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washington (state of) v. johnson, [1988] 1 S.C.R. 327

 

The State of Washington and the Director of the Vancouver Pretrial Services Centre                                                           Appellants

 

v.

 

Keith Melford Johnson also known as Melford Keith Johnson     Respondent

 

indexed as: washington (state of) v. johnson

 

File No.: 19509.

 

1987: October 20; 1988: February 25.

 


Present: Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain and L'Heureux‑Dubé JJ.

 

on appeal from the court of appeal for british columbia

 

                   Extradition ‑‑ Double criminality rule ‑‑ Fugitive convicted in Washington State ‑‑ Washington crime not importing element of fraud found in similar Canadian crime ‑‑ Whether the double criminality rule requires the elements of the extradition crime to be the same in the requesting and the requested state or whether it merely requires the act charged to be a listed crime in both countries ‑‑ Whether or not extradition judge can infer fraud from non‑return of goods ‑‑ Extradition Act, R.S.C. 1970, c. E‑21, ss. 2, 3, 10(1), 18(1)(a), (b), Schedule 1 ‑‑ Canada‑U.S.A. Extradition Treaty, 1976, arts. 2(1), 9(1), (2) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 283(1), 290(1) ‑‑ Revised Code of Washington, Title 9A, RCW 9A.56.020(1)(a), 9A.56.040.

 

                   Respondent offered to sell an organ for a Washington couple and was given possession of it for thirty days for this purpose. The organ was to be returned on the expiry of that period if it had not been sold. The organ was not sold nor was it returned. The owners were unsuccessful in locating either the respondent or the organ. Respondent was arrested in Seattle, Washington, pleaded guilty to theft in the second degree, and was sentenced to the maximum term of five years' imprisonment. He escaped custody some months later and came to Canada.

 

                   Authorities in the State of Washington commenced proceedings to have respondent extradited pursuant to the Canada‑U.S.A. Extradition Treaty, 1976. Respondent was committed for extradition. His application to the British Columbia Supreme Court for habeas corpus with certiorari in aid to quash the warrant of committal was denied but the British Columbia Court of Appeal allowed his appeal.

 

                   The central issue here was whether the double criminality rule requires the elements of the extradition crime to be the same in the requesting and the requested state or whether it merely requires the act charged to be a listed crime in both countries.

 

                   Held (Beetz, McIntyre and Le Dain JJ. dissenting): The appeal should be dismissed.

 

                   Per Estey, Lamer, Wilson and L'Heureux‑Dubé JJ.: The double criminality rule is conduct‑based. If it can be established that the fugitive's conduct constituted the listed offence of theft in both Canada and Washington, the double criminality requirement is met.

 

                   Respondent was convicted in Washington of theft in the second degree. This crime, on its face, does not include the requirement of fraudulent intent whereas theft in Canada, as defined in the Criminal Code , expressly contains this requirement. Accordingly, on the wording of the relevant statutory provisions, absent further knowledge of the Washington law of theft in the second degree, respondent's conduct would not constitute the offence of theft had it taken place in Canada.

 

                   Double criminality can be established in two ways. First, expert witnesses could be called to testify that while fraudulent intent is not a requirement apparent on the face of the Washington statute, it is nevertheless required by the law of Washington. If this could be shown, then evidence of a conviction under Washington law would constitute evidence that the fugitive's conduct would have amounted to theft under Canadian law. No such expert evidence was led here. Secondly, it could be established that the particular facts underlying the Washington charge would, if replicated in Canada, constitute an offence under either s. 283(1)  or s. 290(1)  of the Criminal Code . This was not done either.

 

                   The extradition judge did not find on the facts evidence of fraudulent intent but inferred such intent from the non‑return of the goods. Such an inference cannot be made because failure to return goods within a reasonable time is consistent with a number of explanations other than fraud. Appellant therefore failed to establish that the respondent was convicted in Washington of an extradition crime. Respondent's committal for extradition was not authorized by s. 18(1)(a) of the Extradition Act.

