Commonwealth of Puerto Rico (Applicant)
v.
Humberto Pagan Hernandez (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, November 15, 16 and 30,
1973.
Judicial review—Extradition—Refusal of warrant for—
Appeal—Dismissal by Federal Court for lack of jurisdic-
tion—Appeal to Supreme Court—Affirmation of Federal
Court of Appeal—Jurisdiction—Reference back to this Court
for determination on the merits—Federal Court Act, s.
28(1)(c).
The Commonwealth of Puerto Rico applied under section
28 of the Federal Court Act to review and set aside the
decision of the judge acting under the Extradition Act
refusing to issue a warrant for the extradition of the
respondent for trial on a murder charge. The application
came before the Federal Court of Appeal on Aug. 2, 1972
(see [1972] F.C. 1076) when the Court held that it was
without jurisdiction to entertain it. On October 29, 1973 the
Supreme Court affirmed the jurisdiction of the Federal
Court of Appeal in this matter and referred it back for
determination on the merits. On November 15 and 16, 1973,
the application was heard on the merits and dismissed—the
reasons to be delivered at a later date.
Held, the application for review is dismissed. The extradi
tion judge in reviewing the evidence applied the "probably
guilty" test and concluded that the evidence did not show
that the respondent was probably guilty. The evidence was
not sufficient to put the respondent on trial. The judge's
conclusion cannot be regarded as having proceeded from
any misdirection or error of law as to the function he was
performing so as to bring the matter within the provisions of
section 28 of the Federal Court Act.
Schtraks v. Government of Israel [1964] A.C. 556; Ex
parte Isaac Feinberg (1901) 4 C.C.C. 270; Re Latimer
(1906) 10 C.C.C. 244; Ex parte Reid (1954) 110 C.C.C.
260, applied.
APPLICATION for judicial review.
COUNSEL:
G. R. Morin and J. L. Shields for applicant.
C. C. Ruby and B. Mergler for respondent.
SOLICITORS:
Soloway, Wright, Houston, Killeen and
Greenberg, Ottawa, for applicant.
C. C. Ruby, Toronto, for respondent.
THURLOW J.—This was an application under
section 28 of the Federal Court Act to review
and set aside the decision of His Honour Judge
A. E. Honeywell acting as a judge under the
Extradition Act refusing to issue a warrant for
the extradition of Humberto Pagan Hernandez,
to whom I shall refer as the respondent, to
Puerto Rico for trial on a charge of murder. The
application carne before this Court on August 2,
1972 [1972] F.C. 1076 when the Court held that
it was without jurisdiction to entertain it. Subse
quently on October 29, 1973 the Supreme Court
affirmed the jurisdiction of this Court in the
matter and referred it back to the Court for
determination on the merits. Thereafter, on
November 15 and 16, 1973 the application was
heard on the merits and dismissed, the Court
intimating that its reasons for this conclusion
would be delivered at a later date.
The grounds upon which an application under
section 28 of the Federal Court Act may be
made, as set out in that section, are defined
broadly enough to include any question of law
or jurisdiction. The nature of the proceeding,
however, is not that of a rehearing of the matter
but is a review of the legality of what has
transpired and this Court, while authorized to
set the decision or order aside and to return the
matter to the tribunal with directions, is not
empowered, as is usual under appeal provisions,
to give the decision or order that, in its opinion,
the tribunal ought to have given. Nor is the
Court authorized to reweigh the evidence and
substitute its own view of the facts for that
reached by the tribunal. In this area the jurisdic
tion is merely to set aside a decision based on a
finding of fact that is not sustainable in law and
thus falls within the meaning of section 28(1)(c).
As I see it, it is within these limits that the
Court had authority to review the decision here
in question. By the Extradition Act, R.S.C.
1970, c. E-21 and Article X of the Ashburton
Treaty, the extradition judge is required to issue
his warrant for the committal of the fugitive for
extradition if such evidence is produced as
would, according to the law of Canada, justify
his committal for trial, if the crime had been
committed in Canada and if such evidence is not
produced he is to be discharged. Under section
475 of the Criminal Code, R.S.C. 1970, c. C-34,
a justice holding a preliminary inquiry is
required to commit the accused for trial "if in
his opinion the evidence is sufficient to put the
accused on trial" and if, in his opinion, no
sufficient case is made out he is to discharge the
accused. The standard of proof so required is
neither absolute nor precise but depends on a
value judgment of the sufficiency of the evi
dence to justify putting the accused on trial for
the alleged offence. It seems clear that at least
in cases where honest opinions may differ as to
the sufficiency of the evidence, it can scarcely
be said that there is error in law in the justice's
disposition of the case merely because a review
ing Court or some of its members might have
inclined to a different result had it been the
tribunal holding the inquiry. Something more
than that would undoubtedly be required before
a reviewing Court could be expected to interfere
even if it had jurisdiction to review the facts
and to decide the case upon its own view of
them. But where, as here, the jurisdiction to
review is confined to matters of law, apart from
misdirection or error of law in the conduct of
the proceedings, the Court, in my opinion, is
entitled to interfere only when the case is one of
so gross an error in the appreciation of the case
presented as to indicate not merely a misjudg
ment of the effect of marginal evidence but a
disregard of material before the tribunal of such
a nature as to amount to an error of law or to
give rise to an inference that some erroneous
principle has been followed and thus bring the
error within the scope of section 28(1)(c).
