Re Collins (No 3): 1905

(Canada) The United States sought to extradite Collins on a charge of perjury which was alleged to have taken place when he made an affidavit containing a wilfully false statement of fact in the course of an action of alimony in California. Many technical points against the proposed extradition were raised and rejected. The key argument was that under section 2(b) of the Canadian Extradition Act, the extradition crime might mean any crime, ‘which, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in the first schedule’ to the Act. The judge was satisfied that perjury was indeed a crime described in that schedule. According to the Californian Penal Code, the offence of perjury was committed by someone who lied after having taken an oath ‘that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person.’ There was nothing, however, in the law of Canada, which made it perjury to make a false deposition before any competent Californian tribunal or officer. Therefore, it was said, the crime for which Collins’ extradition was sought was not a crime which, if committed in Canada, would be one of the crimes described in the first schedule to the Extradition Act. It followed that it was not an ‘extradition crime’ within the meaning of section 2(b) of that Act.
Held: Duff J rejected the argument: ‘It is contended by the applicant that on these authorities to which I have referred, you have to go through the conduct upon which the criminal charge is based, and you have to come to the conclusion that his identical acts, if done in this country, would have constituted a crime in accordance with the law of Canada. Taken with due qualifications, we need not quarrel with that; but it is obvious from the outset that there must be some qualification. In the first place, the treaty itself, which, after all, is the controlling document in the case, speaks not of the acts of the accused, but of the evidence of ‘criminality,’ and it seems to me that the fair and natural way to apply that is this – you are to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused, but upon the essence of his acts, in their bearing upon the charge in question. And if you find that his acts so regarded furnish the component elements of the imputed offence according to the law of this country, then that requirement of the treaty is complied with. To illustrate, I apprehend that in the case of perjury, the accused cannot be heard to say, ‘the oath on which the charge is based was administered by A.B., an officer who had no authority to administer oaths in Canada (although duly authorized in the place where the oath was taken); and, consequently, if I had done here the identical thing I did there (viz.: the taking of an oath before A.B.), perjury could not have been successfully charged against me.’ The substance of the criminality charged against the accused is not that he took a false oath before A.B, but that he took a false oath before an officer who was authorized to administer the oath. Any other view would, I conceive, simply make nonsense of the treaty.’ and
‘if you are to conceive the accused as pursuing the conduct in question in this country, then along with him you are to transplant his environment; and that environment must, I apprehend, include, so far as relevant, the local institutions of the demanding country, the laws effecting the legal powers and rights, and fixing the legal character of the acts of the persons concerned, always excepting, of course, the law supplying the definition of the crime which is charged.’


(1905) 10 CCC 80

Cited by:

CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.


Updated: 15 May 2022; Ref: scu.270746