 

                   Per Beetz, McIntyre and Le Dain JJ. (dissenting): The test for determining whether conduct would constitute a crime in Canada is essentially the same in the case of a convicted fugitive as it is in the case of an accused fugitive: whether the conduct underlying the conviction, as it is described in the material before the extradition judge, could support a conviction of the crime in Canada. Under the applicable test the conduct underlying the conviction in the State of Washington would constitute the crime of theft in Canada because the evidence of that conduct before the extradition judge would support an inference of fraudulent intent.

 

                   The failure to comply with the requirements of Article 9(2) of the Canada‑U.S.A. Extradition Treaty, 1976, did not render the committal invalid because it did not go to the jurisdiction of the extradition judge.

 

Cases Cited

 

By Wilson J.

 

                   Considered: Cotroni v. Attorney General of Canada, [1976] 1 S.C.R. 219; referred to: Government of the Republic of Italy v. Piperno, [1982] 1 S.C.R. 320; In re Nielsen, [1984] 1 A.C. 606; R. v. DeMarco (1973), 13 C.C.C. (2d) 369.

 

By Le Dain J. (dissenting)

 

                   R. v. DeMarco (1973), 13 C.C.C. (2d) 369; Re Von Einem and Federal Republic of Germany (1984), 14 C.C.C. (3d) 440.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 283(1), 290(1), 294.

 

Extradition Act, R.S.C. 1970, c. E‑21, ss. 2, 3, 10(1), 18(1)(a), (b), Schedule 1.

 

Revised Code of Washington, Title 9A, RCW 9A.56.020(1)(a), 9A.56.040.

 

#Treaty on Extradition between the Government of Canada and the Government of the United States of America (Canada‑U.S.A. Extradition Treaty), Canada Treaty Series, 1976, No. 3, art. 2(1), 9(1), (2).

 

Authors Cited

 

La Forest, Gerald Vincent. Extradition To and From Canada, 2nd ed. With the assistance of Sharon A. Williams. Toronto: Canada Law Book, 1977.

 

Shearer, Ivan Anthony. Extradition in International Law. Manchester: University Press, 1971.

 

 

                   APPEAL from a judgment of the British Columbia Court of Appeal, Vancouver Registry CA 003221, June 10, 1985, allowing an appeal from a judgment of Ruttan J., Vancouver Registry, CC 841383, November 15, 1984, denying an application for habeas corpus with certiorari in aid with respect to a warrant for committal for extradition issued by Cowan Co. Ct. J. sitting as extradition judge, Vancouver Registry, CC 831355, August 3, 1984. Appeal dismissed, Beetz, McIntyre and Le Dain JJ. dissenting.

 

                   William H. Corbett, Q.C., for the appellants.

 

                   Barry Long, for the respondent.

 

                   The reasons of Beetz, McIntyre and Le Dain JJ. were delivered by

 

1.                       Le Dain J. (dissenting)‑‑I would allow the appeal. While I agree with Justice Wilson that what is in issue is whether the conduct underlying the conviction in the State of Washington would constitute the crime of theft in Canada, I am unable, with great respect, to agree with her conclusion that the evidence of that conduct before the extradition judge would not support an inference of fraudulent intent.

 

2.                       There is obviously a necessary difference in the wording of s. 18(1)(a) and 18(1)(b) of the Extradition Act, the one referring to the proof of conviction in the case of a convicted fugitive, the other referring to the evidence that would justify committal for trial in the case of an accused fugitive. I am unable, however, to conclude from this necessary difference in wording that the test or standard for determining whether the conduct underlying the conviction in the foreign state would constitute a crime in Canada should, or as a practical matter can, be essentially different from the prima facie test applicable in the case of an accused fugitive. In the application of that test to a case of conviction the extradition judge is not in the position of determining guilt or innocence or weighing the evidence any more than he is in the case of an accused fugitive. In the case of a convicted fugitive the test must be whether the conduct underlying the conviction, as it is described in the material before the extradition judge, could support a conviction of the crime in Canada. As long as inferences can be drawn from the facts as established, it is irrelevant whether or not a particular trier of fact would do so.

