U.S.A. v. Gilliland

2003 BCSC 2020 U.S.A. v. Gilliland Citation: U.S.A. v. Gilliland Date: 20031114 2003 BCSC 2020 Docket: 22590 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Associate Chief Justice Dohm November 14, 2003 IN THE MATTER OF THE EXTRADITION ACT and IN THE MATTER OF UNITED STATES OF AMERICA and FREDERICK J. GILLILAND Counsel for the Attorney General of Canada on behalf of the Requesting State J.G. Johnston Counsel for Alleged Fugitive D.G. Butcher Place and Date of Hearing: Vancouver, B.C. November 14, 2003 [1] THE COURT: I set bail in this matter some time ago. The applicant, as I understand it, has been unable to meet some of the terms and wishes a review of my order. Mr. Butcher argues that I or any judge of the Supreme Court has the jurisdiction to do so. Mr. Johnston's view is that the Court of Appeal is the place for such a review. [2] Mr. Butcher relies on the Federal Republic of Germany v. Schreiber, a topical case, cited (2000), 147 C.C.C. (3d) at 404, a decision of Mr. Justice Watt of the Ontario Superior Court. Justice Watt, in interpreting the Extradition Act, concluded that a judge of the superior court of criminal jurisdiction has authority to vary a judicial interim release order or review an order made by another judge of the same court sitting as a "justice". [3] In following that decision, I make these observations: 1. The incorporation of Part XVI of the Criminal Code through s. 19 of the Extradition Act makes it apparent that judicial interim release in extradition proceedings is to be governed substantially by domestic law. This, I note, was the practice under the former Act. 2. There is nothing in s. 18(1) and s. 19 of the Extradition Act that compels any different conclusion than what was followed under the former Act. 3. The permissive language used in s. 18(2) of the Extradition Act is markedly different from the restrictive terms used in s. 522(4) of the Criminal Code (incorporated in the Extradition Act through s. 19). 4. The Extradition Act, s. 18(2), is a specific provision and, thus, some meaning or scope of operation must be assigned to it in the context provided by the more general incorporation of Part XVI of the Criminal Code. Justice Watt determined that in the case of s. 469, equivalent crimes, s. 18(2) eliminates the requirement (found in s. 680) of a direction by the Chief Justice and a hearing by a panel of judges of the Court of Appeal (unless the parties agree to a single judge). 5. If the Extradition Act, s. 18(2), was a requirement, two problems arise. The first is a practical consideration. Minor variances in terms of judicial interim release would require applications to the Court of Appeal. Second, such an interpretation of s. 18(2) would also substantially nullify the referential incorporation of Part XVI of the Criminal Code made in s. 19 of the Extradition Act. [4] Such a review may therefore occur before myself, which, I think, is the preferred way or before any other judge of the court. Judgment accordingly. "P.D. Dohm, A.C.J." The Associate Chief Justice P.D. Dohm