2ND EDIT. REVISED STATUTES 1906 REMARKS THE EXTRADITION ACT.—Continued. Sec. 35. Application of this Part. The provisions of this Part shall apply to any crime mentioned in the third schedule to this Act committed after the coming into force of this Part, as regards any foreign state to which this Part has been by proclamation declared to apply. (85) Sec. 36. Extradition where there is no extradition arrangement, or if crime not included. In case no extradition arrangement exists between His Majesty and a foreign state, or in case such an extradition arrangement, extending to Canada, exists between His Majesty and a foreign state, but does not include the crimes mentioned in the third schedule to this Act, it shall, nevertheless, be lawful for the Minister of Justice to issue his warrant for the surrender to such foreign state of any fugitive offender from such foreign state charged with or convicted of any of the crimes mentioned in the said schedule. 2. The arrest, committal, detention, surrender and conveyance out of Canada of such fugitive offender shall be governed by the provisions of Part I. of this Act, and all the provisions of the said Part shall apply to all steps and proceedings in relation to such arrest, committal, detention, surrender and conveyance out of Canada in the same manner and to the same extent as they would apply if the said crimes were included and specified in an extradition. arrangement between His Majesty and the foreign state, extending to Canada. (86) Sec. 37. Expenses of conveying out of Canada a fugitive extradited to foreign State. (87) Sec. 38. Law of Canada to govern as to crimes. The list of crimes in the third schedule to this Act shall be construed according to the law existing in Canada at the date of the commission of the alleged crime, whether by common law or by statute, and as including only such crimes of (85) Taken from subsection 2 of section 3 of the Extradition Act of 1889. (86) Taken from section 1 of the Ertradition Act of 1889. (87) Taken (unaltered) from section 2 of the Extradition Act of 1889. 2ND EDIT. REVISED STATUTES 1906 REMARKS the description comprised in the list as are, under that law, indictable offences. (88) Sec. 39. Restriction. When a warrant not to issue. No warrant shall issue under this Part for the extradition of any person, to any state or country in which by the law in force in such state or country, such person may be tried after such extradition for any other offence than that for which he has been extradited, unless an assurance shall first have been given by the executive authority of such state or country, that the person whose extradition has been claimed shall not be tried for any other offence than that on account of which such extradition has been claimed. (89) FIRST SCHEDULE. List of Crimes. The first schedule, containing a list of extradition crimes, is the same as the first schedule to the Extradition Act of 1886, with these exceptions that item 5 of the first schedule now reads, "Larceny or theft," instead of "Larceny," and item 24 of the first schedule is altered so as to read as follows:— "24. Any offence under,— (a) Part VI. of the Criminal Code, except sections 307 to (c) Part VIII. of the Criminal Code, except sections 516, (d) Part IX. of the Criminal Code; and which are not included in any foregoing portion of this schedule." (88) Taken from the first par. of sec. 3 of the Extradition Act of 1889. (89) Taken (slightly altered) from sec. 5 of the Extradition Act of Form of Order of Minister of Justice for Surrender. The forms contained in the second schedule are the same (unaltered) as those contained in the second schedule to the Extradition Act of 1886. THIRD SCHEDULE. The third schedule, containing a list of the crimes to which Part II. of the present Extradition Act is applicable, is the same as the schedule to the Extradition Act of 1889 with this exception that item 5 of this third schedule now reads, "Larceny or theft," instead of Larceny." EXTRADITION BETWEEN CANADA AND THE UNITED STATES. The Ashburton Treaty (of 1842) between Great Britain and the United States, and the subsequent supplementary conventions of 12th July, 1889, of 13th December 1900 and of 21st December 1906, make provision for the extradition, between Canada, (as a part of British Territory), and the United States, of fugitive criminals accused or convicted of any of the following crimes :MURDER. PIRACY. ARSON. ROBBERY. FORGERY; UTTERING OF FORGERIES. MANSLAUGHTER when voluntary. COUNTERFEITING; UTTERING COUNTERFEIT MONEY. EMBEZZLEMENT; LARCENY; RECEIVING any money, valuable security or other property knowing the same to have been embezzled, stolen or fraudulently obtained. FRAUD, by a bailee, banker, agent, factor, trustee, director, mem EXTRADITION WITH THE U. S.