Supreme Court of Canada
Government of the Republic of Italy v. Piperno, [1982] 1 S.C.R. 320
Date: 1982-03-02
The Government of the Republic of Italy Appellant;
and
The Honourable Jean-Guy Boilard and Francesco Piperno Respondents.
File No.: 16828.
1982: February 2; 1982: March 2.
Present: Laskin C.J. and Martland, Ritchie, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Mandamus—Extradition proceedings against Italian citizen—Unsworn depositions taken in Italy held inadmissible by extradition judge—Whether mandamus lies to compel admission of the depositions—Whether other form of relief available—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.
Extradition—Admissibility of evidence—Unsworn depositions taken in Italy held inadmissible by extradition judge—Whether unsworn depositions admissible in Canadian extradition proceedings—Extradition Treaty between Great Britain and Italy, 1873, (1873) 6 Canada Gazette 1247 (No. 47, 23/5/1873), article XI—Extradition Act, R.S.C. 1970, c. E-21, ss. 3, 13, 16.
Appellant brought extradition proceedings against respondent Piperno. At the extradition hearings, the Extradition Judge refused to admit in evidence three documents in the form of unsworn depositions made pursuant to Italian law. Appellant’s application for mandamus to compel the Extradition Judge to admit the unsworn depositions was dismissed by the Federal Court Trial Division and the Federal Court of Appeal.
Held: The appeal should be dismissed.
Mandamus does not lie unless jurisdiction is in issue respecting the performance of a statutory duty, as where there is a denial or excess of jurisdiction. Here, even if the Extradition Judge were wrong in rejecting the unsworn depositions because they lacked quality as admissible evidence, his ruling could not be reviewed by way of mandamus since no question of jurisdiction was involved.
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Although article XI of the Extradition Treaty dealt only with sworn depositions, s. 16 of the Extradition Act provided for depositions taken in a foreign state under oath or by affirmation. Since Italian law did not provide expressly for affirmations or sworn depositions in proceeding before a juge d’instruction, the Extradition Treaty should be given a liberal interpretation to admit affirmations and to accept as affirmations depositions taken in circumstances where the deponent recognizes the importance of the truth being told on the particular occasion. Therefore, the two depositions of the deponents, who had been warned of their duties to tell the truth and were aware of penal consequences if they did not, were admissible. The deposition of the third deponent, however, was inadmissible since she was in no jeopardy and had accepted no obligation to tell the truth.
R. v. Governor of Pentonville Prison, ex parte Singh, [1981] 3 All E.R. 23; Rourke v. The Queen, [1978] 1 S.C.R. 1021; Dressler v. Tallman Gravel & Sand Supply Ltd., [1962] S.C.R. 564; R. v. N., [1980] 1 W.W.R. 68, applied; Kipp v. Attorney-General for Ontario, [1965] S.C.R. 57; R. v. Marsham, [1892] 1 Q.B. 371; R. v. Governor of Pentonville Prison, ex parte Kirby, [1979] 2 All E.R. 1094; Government of Australia v. Harrod, [1975] 1 W.L.R. (U.K.) 745, distinguished.
APPEAL from a judgment of the Federal Court of Appeal, affirming a judgment of the Trial Division, dismissing appellant’s application for mandamus against the decision of Boilard J. sitting as Extradition Judge. Appeal dismissed.
Joseph Nuss, Q.C., for the appellant.
Pierre Poupart and Michel F. Denis, for the respondents.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This case raises a question of substance and a question of procedure. It arises out of extradition proceedings in which the question of substance concerned the admissibility in evidence before the Extradition Judge of certain depositions, tendered on behalf of the Government of the Republic of Italy in seeking to extradite the respondent Francesco Piperno. Boilard J., sitting
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as Extradition Judge, held the depositions to be inadmissible. Other depositions of like character were in readiness for submission but, having regard to the ruling of Boilard J., counsel for the Italian Government decided to test it. He brought mandamus with certiorari in aid, seeking to quash the ruling and to compel the Extradition Judge to carry out a duty said to arise under article XI of the applicable Extradition Treaty to receive the proffered depositions and others like them. Thus arose the question of procedure, namely, whether mandamus would lie in respect of the allegedly erroneous ruling.