 

3.                       The extradition judge described the relevant facts as disclosed by the documentary material before him as follows:

 

                   The circumstances of the case against Johnson were before the trial judge at the time of sentencing and appear in the material filed. They disclose that in February 1979 a Mr. and Mrs. George Ford of Enumclaw, Washington, placed an ad in a Seattle newspaper offering to sell an organ. They were contacted by Johnson who persuaded them to enter into a thirty day consignment agreement with him and to deliver the organ to him. Two low offers were received and communicated to the Fords who turned them down. One week after the thirty day period had expired the Fords tried to contact Johnson but he had disappeared, as had the organ. Johnson was later located in Calgary, Alberta. Johnson remained at large until arrested in 1982.

 

4.                       In determining whether the conduct described by those facts would constitute the crime of theft in Canada, the extradition judge, in my respectful opinion, correctly applied the applicable test in the following passages of his reasons for judgment:

 

                   In my opinion those facts are such as to provide prima facie proof that the Canadian crime of theft, either under s. 283  or s. 290(1)  of the Criminal Code , was committed. The element of fraud can be inferred by the failure to return the goods within a reasonable time.

 

                   Johnson in an affidavit filed in these proceedings deposed to facts which, if believed, would negate the element of fraudulent intent. It is not the function of the extradition judge to weigh or consider different views of the evidence but for the purposes of the proof of double criminality to assess whether there is sufficient prima facie evidence to establish the commission of a Canadian crime.

 

5.                       The failure to return the organ within a reasonable time, from which the extradition judge held that an inference of fraudulent intent could be drawn, must be seen in light of the fact that both Johnson and the organ had disappeared and that he could not be located until he was arrested in 1982. The circumstances in R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.), which was relied on by the respondent and is applied by Wilson J., were materially quite different and so was the issue. In DeMarco, a married woman with four children rented a car on June 19, 1971, for the purpose of moving. The rental agreement stipulated that the car was to be returned the next day, but it was not returned until the police reclaimed it near the accused's house on July 16th. At the trial the accused testified that she never intended to steal the car. After moving she had filled out a forwarding address card at the post office, and then used the car to drive her children to school from time to time, and to take them on vacation. She testified that she "just assumed they knew that I had the car", and that she was intending to return it and pay for it one month after she rented it, i.e., July 19th, three days after it was seized. The Ontario Court of Appeal quashed the conviction and ordered a new trial on the grounds, stated by Martin J.A. at pp. 373 and 374, that the trial judge's direction to the jury "failed to make clear to the jury that if the accused had any honest belief in a state of facts which if they existed would constitute a legal justification or excuse for her retaining the car such belief itself negatived theft" and that "there was non‑direction amounting to misdirection in failing to direct the jury with respect to what was necessary to be proved in order to satisfy the requirement of a fraudulent intention on the part of the appellant in accordance with the authorities . . . .» In my respectful opinion, DeMarco is not authority for the proposition that an inference of fraudulent intent could not be drawn from the failure to return the organ in the circumstances of the present case.

 

6.                       Having come to this conclusion on the principal issue, it is necessary for me to address the respondent's alternative contention that the failure of the requesting state to comply with all the requirements of Article 9(2) of the Canada‑U.S.A. Extradition Treaty, 1976, rendered the committal by the extradition judge invalid. Article 9(2) provides that the request for extradition shall be accompanied by, inter alia, "the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense." The information by which the respondent was charged referred to s. 9A.56.020(1)(a) of the Revised Code of Washington (RCW), but the request for extradition was not accompanied by the text of that provision, although it was accompanied by the text of other provisions of the Revised Code of Washington respecting the crime of theft in the second degree, which were placed before the extradition judge. In my opinion the failure of the requesting state to comply with Article 9(2) of the Treaty did not affect the jurisdiction of the extradition judge to issue a warrant for committal pursuant to s. 18(1)(a) of the Extradition Act. Article 9(2) is directed, as Article 9(1) indicates, to the request for extradition through diplomatic channels and not to the proceedings before an extradition judge. There is nothing in the relevant provisions in ss. 10 and following of the Extradition Act to suggest that compliance with Article 9(2) of the Treaty is a condition precedent to the exercise of the extradition judge's jurisdiction. That it is not is an implication of the cases, with which I agree, in which it has been held that it is not necessary to place the request for extradition in evidence before an extradition judge: Re Von Einem and Federal Republic of Germany (1984), 14 C.C.C. (3d) 440 (B.C.C.A.) I am accordingly of the view that the failure to comply with Article 9(2) of the Treaty did not render the committal invalid.