-Continued. ber or officer of any company, made criminal by the laws of both countries. OBTAINING money, valuable securities or other property BY FALSE PRETENCES. PERJURY; SUBORNATION OF PERJURY. PROCURING ABORTION. RAPE; ABDUCTION; CHILD STEALING; KIDNAPPING. BRIBERY, defined to be the offering, giving or receiving of bribes made criminal by the laws of both countries. if made criminal by the laws of both countries, AGAINST BANKRUPTCY LAW. BURGLARY; HOUSE-BREAKING; SHOP-BREAKING. REVOLT OF CONSPIRACY TO REVOLT by two or more persons on board a ship on the high seas against the authority of the master; WRONGFULLY SINKING OR DESTROYING A VESSEL AT SEA; or ATTEMPTING to do so; ASSAULTS ON BOARD A SHIP on the high seas WITH INTENT to do grievous bodily harm. CRIMES AND OFFENCES against the laws of both countries for the suppression of SLAVERY AND SLAVE TRADING. WILFUL and UNLAWFUL DESTRUCTION or OBSTRUCTION of railroads, which endangers human life. PARTICIPATION in any of these crimes, provided such participation be punishable by the laws of both countries. Extradition lies from Canada to the State of New York for an offence named in the extradition treaties between Great Britain and the United States, although such offence is not against a federal law of the United States, if, by the laws both of Canada and of the demanding State, the offence charged is criminal and within the list of crimes specified in the treaties. (90) Conspiracy to defraud is in itself not an extraditable offence between Canada and the United States, but extradition will lie as for a separate crime in respect of any overt act (of a conspiracy) which constitutes one of the crimes mentioned in the extradition arrangement. The extraditable offence of larceny, or participation in larceny is sufficiently charged in an information laid on instituting extradition proceedings therefor, if, following a charge of conspiracy to defraud between the accused and another person, and of an embezzlement and theft by such other person in pursuance of such conspiracy, the information alleges that the accused "did participate in the said offence of embezzlement and theft." (91) (90) Re Lorenz, 9 Can. Cr. Cas., 158. (91) U. S. v. Gaynor; Re Gaynor & Greene, (No. 3), 9 Can. Or. Cas., EXTRADITION WITH THE U. S.-Continued. Where extradition is sought upon a charge of participation in a theft alleged to have been committed of property of the government of the demanding country, and the demanding country produces, in support of the charge, an indictment found in such country upon a charge of conspiracy wherein the acts of theft are alleged as overt acts of the conspiracy, the demanding State is not thereby estopped from treating such overt acts as independent acts of theft for the purposes of extradition. (92) A charge of "grand larceny" is within the extradition arrangement with the United States, it being a species of "larceny." (93) It has been held that merchandise is not "other property" within the meaning of the phrase "receiving any money, valuable security or other property knowing the same to have been embezzled, stolen or fraudulently obtained," contained in the Extradition Convention with the United States, that these words "other property" refer only to property ejusdem generis with "money" and "valuable security," and that extradition does not lie for the offence of receiving an article of merchandise knowing it to have been stolen. (94) A customs officer of the United States is an "agent" of the government of that country, within the meaning of the phrase "fraud by a bailee, banker, agent," etc., contained in the Extradition Convention with the United States, and he may be extradited from Canada for "fraud by an agent made criminal by the laws of both countries," in respect of the fraudulent appraisal of goods for customs duty; and proof of a United States statute imposing a fine or imprisonment as alternative punishments for frauds by customs officers is evidence of the criminality of such frauds, although the statute does not expressly declare the same to be crimes. (95) Upon a demand of extradition for perjury it is not necessary to prove that the oath was administered with the formalities essential under Canadian law. It is sufficient if, in the foreign State, there were such observances as, in substance, constitute the administration of an oath, and such as are there recognized as the taking of a valid oath. (96) In the absence of evidence to the contrary, the crime of "child stealing" mentioned in the convention with the United States should be assumed to be identical with the offence so designated by Canadian law; but the accused may shew that the crime of (92) Ib. (93) Re Lewis, 9 Can. Cr. Cas., 233. (94) Ex. p. Cohen, 8 Can. Cr. Cas., 312. (95) U. S. v. Browne, (No. 2), 11 Can. Cr. Cas., 167. (96) Re Collins, (No. 3), 10 Can. Cr. Cas., 80. |