The Extradition Judge’s ruling did not end the proceeding before him. He made no order of dismissal nor, of course, any order of committal. Whatever be the outcome of this appeal, the extradition proceeding remains on foot before him. It may properly be said, therefore, that the courts before whom mandamus was sought, either at first instance or on appeal, are concerned with an interlocutory proceeding. So too is this Court.
The application for mandamus came before Addy J. of the Federal Court, Trial Division, pursuant to s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. Addy J. dismissed the application on two grounds; first, on the ground that mandamus did not lie when there was no jurisdictional error and, second, on the merits of the issue of admissibility. An appeal to the Federal Court of Appeal was dismissed in short reasons limited to the question whether mandamus would lie. That Court held that any error committed by the Extradition Judge was made in the exercise of jurisdiction. No opinion was expressed on admissibility. Leave to appeal was obtained to come here.
The extradition proceedings
Piperno was arrested in Quebec on an extradition warrant on September 18, 1981. He was admitted to bail and has been at liberty since October 15, 1981. The extradition hearing began on October 21, 1981. Three documents in the form
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of unsworn depositions were offered in evidence to the Extradition Judge. Each was made to or before a juge d’instruction in Rome by the following three persons, Stefano Lepri, Francesco Cipullo and Guiliana Conforto.
The deposition of Lepri, dated October 21, 1979, is signed by him by the juge d’instruction and contains the stamped seal of a civil and criminal tribunal of Rome. It begins with a warning to the deponent of his obligation to tell the truth, in conformity with art. 357 of the Italian Code of Penal Procedure, and recites that he has been informed of penal consequences under art. 372 of the Italian Penal Code if he gives false testimony. The deposition of Cipullo, dated November 21, 1979, is similarly signed and sealed and contains the same warning of the duty to tell the truth and of penal consequences if false testimony is given. There is this difference however in the two depositions; that of Cipullo refers to an earlier statement to the police made on May 3, 1979.
The Conforto deposition, unsworn like the other two, is dated January 24, 1980. It differs from them, however, because as a person charged with offences (although unrelated to those charged against Piperno) she was not required to answer when interrogated before a juge d’instruction and was not warned of the duty to tell the truth and of penal consequences if false testimony is given. She was only warned of consequences if she refused to answer or if she gave untrue answers with respect to her name and other particulars.
The depositions were taken in alleged conformity with Italian law and expert evidence as to that law was adduced before the Extradition Judge. I shall come to it shortly.
No issue was raised as to the relevancy of the depositions if they were admissible. Attention was, however, directed to article XI of the Extradition Treaty entered into between Great Britain and Italy in 1873 and which admittedly applies to Canada. Article XI reads as follows:
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ARTICLE XI.
In the examinations to be made in conformity with the preceding stipulations, the authorities of the State to which the demand is addressed shall admit, as entirely valid evidence, the documents and depositions taken on oath in the other State, or copies of them, and likewise the warrants and sentences issued there; provided that such documents are signed or certified by a Judge, Magistrate, or Officer of such State, and are authenticated by the oath of some witness, or stamped with the official seal of the Department of Justice or some other Department of State.
This Extradition Treaty is incorporated as part of the domestic law of Canada under s. 3 of the Extradition Act, R.S.C. 1970, c. E-21 which is in these terms:
3. In the case of any foreign state with which there is an extradition arrangement, this Part applies during the continuance of such arrangement; but no provision of this Part that is inconsistent with any of the terms of the arrangement has effect to contravene the arrangement; and this Part shall be so read and construed as to provide for the execution of the arrangement.
