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

jury by deciding as to the credibility of witnesses. (a) In Burley's case, the accused, on his examination before the magistrate, admitted the acts charged, which prima facie amounted to robbery, and alleged, by way of defence, matter of excuse which was of an equivocal character, and bore different interpretations, and the court held that the magistrate could not try the case, nor act on the explanatory evidence by way of defence; but the prima facie evidence being sufficient to justify the committal of the prisoner, the facts necessary to rebut the prima facie case could only be determined by the courts of the United States. If there is not sufficient evidence of criminality, the magistrate ought not to commit; if there is, he ought, notwithstanding the evidence is suf ficient, if true, to rebut an alibi. If he discharges because the evidence pro and con is equally strong, and he cannot determine which side is telling the truth, he is in error, because, in either of these cases, if he pursued any other course, he would, for many purposes, be assuming the functions of a jury, and, on a preliminary investigation, trying the whole merits of the case, though the enquiry was only instituted to ascertain whether the evidence of criminality would justify the apprehension and committal for trial of the person accused. (b)

If the facts proved admit of different interpretations as to the intent with which the prisoner acted, this is no ground for refusing to commit for extradition, because the question of intent is for the jury on the trial. (c) Thus, if the charge is of assault with intent to commit murder, it is no objection that the facts proved are as

(a) Reg. v. Reno and Anderson, 4 U. C. P. R. 281; Re Burley, 1 U. C. L. J. N. S. 34; Reg. v. Bennet H. Young; the St. Alban's Raid, 449, per Smith, J. ; ex parte G. H. Martin, 4 C. L. J. N. S. 200 per Morrison, J.

(b) Reg. v. Reno and Anderson, 1 U. C. P. R. 299, per Draper, C. J.; Re B. G. Burley, 1 U. C. L. J. N. S. 46, per Richards, C. J.

much evidence of other felonious intents as of the intent to murder. (a) And if the evidence presents several views, on any one of which there may be a conviction, if adopted by the jury, the court is not called upon to determine which of the views is best supported, but may commit the prisoner for surrender. (b)

The magistrate should remember that the citizens of a foreign country are entitled to precisely the same measure of justice as our own people. (c) But he should not hesitate in committing the prisoner for extradition from any fear that he will not be fairly dealt with in the United States; and, even if he is satisfied that the prisoner will not be tried fairly and without prejudice in the foreign country, he cannot refuse to give effect to the statute by acting on such an assumption. (d) But he must assume that courts in other countries will be governed by the same general principles of justice which prevail in our own courts, and that the prisoner will have a fair trial after his surrender. (e) We are not to overlook or forget for an instant that we are dealing with a highly civilized people, most tenacious of their liberty, whose laws are similar to our own, but administered with more of the common law technicality than we have thought it expedient to retain, by which many avenues are left open for criminals to escape which we have closed; (f) so that a prisoner is more likely to be acquitted in the United States than here.

An information stating that the prisoner was apprehended on suspicion of felony," was held too general,

(a) Reg. v. Reno and Anderson, 4 U. C. P. R., 296, per Draper, C. J.

(b) Reg. v. Gould, 20 U. C. C. P. 154.

(d) Re Anderson, 20 U. C. Q. B. 173, per Robinson, C. J.

(e) Reg. v. Reno and Anderson, 4 U. C. P. R. 299. per Draper, C. J.; Re B.

G. Burley, 1 U. C. L. J. N. S. 48, per Richards, C. J.

(f) Reg. v. Morton, 19 U. C. C. P. 25, per Wilson, J.

as not containing a charge of any specific offence. (a) The information in this case was considered as for an ordinary offence, committed within our own jurisdiction. But it is no objection to the information and complaint on which the Magistrate issues his warrant for the arrest of the party, in the first instance, that the complainant was not an eye-witness of the facts to which he deposes, or that they are stated on information and belief; at least, the offender may be lawfully brought before a Justice, and detained a reasonable time, until the proper evidence can be produced. (b)