 

7.                       For these reasons I would allow the appeal, set aside the judgment of the Court of Appeal and restore the warrant of committal issued by Cowan Co. Ct. J.

 

                   The judgment of Estey, Lamer, Wilson and L'Heureux‑Dubé JJ. was delivered by

 

8.                       Wilson J.‑‑This appeal requires us to consider the precise nature of the double criminality rule in extradition law. The question is whether the party seeking extradition must establish that the offence charged in the foreign state is an offence in Canada or whether it is sufficient to show that the conduct charged would have amounted to a Canadian crime listed in the Treaty had it taken place in this country.

 

The Facts

 

9.                       On May 18, 1979, the respondent was charged in the State of Washington with the crime of theft in the second degree. The information reads as follows:

 

                   I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the state of Washington, by this Information do accuse Melford Keith Johnson, of the crime of theft in the second degree, committed as follows:

 

                   That the defendant Melford Keith Johnson, in King County, Washington, on or about February 20, 1979, with intent to deprive another of property to wit: a Lowrey Organ, did exert unauthorized control over such property belonging to Mr. and Mrs. George Ford; that the value of such property did exceed $250:

 

                   Contrary to RCW 9A.56.040(1)(A).020(1)(a), and against the peace and dignity of the state of Washington.

 

The material facts underlying the charge are as follows. In February 1979 a Washington couple, the Fords, placed an advertisement in a Seattle newspaper offering to sell a "Lowrey" organ. The respondent Johnson offered to attempt to sell it for them. Johnson and the Fords entered into an agreement giving Johnson possession of the organ for thirty days after which he was to return the organ if it had not been sold. During the thirty‑day period Johnson referred two offers to the Fords; the Fords rejected the offers because they were too low.

 

10.                     At the expiry of the thirty‑day period the organ was not returned. The Fords attempted to locate Johnson and the organ but were unsuccessful on both counts.

 

11.                     Johnson was arrested in Seattle, Washington, on May 8, 1982. He pleaded guilty to the offence of theft in the second degree and was sentenced to the maximum term of five years' imprisonment. On December 26, 1982 Johnson escaped from prison. He left the State of Washington and came to Canada. At the time of his escape fifty‑two months of his sentence remained to be served.

 

12.                     Authorities in the State of Washington commenced proceedings to have Johnson extradited pursuant to the terms of the Canada‑U.S.A. Extradition Treaty, 1976. On September 7, 1983, an information was sworn before a Vancouver extradition judge stating that Johnson was a convicted fugitive who had escaped from custody in Washington. The judge issued a warrant for the apprehension of Johnson pursuant to s. 10(1) of the Extradition Act, R.S.C. 1970, c. E‑21. Johnson was arrested on September 13, 1983, and was released on bail pending the extradition hearing. After a number of delays the hearing was finally held on July 27, 1984, before Cowan Co. Ct. J. sitting as an extradition judge.

 

II The Courts Below

 

British Columbia County Court

 

13.                     On July 27, 1984, Cowan Co. Ct. J. ordered Johnson committed for extradition. He noted that no warrant for committal of Johnson to await extradition could issue unless it was established that Johnson had been convicted of an "extradition crime" as defined in s. 2 of the Extradition Act and Article 2 of the Canada‑U.S.A. Extradition Treaty, 1976. The critical point to be determined in order to resolve this issue, he stated, was whether the offence met the "double criminality" requirement of Article 2 of the Treaty.