Although ss. 13 and 16 of this Act were brought into account by the respondent, it is clear from s. 3 aforesaid that treaty provisions prevail against them if they are inconsistent. It is desirable, however, to reproduce them in their terms, as follows:
13. The fugitive shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.
…
16. Depositions or statements taken in a foreign state on oath, or on affirmation, where affirmation is allowed by the law of the state, and copies of such depositions or statements and foreign certificates of, or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Part.
I come now to consider the expert evidence of applicable Italian law. It was given before judge Boilard by Mr. Alberto Sciollo, a judge of the Italian Cour de cassation who, at the time, was in Montreal on leave from his judicial post to repre-
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sent his country in the International Civil Aviation Organization, whose headquarters are in Montreal. He gave uncontradicted evidence.
According to the witness, a criminal proceeding under Italian law has a pre-trial stage before a juge d’instruction (like a preliminary hearing here, as I assess it) and, on sufficient proof to satisfy the juge d’instruction, an accused is sent to trial before the Assizes Court. There is no provision under Italian law for taking sworn testimony at the pre-trial stage unless because of illness a witness may not be available at the trial and excepting also testimony as to identification of an accused. However, a witness before the juge d’instruction is warned of penal consequences if he gives false evidence. The warning of penal consequences if false testimony is given does not apply, however, in the case of a witness himself or herself accused in another case. Such a witness cannot testify under oath even at the trial proper, but the evidence of the witness may be acted on by the trial judge to convict an accused on that evidence alone, although given without any warning of penal consequences if it is false.
The relevant provisions of Italian law, art. 357 of the Code of Penal Procedure and art. 372 of the Penal Code, read as follows (as translated from the French translation in the record):
[TRANSLATION] 357. (Acts prior to the deposition; swearing of witnesses for future purposes). Each witness shall be heard separately. The judge shall advise him of his duty to tell the whole truth and nothing but the truth, and make known to him the penalties applicable to persons guilty of perjury (372 Penal Code). He shall then question him as to his personal identification and any relationship of consanguinity or interest which he may have with the other parties to the proceeding, or as to other circumstances that may be useful in assessing his credibility. He shall then proceed to examine the witness.
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Witnesses shall not take oaths in the preliminary hearing, unless the law provides otherwise (313, 363). The judge shall in addition receive the deposition on oath of the witnesses he considers necessary, when he anticipates that, for reasons of health or other serious impediment, they may not appear in court[1]. In such cases the usual transcript shall be prepared, and the judge may direct, of his own motion or at the request of the prosecution or of one of the other parties (provided always that the necessary equipment is available), that the deposition shall be reproduced using recording apparatus (496 bis). The witness shall take oath according to article 449 (4622).
All the foregoing shall be mentioned in the transcript (155 foll.).
In cases of recorded depositions the provisions of paragraphs one, two, three and four of article 496 bis[2] shall apply.
…
372) (Perjury). Any person who, in giving a deposition as a witness before a judicial authority, states a falsehood or denies what is true, or withholds in whole or in part what he knows concerning the facts on which he is questioned, shall be liable to imprisonment of from six months to three years (375-377, 384; 349-352, 359, 458 C.P.P.).
In refusing to admit the proffered depositions judge Boilard acted on the submission of counsel for Piperno that depositions given neither under oath nor on affirmation did not satisfy the requirements of the applicable law. Judge Boilard appeared to apply Canadian standards, as, for example, those under the Criminal Code respecting preliminary inquiries and provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, respecting taking of evidence under oath or affirmation, on the view that there was consonance between the Treaty and Canadian law so as to justify advertence to such law. His reasons suggest that even if there was inconsistency between the Treaty and otherwise applicable Canadian law, there was a question of Canadian public policy involved requiring preference for Canadian law under which evidence must be given on oath or by
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affirmation. He did not find the English case of R. v. Governor of Pentonville Prison, ex parte Singh, [1981] 3 All E.R. 23, persuasive in its holding, inter alia, that a treaty provision referring to “sworn depositions or statements” should be liberally construed to extend to affirmations. This case was heavily relied on by counsel for the appellant Government and I will consider it in due course.
