of the court were of the opinion that at least a new trial should be ordered. The relief sought by the appellant in his notice of appeal was only that such new trial be granted but upon counsel for the appellant opening his appeal he took the position that the conviction should be quashed and the appellant released and applied for leave to amend the notice of appeal to so provide. Such leave was granted by the Court of Appeal with Latchford C.J. most vigorously dissenting.
Each member of the majority gave reasons for judgment but the reasons of Middleton J.A. were much the most extensive and were concurred in by the other members of the majority. Middleton J.A. said at p. 203, "There was no direct evidence indicating the criminal. The only evidence that can be adduced is purely circumstantial." He then proceeded to examine such circumstantial evidence and applying the well-known test in Hodge's Case, demonstrated that such evidence was as consistent with the innocence of the accused as with his guilt. At p. 210, the learned justice on appeal said:
In the next place, it must be borne in mind that counsel for Comba moved to have the case withdrawn from the jury. If I am right in the opinion that this motion should have been granted, then it could not at that time have been known whether Comba would testify or not.
It is this statement that Duff C.J. referred to in the concluding paragraph of his reasons which I have quoted above.
Counsel for the appellant has submitted that R. v. Comba must be confined to the cases where circumstantial evidence alone is adduced against the accused, and that only in such cases is a judge justified in directing a verdict or, to put it otherwise, withdrawing the case from the jury. He submits that if there is direct and not merely circumstantial evidence, then no matter how disreputable that evidence be it is the duty of the jury and not the judge to weigh that evidence and determine whether or not it is credible and whether the jury should base its verdict upon it.
It is true that in Comba the evidence was wholly circumstantial. I am, however, of the opinion that evidence of a "dubious nature" which would make it unsafe for the jury to register a conviction may be of such dubious nature because it is circumstantial and as consistent with the innocence of the accused as with his guilt, or because it is "tainted and unreliable" as Hugessen A.C.J. described the evidence in the present case. There is but little authority in reference to the task of an extradition commissioner in applying s. 18(1)(b) of the Extradition Act but one case where a very similar problem was canvassed is Re Commonwealth of Puerto Rico and Hernandez.
There an application for an extradition order came before Honeywell, County Court Judge, who went over the evidence most carefully and particularly that which dealt with identification of the accused man whose extradition was sought. The attack made upon that evidence was not as to the truthfulness of the witness who testified viva voce and was cross-examined on his evidence, but whether his identification was so slim that it stood no chance of convincing a jury beyond reasonable doubt. Honeywell, Co.Ct.J., refused to order the extradition of the accused man.
An application to review was made by the Commonwealth of Puerto Rico to the Federal Court of Appeal and that court first held that s. 28 of the Federal Court Act did not give it power to carry out the review in the circumstances. This Court, reversing the Federal Court of Appeal, held that that Court did have jurisdiction and referred the matter back to the Federal Court of Appeal for hearing on the merits. Thurlow J. gave the judgment for the Court dismissing the application to review and set aside the decision of the extradition commissioner. After citing the various tests which I have referred to above, Thurlow J. said at p. 1211:
Each of these tests or ways of putting a test may, as I see it, be more or less useful to a justice or an extradition Judge, depending on the kind of a case presented but it must, I think, be remembered that whichever way the test is put it can serve only as an aid to the justice or Judge in forming an opinion on the evidence, which the statute directs him to apply, as to the sufficiency of that evidence to put the accused person on trial. For this purpose I should have thought that the minimum requirement would be evidence upon which, if unanswered at the trial, a jury acting reasonably might convict but the statute does not prescribe a standard. It leaves the standard of sufficiency to the judgment of the justice or Judge and it appears to me that so long as his conclusion is supportable as being a reasonable conclusion on the evidence before him, it is not essential that it should appear that he has applied any particular or defined standard. In particular, I do not think there is any cause for complaint that a particular standard has not been applied if the standard actually applied is a lower or less demanding one and the justice or Judge has
nevertheless concluded that the evidence was sufficient.