 

14.                     Cowan Co. Ct. J. held that it did. He rejected the argument that the double criminality rule required that the offence charged have an equivalent in the Criminal Code  of Canada. "It is sufficient", he said, "to produce prima facie evidence of facts that amount to a Canadian crime listed in the treaty". Applying this test he held that the . . . "facts are such as to provide prima facie proof that the Canadian crime of theft, either under s. 283  or s. 290(1)  of the Criminal Code , was committed. The element of fraud can be inferred by the failure to return the goods within a reasonable time". Double criminality, therefore, could be made out despite the fact that there was no evidence that the Washington offence of theft in the second degree contained an element of fraudulent intent.

 

15.                     Cowan Co. Ct. J. also rejected the respondent's argument that his committal would constitute a violation of his rights under s. 7  of the Canadian Charter of Rights and Freedoms . The respondent did not argue s. 7  in this Court.

 

 

British Columbia Supreme Court

 

16.                     The respondent applied for habeas corpus with certiorari in aid to quash the warrant of committal made by Cowan Co. Ct. J. Ruttan J. denied the application concluding that Cowan Co. Ct. J. had correctly stated and applied the double criminality rule.

 

British Columbia Court of Appeal

 

17.                     Taggart J.A. for the Court allowed Johnson's appeal. He concluded that, while the lower courts correctly stated the double criminality rule, they applied it incorrectly because it was not established that Johnson's conduct would have constituted the offence of theft had it taken place in Canada. The record provided no evidence of the fraudulent intent necessary for a conviction under s. 283(1)  or s. 290(1)  of the Criminal Code . Taggart J.A. stated:

 

                   Now, unfortunately, what is missing from the material is anything showing what must be proved in Washington State to support a conviction for second degree theft. Certainly s. 9A.56.040 makes no reference to the element of fraudulent intent. The information which I have quoted makes averments which appear not to be included in the section. From that I assume, but making it clear that I have no way of knowing with certainty, there are other statutory provisions in Washington State setting out with more particularity what must be proved in order that a conviction for second degree theft may be entered. Those other provisions, if they exist, are not before us. Without them, I am unable to say the appellant was convicted of an extradition crime as required by s. 18(1)(a) of the Act. Unless one can say with certainty that he was convicted of an extradition crime, and I cannot, the order sought by the Washington State authorities ought not to be made.

 

He later qualified this by stating:

 

My brother Lambert has quite correctly pointed out that in the course of my reasons for judgment I said unless we can say with certainty that the appellant was convicted of an extradition crime in the State of Washington the extradition order sought by the Washington authorities ought not to be made. I think the term certainty is much too strong. It would have been preferable to say only that there is before us, and there was before the extradition judge, no evidence from which the conclusion could be drawn that an extradition crime had been committed by the appellant in the State of Washington.

 

The Court of Appeal therefore allowed the appeal, quashed the warrant of committal and ordered Johnson released from custody. His release was made subject to "the proviso that the appellant is not at the present time necessarily detained to answer other charges that may be pending against him".

 

III The Issue

 

18.                     The issue in this appeal is whether the British Columbia Court of Appeal erred in concluding that there was no evidence that Johnson committed an extradition crime in the State of Washington. In order to determine this we must examine the nature of extradition crimes generally and the double criminality rule in particular.

 

(a) Extradition Crimes

 

19.                     The extradition of convicted fugitives between Canada and the U.S. is governed by Canada's Extradition Act and by the Canada‑U.S.A. Extradition Treaty, 1976. Section 3 of the Extradition Act provides:

 

                   3. In the case of any foreign state with which there is an extradition arrangement, this Part applies during the continuance of such arrangement; but no provision of this Part that is inconsistent with any of the terms of the arrangement has effect to contravene the arrangement; and this Part shall be so read and construed as to provide for the execution of the arrangement.

 

This section of the Act incorporates the Treaty into domestic law. Extradition must therefore be conducted in accordance with both the Act and the provisions of the Treaty: see Government of the Republic of Italy v. Piperno, [1982] 1 S.C.R. 320, at p. 324.

 

20.                     Committal for extradition is authorized by s. 18(1) of the Extradition Act which 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.

