A Treatise on Criminal Law as Applicable to the Dominion of Canada

held that the St. Alban's Raid (the facts of which are given in the report), was a hostile expedition, authorized by a Government entitled to claim belligerent rights, and should be disposed of by international law, founded on the rights of belligerents, and not by a neutral judge. (a) This principle was also recognized in Burley's case. (b) The counsel for the defence contended that the act charged was committed by the prisoner while engaged in an act of hostility duly authorised by the Confederate States against the United States; and no doubt, if this had been established, the Court would have discharged the prisoner. But it was held that, under the circumstances of the case, as shewn, as well on the part of the prosecution as of the defence, the accused, who took the property of a non-combatant citizen, by violence, from his person, was guilty of robbery, and liable to be surrendered under the Treaty It was also very fully recognized in the most important case of "The Chesapeake " in New Brunswick. There evidence was produced to establish an authority from the Government of the Confederate States, as recognized belligerents, for the commission of the acts charged.

Where the crime comes within the Treaty, it is immaterial whether it is according to the laws of the United States, only a misdemeanor and not a felony; our concern is to deal with these foreign offences in our own country in like manner as if they had been committed here-to enforce the Treaty effectually and in good faith, and to leave all questions of municipal law between the foreign authorities and their prisoners to be dealt with and settled by their own system, with which, in that respect, we have nothing whatever to do. (c)

(a) Reg. v. Bennet H. Young; the St. Alban's Raid 454, per Smith, J.

(b) 1 U. C. L. J. N. S. 20 and 34.

When application is made to a Magistrate for a warrant of arrest under the Treaty, his first consideration should be, whether the alleged offence is within the terms of the Treaty. But for the Treaty and the Statutes, the proceedings by a Magistrate, in respect of a crime committed in the United States, by way of arresting or committing the accused to prison, would be coram non judice, and upon Habeas Corpus the prisoner would be entitled to his discharge. The whole power to deal with a crime in a foreign country is derived from the Treaty and the Statutes, and there is no jurisdiction or power to take any proceedings under the Treaty, except for one of the offences mentioned therein; (a) and if the Magistrate does not find by his warrant that one of these offences has been committed, the whole case fails, and no legal power exists to correct or supply the defect. (b)

In considering, therefore, the right to arrest and detain, it ought clearly to appear that the prisoner is charged with an offence within the Treaty. If doubtful whether it is one of those enumerated or not- if, for instance, it is not clear whether the offence alleged to have been committed amounts to murder or manslaughter, that interpretation should be adopted which is most in favour of the liberty of the accused; and as manslaughter is not mentioned in the Treaty, the party should not be arrested and detained. (c) Nor does the last Act 31 Vic., c. 94, give extended powers in this respect, or any authority to commit, except for the purposes specified therein; and if the evidence does not warrant this step, the accused must be discharged. (d)

The Magistrates to whom application may be made for

(a) Re Anderson, 11 U. C. C. P. 52, 3 per Draper, C. J.

(b) Ib. 68, per Hagarty, J.

(d) Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J.

the warrant of arrest are mentioned in the 31 Vic., c. 94, s. 1, as amended by the 33 Vic., c. 25. Any Judge of either of the Superior Courts has power to issue his warrant and examine witnesses, or take evidence with a view to commitment for the purposes of extradition; but the power is only to the Judges individually, and not to the Court, as such. (a) So a Recorder has equal jurisdiction with the Judges of the Superior Courts in this respect. (b)

It was held in the Chesapeake case, that the Magistrate must have jurisdiction, judicially as well as territorially, over the offence, and that if it were of such a character that he would have no jurisdiction over it when committed in this country, neither the Treaty nor the Statute authorized an inquiry for the purpose of committing the offender, when his offence arose in the United States. This case, however, was under the Imp. Stat. 6 & 7 Vic., c. 76, which only empowered any "Justice of the Peace or other persons" to act under the Treaty. The tendency of recent legislation has been to vest this power in the superior magistracy of the country; and if it is still held that they must have a judicial as well as territorial jurisdiction over the offence, the jurisdiction is nevertheless very much enlarged.

The following case shews the authority for appointing a Magistrate to act under the Treaty, the powers which the appointment confers, and also that they are not affected by the circumstance that another Magistrate has, after hearing evidence, etc., discharged the fugitive:

The prisoners were arrested at Toronto, under a warrant issued by one M., on an information laid by B., charging them with robbery, committed with violence,

(a) Re Anderson, 11 U. C. C. P. 65, per Richards, J.

(b) Re B. G. Burley, 1 U. C. L. J. N. S. 50, per John Wilson, J.

in one of the United States of America, and stating the information to be laid before "the undersigned Police Magistrate in and for the County of the City of Toronto, amongst other Counties appointed under and by virtue of the Act of the Parliament of Canada, 28 Vic., c. 20, entitled," etc. The warrant of arrest described M. as Police Magistrate for all these Counties, naming them in full, and the warrant of commitment as Police Magistrate for the County of Essex, amongst other Counties appointed under and by virtue of the above Act (but no commission empowering him to act was produced on this application, which was for the prisoners' discharge under a writ of Habeas Corpus). Under this warrant, the prisoners were conveyed to S., in the County of Essex, and evidence was given there, before M., of the robbery in question, consisting of certain depositions taken in the United States, before a Justice of the Peace there, on which an original warrant of arrest was issued by him. These depositions had been taken, and warrant issued, after the arrest at Toronto. On this evidence, the prisoners were committed to custody, to await the warrant of the Governor-General for their extradition to the United States. The prisoners, it seemed, had been previously arrested at Toronto on the same charge, and been discharged by the local Police Magistrate, after a lengthened investigation had before him. It was held that this discharge did not prevent another duly qualified officer from entertaining the charge against them, on the same or on fresh materials, and that the failure of one Magistrate, from mistake or otherwise, to commit persons charged for extradition, cannot prevent the action of another Held, also, that the 29 & 30 Vic., c. 51, s. 373, (now repealed and re-enacted by (Ont.) 32 Vic., c. 6, s. 11) only applied to any case arising in any town or city in

Ontario, and did not preclude M. from taking the information of B. and issuing his warrant in Toronto, where there was already a Police Magistrate; for that the words. of the section merely excluded him from jurisdiction there in local cases, but did not apply to cases arising under the extradition laws.

It was further held, that the appointment of M. might well have been made under 28 Vic., c. 20, for any one or for all the Counties of Ontario, including Toronto, and his power made the same as a Police Magistrate in Cities, except as regarded purely municipal matters, and that this Act was continued by (Ont.) 31 Vic., c. 17, s. 4; but that as nothing was suggested in any way impugning the possession by M. of the authority to act, the ordinary rule must prevail, and the warrant be treated as executed by an officer possessing such authority. (a)

A warrant may be, in the first instance, issued in this country, and the proceedings under the Treaty and Statutes initiated here; (b) and it is not necessary that an original warrant should have been granted in the United States. The charge may be made within the jurisdiction of either of the high contracting parties, in case the evidence of criminality, "according to the laws of the place where the fugitive, or person so charged, should be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed. (c)

It is not a condition precedent to the jurisdiction of the magistrate that the charge should be first laid in the United States, or that a requisition should be first made by the Government of the United States upon the Canadian Government, or that the Governor-General of

(a) Reg. v. Morton, 19 U. C. C. P. 9.

(b) Re Anderson, 11 U. C. C. P. 53 per Draper, C. J.; Reg. v. Morton, 19 U. C. C. P. 19 per Hagarty, J.

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