Government of Canada v Browne

• Jurisdiction: Barbados
• Judge: Douglas, C.J.,Rocheford, J.
• Judgment Date: 26 November 1985
• Court: Divisional Court (Barbados)
• Docket Number: No. 38 of 1985
• Date: 26 November 1985

Supreme Court. Divisional Court

Douglas, C.J.; Rocheford, J. (Acting)

No. 38 of 1985

Government of Canada

and

Browne

Appearances:

Mr. E.F. Belgrave, Q.C., Deputy Director of Public Prosecutions, and Mr. O. Springer, Acting senior crown counsel, for the applicant.

Mr. F.G. Smith, Q.C. and Miss Vere Brathwaite for the respondent.

Extradition - Documents — Admission — Application was brought before the court for leave to appeal against the order of a magistrate whereby in rendition proceedings under the Extradition Act, 1979, the respondent, an alleged fugitive was discharged — Whether the Magistrate was erroneous in point of law when he did not admit the extradition documents — Whether the Government of Canada as the requisitioning State was properly before the court — Point taken in limine was overruled since the court found that the Government of Canada was properly before the court — Court held that the magistrate was wrong in rejecting the extradition documents — The documents were admissible in accordance with section 15 of the Act — Judicial notice was to be taken of the official seal of the Minister of Justice or other Minister of Government of the country seeking surrender of the fugitive concerned — Appeal allowed — Magistrate's order of discharge quashed — An order made for proceedings to be remitted to the magistrate with a direction that he admit the extradition documents in evidence and adjudicate on the matter according to law.

JUDGMENT OF THE COURT:

1 This is an application for leave to appeal against the order of a magistrate sitting at District “A” made on the 30th of September, 1985 whereby in rendition proceedings under the Extradition Act, 1979 the respondent, an alleged fugitive, was discharged.

2 On the 14th of June 1985 Inspector Cordon Maxwell of the Royal Barbados Police Force swore to an information, stating inter alia—

“2. On the 14th day of June 1985, in the course of my duties I went to the Ministry of Legal Affairs, Marine House, Christ Church, where I was handed a bundle of documents by an officer from the said Ministry containing information that a warrant of arrest has been issued at County Court Judges' Criminal Court, Judicial District of Halton in Canada on the 14th day of July, 1984 by Mr. James A. Clarke, Judge, County Court Judges' Criminal Court, Judicial District of Halton in the Province of Ontario in Canada, for the arrest of Earl Moran Browne, a citizen of Canada who had been found guilty on the 25th day of May, 1984 of the charge that he, between the 15th day of May, 1983, and the 8th day of July, 1983, at the Town of Oakville, in the Judicial District of Halton, did steal a quantity of merchandise the property of Insurdata Limited of a value exceeding two hundred ($200.00) dollars, contrary to section 294 (a) of the Criminal Code of Canada, and was remanded on bail till the 28th day of June, 1984, for sentence, but he failed to appear at the said court to be sentenced.”

3 The Inspector swore, further, that he was in receipt of information that Earl Moran Browne was residing in Barbados and was the same person referred to in paragraph 2 of his information.

4 The information was taken and sworn to before Miss M.A. MacCormack, a magistrate at District “A”, who issued a Warrant of Apprehension under the Extradition Act. On the 16th of August, 1985 Inspector Maxwell arrested the respondent on the Warrant and placed him before the Magistrate's Court at District “A”.

5 The matter came on for hearing before Mr. C.J.B. Harris, magistrate, and Inspector Maxwell tendered his information, the Warrant and a copy of the Official Gazette containing S.I. 1982 No.175 designating Canada as a Commonwealth country to which the Extradition Act applies. These documents were received in evidence. He also tendered the bundle of documents which he had received from the Ministry of Legal Affairs. The magistrate made a note “documents admitted and marked ‘E’ for identification.”

6 Mr. F.A. Parris, the Permanent Secretary in the Ministry of Legal Affairs, gave evidence and stated that on the 15th of February, 1985 he received papers, the documents marked “E” being an application by the Canadian Government for the extradition of Earl Moran Browne. He brought the fact of the receipt of these documents to the attention of the Attorney General and gave certain instructions to Mrs. Farnum, an officer in the Ministry. Mrs. Farnum also gave evidence before that the magistrate and stated that she received the documents marked “E”, she marked each with her initials, and in accordance with Mr. Parris' instructions, she submitted the documents to the Solicitor General. She received them again some time after and on the 14th of June, 1985, she handed them over to Inspector Maxwell.

7 Finally, as to the evidence, Mr. Wendell Kellman, the Chief of Protocol and head of consular affairs in the Ministry of Foreign Affairs, stated that Miss Susan Fostey, the signatory to the Canadian Government's request for the rendition of Earl Moran Browne, is Second Secretary and Consular Officer attached to the Canadian High Commission in Barbados and is on the Diplomatic List. He identified the signature on the request as Miss Fostey's and stated that he had discussions with her about this particular extradition request.

8 The documents which the magistrate marked “E” for identification (hereinafter called “the extradition documents”) comprise the following:–

• (i) The Canadian High Commission's request for rendition dated the 13th of February, 1985;

• (ii) A Certificate of Authentication dated the 24th of September, 1984 signed by W.I.C. Binnie, Associate Deputy Minister of Justice for Canada, and sealed with the Seal of the Minister of Justice for Canada;

• (iii) A sworn affidavit by Rod Wilson, a member of the Halton Regional Police Force and the principal investigating officer in the prosecution of Earl Moran Browne, with the following attachments:–

  • A — a copy of the indictment on which Browne was convicted;

  • B — A copy of the Reasons for Conviction given by His Honour Judge Clarke on the 25th of May, 1984;

  • C — A photograph of Browne;

  • D — A copy of the Bench Warrant issued by His Honour Judge Clarke for the arrest of Browne;

  • E — The fingerprint records of Browne;

• (iv) A sworn affidavit of Murray David Segal, a counsel in the Crown Law Office, Ministry of the Attorney General for the Province of Ontario.

9 In Mr. Segal's affidavit it is stated inter alia—

• “5. THAT the offence charged against the said Earl Moran Browne and of which he was convicted constitutes the offence of theft over two hundred dollars under the Criminal Law of Canada and is punishable by a maximum of ten years in the penitentiary.

• 6. THAT the said offence is not of a political character. That the request for Browne's return is not being made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions, If returned to Canada, he will not be prejudiced or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

• 7. THAT in my opinion, the offence of which he has been convicted is not of a...