In Re Kermott, (c) a question was raised, whether a committing Magistrate could detain a prisoner on evidence amounting only to a ground of suspicion, for the purpose of other evidence being imported into the case, so as to bring it within the Treaty; but, per Sullivan, J. (d), neither the Treaty nor the Statutes contemplate the surrender of an accused person upon mere suspicion. However the law may be on this point, there is no doubt of the Magistrate's power to detain the prisoner when the evidence is clear and satisfactory as to his guilt, and this even although he has been arrested upon a void warrant. Thus, where a prisoner was committed for extradition, and a Habeas Corpus and Certiorari for his discharge obtained, it was held that the material question was, being in custody, whether a sufficient case was made out to justify his commitment for the crime charged; that it was immaterial that the original information, warrant, etc., were irregular and defective, if, on the hearing, sufficient appeared to justify the commitment; that it would be absurd to discharge the prisoner because the

(a) Reg. v. Bennet H. Young; the St. Alban's Raid.

(b) Re Anderson, 20 U. C. Q. B. 151, per Robinson, C. J.; and see Reg. v. Reno and Anderson, 4 U. C. P. R. 287.

(d) Ib. 256.

warrant might be void, when the evidence, on the hearing, would justify re-arresting him the next moment, and that the commitment must therefore be upheld. (a)

In Re Anderson, (b) it was held that, when a person is brought before the Court upon a writ of Habeas Corpus, and the warrant of commitment upon which he is detained appears on its face to be defective, the Court before whom the prisoner is brought has no authority to remand him, and that such power is only possessed by the Court in virtue of its inherent jurisdiction at common law, and does not extend to proceedings under the Extradition Treaty and Statutes. But it has been held in Quebec that a Judge of Sessions, when a prisoner is brought before him on the original warrant of arrest, has power to remand under the Treaty and Statutes; and when the remand appointed no day for the further examination of the prisoner, and an application was made for a Habeas Corpus (before the eight days after the remand had expired), (c) on this ground, and on the ground that the Judge had no power to remand, the writ was refused, the Court holding that the power to remand was essential to the performance of the Magistrate's duties, and that the irregularity in not fixing the day was unimportant. (d) We next proceed to consider the evidence by which the charge before the Magistrate is to be sustained.

The provision in the Statute as to the evidence of criminality being sufficient to justify the apprehension and committal for trial, if the offence had been committed here, merely furnishes a test as to the kind of evidence required. (e) So far as regards the means of proof, there can be no doubt that it is our law which must

(a) Ex parte G. H. Martin, 4 C. L. J. N. S. 198.

(b) 11 U. C. C. P. 1.

(d) Reg. v. Bennet H. Young; the St. Alban's Raid, 15. (e) Re Warner, 1 U. C. L. J. N. S. 18, per Hagarty, J.

govern, according to the provision in the Statute. If, for instance, the law of the States, or any of them, should admit a confession extorted from a party by violence or threats, to be used against him on a charge of an offence coming within the provisions of the Treaty, such evidence could not be admitted here. (a)

The Judge, or other person acting, may proceed upon original viva voce testimony, in like manner as "if the crime had been committed in this Province." He may, however, also receive copies of the depositions on which the original warrant was issued in the United States, in evidence of the criminality of the accused. (b) But as the 31 Vic., c. 94, s. 3, is an enabling Act, there is no obligation on the part of the prosecutor to produce such depositions. (c) In construing and applying the third section of the above Act, which renders copies of the depositions on which the original warrant was granted in the United States admissible here, we must look at the spirit of the provision, not the mere letter, and in the language of our Interpretation Act, 31 Vic., c. 1, thirtyninthly, p. 64, we must give it such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of such provision or enactment, according to their true intent, meaning, and spirit.

What the section intended was, that any depositions made in the United States, before proper authority, and upon which a warrant issued for the arrest of the accused, should be received as evidence of his criminality, on the hearing before the Magistrate investigating the charge. The main object contemplated by the enactment was to

(a) Re Anderson, 20 U. C. Q. B. 169, per Robinson, C. J.

(b) Re R. B. Caldwell, 6 C. L. J. N. S. 227, 5 Ü. C. P. R. 217, per A. Wilson, J.

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