He then proceeded to review the evidence and said at pp. 1214:
After having read and reread the evidence of the witnesses Atilano and Ortiz, and after hearing the very able argument of counsel for the Commonwealth of Puerto Rico I am not persuaded that the evidence was reasonably sufficient to warrant putting the respondent on trial. Indeed, I find it inconceivable that a person should be put on trial on such flimsy evidence as a purported identification made a year after the event by a person who did not previously know the accused and whose only opportunity to observe him was a fleeting one from a distance of some 60 ft., if indeed he ever got that close. The evidence of the witness having selected the respondent's identification card is not in itself evidence implicating the respondent, and in the circumstances as described it tends to weaken rather than to strengthen the identification made by Atilano at the hearing since it is the person shown in the picture which the witness had ample opportunity to examine, rather than the fleeting view of the gunman that the witness would thereafter tend to remember. Nor was there anything else to implicate the respondent or corroborate such identification.
This conclusion is sufficient to dispose of the application for if the Court is not itself persuaded that the evidence warranted committal still less is it persuaded that it was not open to the learned extradition Judge in exercising his discretion to regard the evidence as insufficient.
(The underlining is my own.) Thurlow J. said at p. 1215:
It was also urged that the learned Judge erred in law in having weighed the testimony and thus usurped the function of the jury to determine the credibility of the witnesses and the value of their testimony. I do not regard it as possible, however, for an extradition Judge to perform his function without having some regard for the obvious weight or lack of weight of testimony put before him. He must, I think, weigh it in a rough scale to determine its usefulness at a trial and what conclusions the whole or parts of it would support. Here the learned Judge on more than one occasion mentioned that it was not his function to weigh the evidence but simply to determine its sufficiency and I do not think his conclusion can be regarded as having proceeded from
any misdirection or error of law as to the function he was performing. He applied the "probably guilty" test and concluded that the evidence did not show that the respondent was probably guilty, a conclusion which, with respect, I share, and as that is the lowest of the several standards which I discussed earlier in these reasons it can scarcely be said that the conclusion could have been anything but the same had any of the more stringent standards of sufficiency been applied.
It is my view that Hugessen A.C.J. purported to act exactly in accordance with the above statement of Thurlow J. in giving reasons in the present appeal when he said:
A finding that evidence is "manifestly unreliable" or "dubious" does, of course, necessarily involve some sort of weighing process, not, however, for the purpose of determining whether such evidence "proves" the charge but rather for the purpose of determining whether it has any weight at all which could prove the charge. As stated by Thurlow J. in the case of HERNANDEZ (above cited), the extradition judge must weigh the evidence "in a rough scale, to determine its usefulness at a trial and what conclusions the whole or parts of it would support".
With respect, I am in complete agreement with the statement of Thurlow J. and I am ready to approve Hugessen A.C.J. having followed that principle. I am of the opinion that the trial judge, upon considering whether he should direct a verdict at the close of the Crown's case, has a discretion to direct a verdict not confined only to those cases where the evidence was wholly circumstantial. Rather, his discretion is, in the words of Chief Justice Duff, "whether the evidence is of such a dubious nature as to be dangerous". In Puerto Rico v. Hernandez, supra, the evidence was dubious and dangerous to use as a basis for conviction because the witness purported to make observations which the learned trial judge believed were impossible. In the present case, the evidence is dangerous and dubious because it was given by a witness who was quite evidently acting in hope of a reward which had been promised to him in detail. I use Thurlow J.'s words in Hernandez, "I find it inconceivable that a person should be put on trial on such flimsy evidence ...".