That the statutory provision contemplates
that there is an area of discretion within which
the opinion of the justice, if capable of being
supported as a reasonable conclusion on the
evidence, must prevail is supported by the opin
ions of at least three of the Law Lords in
Schtraks v. Government of Israel [1964] A.C.
556. Thus Lord Reid said at page 579:
This House has no wider powers than the powers of a
court. I do not find it necessary in this case to define
precisely what those powers are. The court, and on appeal
this House, can and must consider whether on the material
before the magistrate a reasonable magistrate would have
been entitled to commit the accused, but neither a court nor
this House can retry the case so as to substitute its discre
tion for that of the magistrate.
Lord Evershed, with whom Viscount Radcliffe
agreed on this point, said at page 600:
I take the proper test to be the test which was accepted by
the Lord Chief Justice, namely, that there must be before
the magistrate such evidence that, if it be uncontradicted at
the trial, a reasonably minded jury may convict upon it.
Applying this test it cannot, as it seems to me, be seriously
suggested that, upon the facts as I have stated them, there
was not before the magistrate evidence upon which, in the
proper exercise of his discretion, he could, on the charge of
perjury, commit the appellant.
In Canada the test of the sufficiency of evi
dence to put an accused person on trial which
has been applied in a number of cases to which
reference was made by the learned extradition
judge is that propounded in Ex parte Isaac
Feinberg (1901) 4 C.C.C. 270 where Wiirtele J.
said at pages 272-73:
By the Extradition Act, in the case of a fugitive who is
accused of having committed an extradition crime, such
evidence must be produced as will, according to the law of
Canada, justify his committal for trial, but subject, however,
to the provisions of the Act.
When a person is accused of having committed a crime in
Canada, he is brought before a magistrate, who holds a
preliminary enquiry, and examines the witnesses who are
called before him. The magistrate does not try the accused;
he hears the evidence adduced, and if he thinks, not that
enough has been proved to declare him guilty, but that the
evidence is at least sufficient to put him on his trial, he
commits him for trial.
Evidence to justify commitment, and not conviction, is
sufficient, and it is not necessary that it should amount to
proof of the accused guilt and be sufficient on trial to
sustain the charge. The evidence to justify the holding of an
accused for trial is only such as amounts to probable cause
to believe him guilty. It is not necessary that it be sufficient
ly conclusive to authorize his conviction. To convict there
must be evidence which leaves no reasonable doubt of guilt,
but to commit only requires that the circumstances proved
are sufficiently strong in themselves to warrant a cautious
man in the belief that the person accused is probably guilty
of the offence with which he is charged. (1 Moore, pp. 520,
521, 522). The purport of the inquiry is merely to determine
whether a case is made out to justify the holding of the
accused to ultimately answer to an indictment on which he
shall be finally tried upon the charge made against him and
at which trial he will have the right to make a full defence.
(1 Moore p. 522).
See also Rex v. Cowden (1947) 90 C.C.C. 101
at page 104; Re Goodman (1916) 26 C.C.C. 254
at pages 259-60; Re Rosenberg (1918) 29 C.C.C.
309 at page 314; and Regina v. Sednyk (1956)
115 C.C.C. 128 at page 131.
The test was put in a different form in Re
Latimer (1906) 10 C.C.C. 244 by Sifton C.J.
who said at page 247:
This constitutes the evidence that has been adduced
before this Court; and the question then arises as to my duty
under the circumstances as shewn by this evidence. As has
been stated, this is in no manner a trial of the accused. He
may be innocent or guilty of the offence of which he is
charged. The duty that is laid upon me is to consider as to
whether the evidence that has been adduced in the absence
of contradiction would be such as to justify a magistrate in a
similar case under our law committing him for the purpose
of standing his trial. Practically it amounts to the same thing
as if in a trial with a Judge and jury, there was such
evidence that the Judge would not be justified in withdraw
ing the case from the jury.