 

Thus, the requirement for a committal under para. (a) is simply proof that the fugitive has been convicted of an extradition crime. "Extradition crime" is defined by s. 2 of the Extradition Act read in conjunction with Article 2(1) of the Canada‑U.S.A. Extradition Treaty, 1976. These two provisions read as follows:

 

                   2. ...

 

"extradition crime" may mean any crime that, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in Schedule I; and, in the application of this Act to the case of any extradition arrangement, "extradition crime" means any crime described in such arrangement, whether or not it is comprised in that Schedule;

 

                                                               Article 2

 

(1) Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.

 

Among the crimes listed in Schedule 1 to the Extradition Act are the following:

 

                   5. Larceny or theft;

 

                   7. Obtaining money or goods, or valuable securities, by false pretences;

 

                   9. Fraud by a bailee, banker, agent, factor, trustee, or by a director or member or officer of any company, which fraud is made criminal by any Act for the time being in force; [Emphasis added.]

 

It would appear, therefore, that the offence of which Johnson was convicted was listed in the Schedule annexed to the Treaty under one or more of the above items. Article 2(1) of the Treaty, however, requires that the offences be "punishable by the laws of both Contracting Parties". This is the double criminality rule, the precise nature of which is in issue on this appeal.

 

(b) The Double Criminality Rule

 

21.                     The central issue to be addressed in determining the nature of the double criminality rule is whether the rule requires the elements of the extradition crime to be the same in the requesting and the requested state or whether it merely requires the act charged to be a listed crime in both countries. Cowan and Ruttan JJ. in the courts below believed that the latter was adequate. The Court of Appeal seems to have disagreed and proceeded on the basis that the elements of the crime must be the same in both states. Which is correct?

 

22.                     The learned writers seem to be in agreement that the double criminality rule looks to the conduct of the individual whose extradition is being sought. Gerald V. La Forest, in his text Extradition To and From Canada (2nd ed. 1977), defines an extradition crime as follows at p. 42:

 

An extradition crime may broadly be defined as an act of which a person is accused, or has been convicted, of having committed within the jurisdiction of one state that constitutes a crime in that state and in the state where that person is found, and that is mentioned or described in an extradition treaty between those states under a name or description by which it is known in each state. This definition can be broken down into several propositions:

 

(1)               the act charged must have been committed within the jurisdiction of the demanding state;

 

(2)               it must be a crime in the demanding state;

 

(3)               it must also be a crime in the requested state; and

 

(4)               it must be listed in an extradition treaty between the two states under some name or description by which it is known in each state.

 

I read the word "it" in each of paragraphs (2), (3) and (4) as referring back to "the act charged" in paragraph (1); that is, we are directed to examine the conduct which gave rise to the conviction or charge in the foreign state.

 

23.                     Ivan A. Shearer, in his text Extradition in International Law, 1971, also emphasizes the conduct‑based nature of the test. He states at p. 137:

 

The basic rule observed by the enumerative and `no list' treaties alike is the rule of double criminality. This rule requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and the requested States.

 

24.                     The double criminality rule has not received a great deal of judicial attention in Canada. However, it was addressed in Cotroni v. Attorney General of Canada, [1976] 1 S.C.R. 219. In that case the issue was whether conspiracy to import a narcotic was an extradition crime within the meaning of the Extradition Act. This Court held that conspiracy to import narcotics fell into the list of offences laid down in the extradition arrangement between Canada and the United States. The Court then proceeded to the double criminality issue. It found that the accused could have been charged under a Canadian Criminal Code provision had his conduct taken place in Canada. Spence J. stated for the unanimous Court at p. 222:

 

                   I am of the opinion that it matters not whether the particular indictment, had it been laid in Canada, would have been laid under the provisions of the Criminal Code  or the Narcotic Control Act or in fact any other statute. The test is what is the essence of the crime charged.

 

It is clear that the Court did not require an exact identity between the offence charged in the requesting state and the Canadian offence. This case, therefore, seems to support the proposition that the double criminality rule focusses on the criminal conduct of the person whose extradition is being sought.