Counsel for the appellant has cited various cases in which appellate courts have reviewed and reversed the decisions of trial court judges to direct verdicts but an examination of each of those cases would indicate that the trial court judges in such cases were weighing the evidence for the purpose of determining the credibility. So, in R. v. Robichaud, the Appeal Division of the Supreme Court of New Brunswick reversed the trial judge when he had directed a verdict on the basis that the evidence did not show beyond reasonable doubt that the accused man had used more than sufficient force to repel an assault and did now show beyond a reasonable doubt the cause of death. There was no question of credibility whatsoever. The evidence was given by two young boys whose credibility was not doubted. It was simply a question of whether that evidence showed beyond a reasonable doubt the factors necessary to establish the ingredients of the offence of manslaughter. With respect, I am of the opinion that the Appeal Division was quite correct in its view that the weight of that evidence was certainly a matter for the jury and no directed verdict should have been issued. The case, in my opinion, is not applicable to the present situation and I am of the opinion that Puerto Rico v. Hernandez is.
There is another factor. The magistrate considering whether he should commit an accused person for trial knows that if he does commit that accused then he will be tried in accordance with the provisions of the Canadian Criminal Code, Canadian Bill of Rights and, in a procedure where the accused's interests will be accorded all proper protection. An extradition commissioner, and this has no particular application to the present case, may, on the other hand, consider whether he should order the extradition of the arrested person to a jurisdiction of which he has no knowledge of the prosecution procedures or doctrines or traditions. Moreover, the extradition commissioner has no knowledge of the procedures which were involved in obtaining the evidence which is adduced before him and upon which he is asked to base his order for extradition. There is, therefore, in my view,
cast upon the extradition commissioner an extra burden of caution.
In Auger v. Dubeau, at p. 397, Brossard J. said:
It matters little whether the accused that the Judge has before him is or is not a Canadian citizen, the foreigner being entitled to the benefit of the same protection in a criminal matter as the citizens of the country.
The Judge must also take into account the fact that his decision might have the effect of taking the accused away from the jurisdiction of the Courts of the country where he is and putting him again under the jurisdiction of the Courts of another country and consequently, in conformity with the requirements of s. 13 of the Act, he must take into account the fact that his decision may, in a foreign country even if it be a friend, be interpreted and used against the accused by proceeding in a manner different from what it might be in Canada. So too, the Judge to whom a petition for extradition is presented should grant it only on legal and certain evidence that satisfies him that it is a matter for trial.
For these reasons, I would dismiss the appeal and confirm the decision of the Federal Court of Appeal.
The judgment of Martland, Judson, Ritchie, Pigeon and de Grandpré JJ. was delivered by
RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Federal Court of Appeal dismissing an application made pursuant to s. 28 of the Federal Court Act for the review of a decision of Hugessen A.C.J. of the Superior Court of Quebec sitting as an extradition judge under The Extradition Act, R.S.C. 1970, c. E-21 whereby he held that there was no evidence before him to justify him in issuing the warrant applied for under The Extradition Act for the apprehension of the respondent in respect of extradition crimes committed in the United States and Canada in violation of the narcotic drug laws of the United States.
The relevant provisions of The Extradition Act read as follows:
10. (1) Wherever this part applies, a Judge may issue a warrant for the apprehension of a fugitive on a
foreign warrant of arrest, or an information or complaint laid before him, and on such evidence or after such proceedings as in his opinion would, subject to this Part justify the issue of his warrant if the crime of which the fugitive is accused, or of which he is alleged to have been convicted had been committed in Canada.
18. (1) The judge shall issue his warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law .. .
(b) in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify his committal for trial, if the crime had been committed in Canada.
Section 13 of the Act which establishes the procedure to be followed at the extradition hearing provides that:
The fugitive shall be brought before a Judge who shall, subject to this Part, hear his case in the same manner as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.
(The underlining throughout is my own.)
These sections of the Act must, I think, be read in conjunction with s. 475 of the Criminal Code which defines the duty of a "justice" in deciding whether or not an accused should be committed for trial. The section provides:
475. (1) When all the evidence has been taken by the justice he shall,
(a) if in his opinion the evidence is sufficient to put the accused on trial,
(i) commit the accused for trial, or .. .
(b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial, (The italics are my own.)