This appears to require a somewhat higher
standard of proof than the "probably guilty"
test of the Feinberg case (supra).
In Ex parte Reid (1954) 110 C.C.C. 260
Spence J. of the High Court of Justice of
Ontario (as he then was) in the course of his
reasons for discharging on habeas corpus an
accused person who had been committed for
trial referred to both tests in the following pas
sage at pages 261-62:
It has been said that the evidence to justify the holding of
the accused for trial must be such as to cause the Magistrate
to believe that the accused probably was guilty. A practical
test was suggested in Re Latimer (1906), 10 Can. C.C. 244,
as being whether on the evidence a Judge who was presiding
at a jury trial would be justified in withdrawing the case
from the jury. I am very strongly of the opinion that if I
were presiding at the trial of this charge and the evidence
adduced on behalf of the Crown against Reid was the
evidence which I have read in the transcript of the prelim
inary hearing I would be forced to discharge the accused
and would feel it my duty to do so even if his counsel failed
to make any such application. That test is of course stricter
than the one which is ordinarily applied, that is, that the
cautious man should believe on the evidence adduced at the
preliminary that the accused probably was guilty.
In Schtraks v. Government of Israel (supra)
the test was put in yet another way but the
substance of what is required by it does not in
my opinion differ from the test of whether the
case is one that the trial judge would be justified
in withdrawing from the jury. Lord Reid
expressed it thus at page 580:
Next it is necessary to determine whether the material
before the magistrate was adequate to justify committal.
The main objection to it is that the Kots or at least two of
the three were accomplices and that two of the Kots were in
prison when their statements were taken. It is not in dispute
that the proper test for the magistrate to apply was whether,
if this evidence stood alone at the trial, a reasonable jury
properly directed could accept it and find a verdict of guilty.
Lord Evershed expressed it in similar language
at page 600 in the passage already quoted from
his reasons.
Each of these tests or ways of putting a test
may, as I see it, be more or less useful to a
justice or an extradition judge, depending on the
kind of a case presented but it must, I think, be
remembered that whichever way the test is put
it can serve only as an aid to the justice or judge
in forming an opinion on the evidence, which
the statute directs him to apply, as to the suffi
ciency of that evidence to put the accused
person on trial. For this purpose I should have
thought that the minimum requirement would be
evidence upon which, if unanswered at the trial,
a jury acting reasonably might convict but the
statute does not prescribe a standard. It leaves
the standard of sufficiency to the judgment of
the justice or judge and it appears to me that so
long as his conclusion is supportable as being a
reasonable conclusion on the evidence before
him, it is not essential that it should appear that
he has applied any particular or defined stand
ard. In particular, I do not think there is any
cause for complaint that a particular standard
has not been applied if the standard actually
applied is a lower or less demanding one and the
justice or judge has nevertheless concluded that
the evidence was insufficient.
The event from which the charge of murder
against the respondent arose occurred on the
campus of the University of Puerto Rico at or
near the City of San Juan. At the material time
the respondent was enrolled as a student at the
University and he was also one of the leaders of
a student group which advocated independence
for Puerto Rico. On March 11, 1971 a disturb
ance of some proportions and duration occurred
on the campus of the University resulting from
a confrontation between student members of
the ROTC which numbered about 100 and a
much larger number of other students who, it
seems, were opposed to the presence of an
ROTC organization in the University. When vi
olence erupted the police were called in. Stone
throwing and shooting followed, in the course of
which several police officers and others were
hit and the commander of the police force was
killed. There was evidence, which the learned
judge regarded as ample, indicating that the
commander was killed by a bullet fired in a
southerly direction from a distance of about 140
feet by â person standing or crouching at or
behind the northwest corner of a monument.
There was also evidence given by Jose Raphael
Atilano, the second-in-command of the police
detachment which had been dispatched to the
University, that at or about that time he was at a
point which the plan (Ex. 2) indicates to have
been about 180 feet from the gunman and some
60 feet to the westward of the commander, that
from there he saw the gunman and heard the
shooting and he thereupon ran northerly along a
sidewalk, which is roughly parallel to the direc
tion in which the gunman had fired, in order to
get a better view of him. He said that from his
experience he was sure that the gun was a .45
calibre revolver and that he observed that the
gunman was about 5' 9" in height, that he had
sideburns and that his complexion was slightly
whiter than his own. The gunman was behind
the monument with his left hand against the
northern side of it and was holding his gun in his
right hand against the western side of the monu
ment. The witness said that he ran some 40
steps along the sidewalk, which the plan indi
cates is nowhere nearer to the monument than
some 54 feet, and that the gunman saw him
approaching, turned his face in the witness's
direction for a period which the witness demon
strated and which was said to have been some
two seconds or less, then turned and ran away.