 

25.                     This position is bolstered by a consideration of the purpose of the double criminality rule. Ivan A. Shearer suggests in his text that the double criminality rule has its roots in the doctrine of reciprocity. He states at pp. 137‑38:

 

                   The validity of the double criminality rule has never seriously been contested, resting as it does in part on the basic principle of reciprocity, which underlies the whole structure of extradition, and in part on the maxim nulla poena sine lege. For the double criminality rule serves the most important function of ensuring that a person's liberty is not restricted as a consequence of offences not recognized as criminal by the requested State. The social conscience of a State is also not embarrassed by an obligation to extradite a person who would not, according to its own standards, be guilty of acts deserving punishment. So far as the reciprocity principle is concerned, the rule ensures that a State is not required to extradite categories of offenders for which it, in return, would never have occasion to make demand. The point is by no means an academic one even in these days of growing uniformity of standards; in Western Europe alone sharp variations are found among the criminal laws relating to such matters as abortion, adultery, euthanasia, homosexual behaviour, and suicide. [Emphasis added.]

 

Thus, following this reasoning, if it could be established that the conduct of the fugitive constituted the listed offence of theft in both Canada and Washington the double criminality requirement would be met.

 

26.                     I would agree, therefore, with the appellant's contention that the double criminality rule is conduct‑based.

 

IV The Application of the Rule

 

27.                     Mr. Johnson was convicted in Washington of theft in the second degree. This offence is defined as follows:

 

9A.56.040. Theft in the second degree

 

                   (1) A person is guilty of theft in the second degree if he commits theft of:

 

                   (a) Property or services which exceed(s) two hundred and fifty dollars in value, but does not exceed one thousand five hundred dollars in value; or

 

                                                                    ...

 

                   (2) Theft in the second degree is a class C felony.

 

The Washington law, it will be noted, does not on its face include the requirement of fraudulent intent. The Criminal Code  sections that define the crime of theft in Canada do, however, expressly contain this requirement. The relevant sections read as follows:

 

                   283. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything whether animate or inanimate, with intent,

 

(a) to deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of his property or interest in it,

 

(b) to pledge it or deposit it as security,

 

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or

 

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

 

                   290. (1) Every one commits theft who, having received anything from any person on terms that require him to account for or pay it or the proceeds of it or a part of the proceeds to that person or another person, fraudulently fails to account for or pay it or the proceeds of it or the part of the proceeds of it accordingly.

 

                   294. Except where otherwise provided by law, every one who commits theft

 

                                                                    ...

 

(b) is guilty

 

(i) of an indictable offence and is liable for imprisonment for two years, or

 

(ii) of an offence punishable on summary conviction,

 

where the value of what is stolen does not exceed two hundred dollars.

 

Accordingly, on the wording of the relevant statutory provisions, absent further knowledge of the Washington law of theft in the second degree, it cannot be said that Johnson's conduct would give rise to a conviction for theft had it taken place in Canada.

 

(a) The Case for the Appellant

 

28.                     It was the position of counsel for the appellant in this Court that neither the Extradition Act nor the Canada‑U.S.A. Extradition Treaty, 1976 required proof of the elements of the crime in the requesting state or a correspondence of such elements with the elements of the crime under the laws of Canada. The Court of Appeal erred in thinking that they did. All that had to be shown, the appellant submitted, was that the offence of which the fugitive had been convicted was listed in the Treaty, i.e., theft, and that "theft" is an offence under the Criminal Code . The double criminality rule, he submitted, required only that the conduct be criminal in both States but not that the elements of the offences be the same. In other words, "theft in the second degree" in the State of Washington does not have to equate "theft" under the Criminal Code  of Canada.

 

29.                     Counsel for the appellant relied on the House of Lord's decision in In re Nielsen, [1984] 1 A.C. 606, for the proposition that proof of the law of the requesting state was not required on an extradition hearing, only a description of the conduct leading to the conviction in that state. The sole issue was whether that conduct would constitute a crime in Canada also. He pointed out that the extradition judge in this case, having reviewed the conduct of the fugitive, concluded: "In my opinion those facts are such as to provide prima facie proof that the Canadian crime of theft, either under s. 283  or s. 290(1)  of the Criminal Code , was committed. The element of fraud can be inferred by the failure to return the goods within a reasonable time".