In applying these sections to the case before him, the learned judge sitting as an extradition judge, adopted the following test:
The test laid down by section 18(1)(b) of the Extradition Act is whether the evidence is such as would justify the committal of Mr. Shephard for trial if the alleged
crime had been committed in Canada. In my view, this is the same test as that which is applied at trial, when, at the conclusion of the Crown's case, a motion is made for a directed verdict.
This test was recognized in the unanimous judgment of the Federal Court of Appeal in The Commonwealth of Puerto Rico v. Hernandez. Mr. Justice Hugessen also made reference to the view expressed by the Chief Justice of the North-west Territories (Sifton C.J.) sitting as an extradition judge in the case of re Lattimer where he said at p. 247:
The duty that is laid upon me is to consider as to whether the evidence that has been adduced in the absence of contradiction would be such as to justify a magistrate in a similar case under our law committing him for the purpose of standing his trial; practically it amounts to the same thing as if in a trial with a judge and jury, there was such evidence that the judge would not be justified in withdrawing the case from the jury.
I agree that the duty imposed upon a "justice" under s. 475(1) 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 from 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", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
In the present case, the evidence before the learned extradition judge was an affidavit of one Albert E. Herrmann made in the State of Wisconsin which disclosed that the respondent had been actively engaged in the drug trade in that State. The affidavit not only disclosed that the deponent had been an accomplice of the respondent in the alleged illegal operations of the respondent, but also that he had been indicted for narcotics offences in Wisconsin, and it then continues as follows:
An attorney has been appointed to represent me, and 1 am presently free on bond. I make this affidavit freely and voluntarily with full knowledge of my legal rights after the United States Attorney's office promised to dismiss all but one of the narcotics charges against me, which would be held open until after I had testified before the Grand Jury, and in any subsequent criminal prosecutions arising out of my Grand Jury testimony. The final narcotic charge against me would be dismissed upon my completion of all of my court appearances and testimony in criminal prosecutions against my co-conspirators.
In dealing with the grounds upon which the judge sitting at a trial should withdraw the case from the jury, the learned trial judge had occasion to say:
... it seems to me that there is now a considerable body of jurisprudence and authority to the effect that the trial judge can and should intervene to withdraw the case from the hands of the jurors where the Crown's evidence is so manifestly unreliable or of so doubtful or tainted a nature as to make it dangerous and unjust to put the accused to his defence on the basis thereof, (The italics are my own.)
For this proposition the authority cited is a passage from the judgment of Sir Lyman Duff in this Court in R. v. Comba, where he said at p. 397:
... the learned trial judge ought, on the application made by counsel for the prisoner at the close of the evidence for the Crown, to have told the jury that, in view of the dubious nature of the evidence, it would be unsafe to find the prisoner guilty, and to have directed them to return a verdict of acquittal accordingly.
It is to be observed that there was no suggestion in the Comba case that any of the evidence called by the Crown was either tainted or unreliable. It came from witnesses whose integrity was at no time put in question and who testified as to a variety of circumstances which had excited enough suspicion against the accused to occasion his arrest and trial but which taken together did not establish his guilt in accordance with the accepted
standards of proof in such cases which are described by Duff C.J. in the following passage:
It is admitted by the Crown, as the fact is, that the verdict rests solely upon a basis of circumstantial evidence. In such cases, by the long settled rule of the common law, which is the rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person.
In the present case the Herrmann affidavit contained direct evidence which was inconsistent with any other rational conclusion than that Shephard had personally committed a criminal act, but the trial judge rejected his evidence as unworthy of belief whereas in the Comba case the evidence in question which was accepted as true was entirely circumstantial and did not meet the test required to support a guilty verdict. In my opinion there is no analogy between the two cases.
The trial judge did not find it necessary to make express reference to any of the cases constituting "a considerable body of jurisprudence and authority" to which he refers but was content with the statement that "a full review of the authorities may be found in the judgment of my brother Ouimet in the case of Dimaulo Ciamarro and Tozzi" an unreported judgment concerning the position of a judge in considering a motion to withdraw the case from the jury at the close of the prosecution evidence.