More than a year later, before the learned
extradition judge, the witness stated positively
that the respondent was the gunman. Cross-
examination elicited the fact that the witness
had not been acquainted with the respondent
prior to March 11, 1971 and there was no
evidence that he had seen the respondent in the
meantime. There was, however, evidence that
the police had received a tip indicating that the
respondent had been the gunman whereupon the
respondent's identification card, which included
his name and photograph, had been obtained
from the University along with the cards of
some 22 others and that between March 13 and
15, 1971 the witness had been shown these
cards and a police album of photographs and
had selected the identification card of the
respondent. The respondent was arrested in
Puerto Rico on March 16, 1971 and was later
released pending judgment on an application by
him for habeas corpus and he remained at liber
ty pending judgment on an appeal from the
dismissal of that application. In the meantime a
date was set for his trial on the charge of
murder but he did not appear to take his trial
and fled to this country. No other evidence was
given either corroborating that of the witness
Atilano or so much as indicating that the
respondent was present on the campus or any
where in the vicinity on the day of the killing or
that he ever was in possession of a .45 calibre
or any other gun. At the hearing before the
learned judge counsel for the Commonwealth of
Puerto Rico took the position that the evidence
of the witness Atilano was the only direct evi
dence implicating the respondent in the shooting
and founded his case on the submission that
that evidence was sufficient for committal of
the respondent for extradition. He took the
same position on the application before this
Court.
The learned extradition judge, in a carefully
considered opinion delivered orally at the con
clusion of the hearing and in a subsequent writ
ten opinion, pointed out the weaknesses and
shortcomings of the evidence implicating the
respondent in the murder and concluded that it
was not sufficient to put the respondent on trial.
He considered himself bound to resolve any
doubt as to the sufficiency of the evidence in
favour of committal but expressed the view that
there was no doubt in his mind of its
insufficiency.
After having read and re-read the evidence of
the witnesses, Atilano and Ortiz and after hear
ing the very able argument of counsel for the
Commonwealth of Puerto Rico I am not per
suaded that the evidence was reasonably suffi
cient to warrant putting the respondent on trial.
Indeed, I find it inconceivable that a person
should be put on trial on such flimsy evidence
as a purported identification made a year after
the event by a person who did not previously
know the accused and whose only opportunity
to observe him was a fleeting one from a dis
tance of some sixty feet, if indeed he ever got
that close. The evidence of the witness having
selected the respondent's identification card is
not in itself evidence implicating the respond
ent, and in the circumstances as described it
tends to weaken rather than to strengthen the
identification made by Atilano at the hearing
since it is the person shown in the picture,
which the witness had ample opportunity to
examine, rather than the fleeting view of the
gunman that the witness would thereafter tend
to remember. Nor was there anything else to
implicate the respondent or corroborate such
identification.
This conclusion is sufficient to dispose of the
application for if the Court is not itself persuad
ed that the evidence warranted committal still
less is it persuaded that it was not open to the
learned extradition judge in exercising his dis
cretion to regard the evidence as insufficient.
It was submitted that the learned judge erred
in law in holding that the identification evidence
of the witness Atilano was of no weight or value
in the absence of supporting evidence and in
holding that the evidence of Atilano was an
opinion rather than a positive identification. I
regard these however not as rulings on ques
tions of law by the learned judge but as his
impression of the value or weight of the particu-
lar testimony. It seems perfectly obvious that on
the facts the identification could be put no
higher than an opinion which the witness had
formed and that without further supporting ma
terial or corroboration it could not reasonably
be taken seriously.
It was also urged that the learned judge erred
in law in having weighed the testimony and thus
usurped the function of the jury to determine
the credibility of the witnesses and the value of
their testimony. I do not regard it as possible,
however, for an extradition judge to perform his
function without having some regard for the
obvious weight or lack of weight of testimony
put before him. He must, I think, weigh it in a
rough scale to determine its usefulness at a trial
and what conclusions the whole or parts of it
would support. Here the learned judge on more
than one occasion mentioned that it was not his
function to weigh the evidence but simply to
determine its sufficiency and I do not think his
conclusion can be regarded as having proceeded
from any misdirection or error of law as to the
function he was performing. He applied the
"probably guilty" test and concluded that the
evidence did not show that the respondent was
probably guilty, a conclusion which, with
respect, I share, and as that is the lowest of the
several standards which I discussed earlier in
these reasons it can scarcely be said that the
conclusion could have been anything but the
same had any of the more stringent standards of
sufficiency been applied.
The application in my opinion accordingly
failed and was therefore dismissed.
* * *
JACKETT C.J. and PRATTE J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.