 

(b) The Case for the Respondent

 

30.                     Counsel for the respondent directed our attention to the difference between s. 18(1)(a) and s. 18(1)(b) of the Extradition Act. Section 18(1)(a), he pointed out, deals with the circumstance where the fugitive has been convicted in the foreign state and s. 18(1)(b) with the circumstance where the fugitive has been charged in the foreign state. He submitted that where there had been a conviction, as in this case, the only question is whether the offence of which the fugitive was convicted is an extradition crime. Where, however, the fugitive has merely been charged in the foreign state the requirements are different. Not only must he have been charged with an extradition crime but such evidence must be produced "as would, according to the law of Canada . . . justify his committal for trial, if the crime had been committed in Canada". It is, counsel submitted, under s. 18(1)(b) that the issue of prima facie proof justifying committal arises. It does not arise under s. 18(1)(a) which is the applicable provision in this case. I would respectfully agree with this submission.

 

31.                     Counsel submitted further that there are two ways in which the appellant could establish under s. 18(1)(a) that the crime of which the fugitive had been convicted was an extradition crime. He could prove the foreign law under which the fugitive was convicted. This would have to be done in the manner required for proof of foreign law in a Canadian court. This route was not followed. Or he could produce the description of the conduct for which the fugitive was convicted and it could then be determined whether or not that same conduct taking place in Canada would constitute the offence here. This was done. However, the description of the conduct for which he was convicted did not, counsel for the respondent submitted, constitute an offence under either s. 283(1)  or s. 290(1)  of the Criminal Code . A necessary element for a conviction under either of these sections was a fraudulent intent and there was nothing in the description of the conduct for which the fugitive was convicted in the State of Washington to indicate the presence of such an intent. Accordingly, he submitted, counsel for the appellant failed to prove that the offence of which the fugitive was convicted was an "extradition offence" within the meaning of the Extradition Act and the Canada‑U.S.A. Extradition Treaty, 1976.

 

32.                     I agree with the respondent that there are two methods by which double criminality could be established for the purposes of s. 18(1)(a). First, it could be established that Washington law required fraudulent intent for a conviction of the offence charged. This could be done either by showing that the text of the offence includes a requirement of fraudulent intent or by calling expert witnesses to testify that while fraudulent intent is not a requirement apparent on the face of the Washington statute, it is nevertheless required by the law of Washington. If either of these be shown, then evidence of a conviction under Washington law would constitute evidence that the fugitive's conduct would have amounted to theft under Canadian law. In this case, however, the text of the foreign law provided by the requesting state pursuant to Article 9(2) of the Treaty did not show that the Washington law required fraudulent intent. Neither was any expert evidence called on this issue.

 

33.                     The second method of showing that the double criminality requirement had been met would be to establish that the particular facts underlying the Washington charge would, if replicated in Canada, constitute an offence under either s. 283(1)  or s. 290(1)  of the Criminal Code . This was not done either. The facts underlying the Washington charge were laid out in the affidavits before the extradition judge. However, the extradition judge did not find that the facts contained evidence of fraudulent intent. He concluded rather that "the element of fraud can be inferred by [sic] the failure to return the goods within a reasonable time". With respect, I disagree with this conclusion. The failure to return goods within a reasonable time is consistent with a number of explanations other than fraud. The non‑return could be due to forgetfulness, error or inability. The element of fraud cannot in a criminal prosecution be inferred from the fact of non‑return alone: see, for example, R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.)

 

34.                     I would conclude, therefore, that the appellant has failed to establish that the respondent was convicted in Washington of an extradition crime. It follows that s. 18 of the Extradition Act does not authorize his committal for extradition.

 

35.                     The appeal is accordingly dismissed. Costs were not asked for and I would, in any event, make no order as to costs.

 

                   Appeal dismissed, Beetz, McIntyre and Le Dain JJ. dissenting.

 

                   Solicitor for the appellants: Frank Iacobucci, Ottawa.

 

                   Solicitor for the respondent: Gil McKinnon, Vancouver.

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