The judgment in the Dimaulo case is conveniently reproduced as an appendix to the respondent's factum and a consideration of the jurisprudence and authority there cited discloses that the learned judge relied in great measure on certain statements contained in an article by Mr. Glanville Williams in the Criminal Law Review (1965) and also some remarks made by Mr. Popple in his
work on evidence. The Canadian authorities which are cited, (i.e. R. v. Knox, R. v. Gaudet, R. v. Pearce and R. v. Sawrenko) are all cases in which the learned judge found that the evidence which was entirely circumstantial did not satisfy the rule in Hodge's Case, as reiterated by Chief Justice Duff in the Comba case. All these cases are clearly distinguishable from the present one on the same ground as R. v. Comba and in my opinion they do not constitute "a ... body of jurisprudence and authority" affecting the problem in the present case, nor do I regard the observations of the text writers to which reference is made as justifying any conclusion to the effect that the trustworthiness or credibility of the tendered evidence is a matter for the judge rather than the jury.
In his judgment in Dimaulo, Mr. Justice Ouimet also refers to but does not appear to follow, the case of Girvin v. The King, where the then Chief Justice of this Court in my opinion correctly stated the general rule governing the decision of a judge to withdraw a case from the jury at the close of the prosecution evidence. The chief Justice there said:
I have always understood the rule to be that the Crown, in a criminal case, is not required to do more than produce evidence which, if unanswered, and believed, is sufficient to raise a prima facie case upon which the jury might be justified in finding a verdict.
Mr. Justice Hugessen, in the course of his reasons for judgment, appears to adopt some language found in a practice direction given by Lord Parker, L.C.J., in 1962 Criminal L.R. at p. 160 where he says that:
A submission that there is no case to answer may properly be made and upheld ... when the evidence adduced by the prosecution has been so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.
The learned trial judge appears to treat the words "manifestly unreliable" as synonymous with the word "dubious" as it is used in the Comba judgment, and he also relies on an extract from the judgment of Mr. Justice Thurlow in the Hernandez case, supra, where he said of the duty of an extradition judge:
I do not regard it as possible, however, for an extradition judge to perform his function without having some regard for the obvious weight or lack of weight of testimony put before him. He must, I think, weigh it in a rough scale to determine its usefulness at a trial and what conclusions the whole or parts of it would support.
To the extent that the quotation from Parker L.C.J. could have any bearing on the present inquiry, I think it should be observed that it is in no way binding on this or any other Canadian Court, and I am bound to say that I disagree with the remarks of Thurlow J., if they are intended to mean that the extradition judge is seized with the duty to weigh the evidence for the purpose of determining whether or not it is credible. Credibility in my view must always be a question for the jury and if the function of an extradition judge is equivalent to that of a judge in determining whether or not a case should be left to the jury, it follows that credibility is not within his sphere.
The governing principle was stated by Buller J., as long ago as 1788 when he said in R. v. Atwood and Robbins, at pp. 465-6 that if the ground for objection goes only to the credit of the witness
... his testimony must be received and left with the jury under such directions and observations from the Court as the circumstances of the case may require, to say whether they think it sufficiently credible to guide their decision.
In the present case, Herrmann was, of course, an accomplice and the rule as to "directions and observations" which the Court should give under such circumstances was correctly stated in the judgment of the learned trial judge where he says:
What can I say about this evidence? First of all, it is evidence of an accomplice, and I would, therefore, were I presiding the trial of Shephard, have to instruct the
jury that it would be dangerous for them to convict upon such evidence alone, since there is no shred of corroboration tending to show the commission of an offence. This fact alone would not, of course, be enough to justify a refusal to commit at preliminary enquiry since an instruction that it would be dangerous to convict without corroboration necessarily implies that it would still be possible to do so.
Mr. Justice Hugessen, however, went on to hold in effect that the Herrmann evidence was so manifestly unreliable as to justify him in treating it as "not being sufficient" within the meaning of s. 475(1) of the Criminal Code. In support of this conclusion, the trial judge quoted a passage from a judgment of Parker L.C.J. in the case of R. v. Pipe, at p. 21, where that learned judge was careful to limit his observations to the circumstances of the particular case before him. The trial judge appears to interpret the passage which he cites from that case as meaning that where a man is not only an accomplice but also one against whom proceedings have been brought and not concluded, his evidence may be so suspect as to warrant a judge in withdrawing the case from the jury, but it appears to me to be unnecessary to consider the Pipe case in any detail because of the concession made by Mr. Justice Hugessen, rightly in my view, where he said:
I am prepared to concede that the case of PIPE goes further than the Canadian practice and that, in this country, the mere fact that an accomplice has charges pending against him does not render bad a conviction based upon the testimony of such accomplice.
The learned trial judge, however, went on to cite the unreported judgment of his brother Shorteno in the case of R. v. Coe as establishing that evidence such as that of Herrmann "is tainted beyond redemption and cannot in a legal sense be weighed by the jury because the witness is no longer a free agent and there is no standard by which his veracity may be tested or estimated."
These observations, made by a single judge in withdrawing the case from the jury, appear to me to constitute the only Canadian authority for Mr. Justice Hugessen's conclusion and it is to be
observed that he reached this conclusion notwithstanding the judgment of the Court of Appeal of Alberta in R. v. Caulfield, where Mr. Justice Cairns observed:
The fact that ... a co-accused, gave evidence under the protection of the Canada Evidence Act, R.S.C. 1970, c. E-10, before being sentenced, but after pleading guilty, does not render the conviction bad. We agree that it is not a practice that should be followed but should be discouraged, but provided the tribunal, if a jury, is warned of the dangers of this, or a Judge sitting alone realizes them, as he did in this case where he warned himself specifically of the dangers of accepting this evidence, it is not fatal to the conviction.
Of even greater significance is the judgment of the Court Martial Appeal Court of Canada in R. v. Williams, a case in which leave to appeal to this Court was refused last December. In that case, McIntyre J., speaking for the majority of the Court, cited the last-quoted passage from Mr. Justice Cairns' judgment and endorsed it in the clearest terms saying: "I accept this as a correct statement of the law". McIntyre J., had already stated that, at p. 11:
While the practice of calling an accomplice against whom unresolved legal proceedings are outstanding is to be frowned upon and even condemned involving as it does grave dangers in that a witness may be provided with a strong motive to colour his evidence or give false evidence I cannot say that such evidence is inadmissible nor that its reception will void a conviction. The effect of the Canadian decisions is to indicate that while such a step may affect the weight of evidence offered in this fashion it does not go to the question of admissibility.
In the same case, Mr. Justice Cattanach, speaking for himself, pointed out that Parker L.C.J. had stated in the Pipe case that an accomplice who admitted his guilt and testified under promise of immunity was nevertheless "a competent witness". As I have indicated, I think it must be accepted that Herrmann was a competent witness and that his evidence was admissible. The only remaining ground for the learned trial judge disregarding it must therefore be based on his view as to the
credibility of the witness, and, as I have said, in my opinion that was a matter for the jury or for the trial judge sitting alone if there were no jury.
In endorsing the opinion of the extradition judge, Chief Justice Jackett rendered the judgment of the Court of Appeal, saying, in part:
I agree with the extradition judge that one type of case where an extradition judge should refuse to grant such a warrant is where a trial judge would feel obliged to direct a jury to bring in a verdict of acquittal and I agree, also, that 'where the Crown's evidence is so manifestly unreliable or of so doubtful or tainted a nature as to make it dangerous or unjust to put the accused to his defence on the basis thereof' is such a case. I do not accept the submission that the latter proposition is restricted to a case of circumstantial evidence.
... I am also of opinion that there is no fair distinction in principle between this case and Puerto Rico v. Hernandez; but I must not be taken as expressing any general opinion or enunciating any new principle concerning affidavits such as the one that was under consideration by the extradition judge.
With the greatest respect I cannot accept the proposition that a trial judge is ever entitled to take a case from the jury and direct an acquittal on the ground that, in his opinion, the evidence is "manifestly unreliable". If this were the law it would deprive the members of the jury of their function to act as the sole judges of the truth or falsity of the evidence and would thus, in my opinion, be contrary to the accepted role of the jury in our legal system.
I also differ from the learned Chief Justice of the Federal Court in that I consider there to be a clear distinction in principle between this case and that of Hernandez. In the latter case Mr. Justice Thurlow characterized the evidence which the extradition judge had found to be insufficient to justify the issuing of a warrant for extradition, in the following paragraph:
After having read and re-read the evidence of the witnesses, Atilano and Ortiz and after hearing the very able argument of counsel for the Commonwealth of Puerto Rico I am not persuaded that the evidence was
reasonably sufficient to warrant putting the respondent on trial. Indeed, I find it inconceivable that a person should be put on trial on such flimsy evidence as a purported identification made a year after the event by a person who did not previously know the accused and whose only opportunity to observe him was a fleeting one from a distance of some sixty feet, if indeed he ever got that close. The evidence of the witness having selected the respondent's identification card is not in itself evidence implicating the respondent, and in the circumstances as described it tends to weaken rather than strengthen the identification made by Atilano at the hearing ... Nor was there anything else to implicate the respondent or corroborate such identification.
It thus appears to me clear that in that case it was held that there was not enough evidence to support a prima facie case against the accused and in fact that it was "inconceivable that a person should be put on trial on such flimsy evidence". It was upon this ground that the extradition judge in that case based his opinion as to insufficiency. In the present case, on the other hand, there was overwhelming evidence in the Herrmann affidavit to support the charge of conspiracy in the "distribution, dispensation and possession with intent to distribute of heroin" and "cocaine" contrary to the laws of the United States, so that the extradition judge's failure to issue an extradition warrant can have had nothing to do with the lack of enough evidence and must have been based entirely on his finding that any evidence given by a witness testifying under the inducements held out to Herrmann was "tainted beyond redemption" and could not in a legal sense be weighed by the jury at all. Such a finding overlooks the well-settled rule that the weighing of evidence is always a matter for the jury under proper instructions from the judge, and it forms no part of the function of a "justice" acting under s. 475 of the Criminal Code or that of an extradition judge in exercising his powers under The Extradition Act.
Having regard to all the above, it will be seen that I am of opinion that the extradition judge erred in principle in the manner in which he purported to exercise the discretion entrusted to him under sections 10(1) and 18(1)(b) of The Extradition Act. I would accordingly allow this appeal and order that the decision of the Federal
Court of Appeal, as well as that of the extradition commissioner, be quashed and that the case be referred back to the extradition commissioner for a new consideration of the evidence in the light of the above.
Appeal allowed. LASKIN C.J. and SPENCE, DICKSON and BEETz JJ. dissenting.
Solicitor for the appellant: Louis-Philippe Landry, Montreal.
Solicitors for the respondent: Blais & Leithman, Montreal.
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 (1974), 19 C.C.C. (2d) 35.
  S.C.R. 396.
  O.R. 200.
 (1838), 2 Lewin 227, 168 E.R. 1136.
  F.C. 1206, 15 C.C.C. (2d) 56.
 (1951), 12 C.R. 167.
 (1952), 111 C.C.C. 390.
  F.C. 1206, 15 C.C.C. (2d) 56.
 (1906), 10 C.C.C. 244.
  S.C.R. 396.
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  2 C.C.C. 418.
 (1963), 40 C.R. 75.
 (1971), 4 C.C.C. (2d) 33.
 (1838), 2 Lewin 227. 168 E.R. 1136.
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 (1966), 51 Cr. App. R. 17.
 (1972), 10 C.C.C. (2d) 539.
 (1975), 21 C.C.C. (2d) 1.