The mandamus proceedings
I have already noted that Addy J. denied mandamus. He did so because it was not a procedure open to challenge admissibility of evidence when there was no excess of jurisdiction or refusal to exercise jurisdiction and when the extradition proceedings had not yet concluded. His support of the ruling of judge Boilard on the merits was supplemented by holding the Singh case to be inapplicable to Canada and by asserting the strong policy that prevailed in Canada, especially having regard to s. 13 of the Extradition Act, against subjecting an individual to extradition process otherwise than in conformity with Canadian law, as reflected in s. 16 of the Extradition Act.
The Federal Court of Appeal refused to express an opinion on the admissibility of the depositions but held, as I have already said, that even assuming that judge Boilard was wrong in his ruling, mandamus would not lie.
It was the strong submission of counsel for the Government of Italy that the right to mandamus, the right to require the Extradition Judge to perform a statutory duty, arose under article XI of the Extradition Treaty which imperatively (“shall admit”) directed the admission of evidence as therein specified. The difficulty with this submission, giving it all the force which counsel sees in it, is that as a term of a treaty it must be, so to speak, domesticated to be enforceable in Canada and its domestic effect depends on the application of s. 3 of the Extradition Act and thus brings into
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account a number of considerations canvassed by both judge Boilard and judge Addy. On this view, I do not see how article XI of the Treaty can be treated as resting on a statutory duty going to the jurisdiction of the Extradition Judge.
A line of cases in this Court, among them Rourke v. The Queen, [1978] S.C.R. 1021, at p. 1026 and Dressler v. Tallman Gravel & Sand Supply Ltd., [1962] S.C.R. 564, at p. 569 have affirmed that mandamus does not lie unless jurisdiction is in issue respecting the performance of a statutory duty as where there is a denial or excess of jurisdiction. Moreover, the cases, for example R. v. N., [1980] 1 W.W.R. 68 (B.C.C.A.), at pp. 72-73, point to a denial of mandamus where the question to which mandamus is addressed is admissibility of evidence. Nor is the appellant assisted in claiming mandamus by the judgment of this Court in Kipp v. Attorney-General for Ontario, [1965] S.C.R. 57. This Court affirmed the issue of mandamus in that case where the trial judge had wrongly quashed an indictment before plea on the ground of duplicity when he should have tried the charge before him.
Counsel for the appellant urged that the line between refusing to accept evidence and refusing to accept jurisdiction can be a thin one and that the distinction has no validity in this case, relying for this position on R. v. Marsham, [1892] 1 Q.B. 371. It also was implicit in his submission that the liberality of approach when international comity is involved, as it is here, should extend not only to substantive matters, but also to procedures of the domestic court.
Whatever disposition there may be to take a wide view of jurisdiction in order to support mandamus, I can find no basis upon which that remedy can be available here. First, the Marsham case does not help. Although mandamus was held to lie
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to a magistrate where he rejected evidence, the English Court of Appeal held that what happened amounted to a declining of jurisdiction as to the whole inquiry before him. This was because, unlike the case where evidence is wrongly rejected on the view that it would not prove the matter into which the magistrate was bound to inquire, there the evidence was rejected (when it was integral to the inquiry) whether or not it would prove the matter in issue. The distinction is between rejection of evidence going to the entire inquiry because of its character and rejecting evidence because of its quality as proof. In the present case, the rejection of the evidence was not because its character was such that no evidence of that kind could be adduced but because it lacked quality as admissible evidence on the issues before the Extradition Judge. Even if he was wrong in rejecting it, his ruling could not be reviewed by way of mandamus, no question of jurisdiction being involved.
Second, the Extradition Judge did not stultify the inquiry before him by his evidence ruling. Judge Addy noted in the concluding paragraph of his reasons that art. 449 of the Italian Code of Penal Procedure envisages the use of affidavits and of solemn affirmations and, after proper authentication, could be used in extradition proceedings. Article 449 was, by consent, added in its French translation to the record on appeal. It reads as follows [translation from the French translation in the Record]:
[TRANSLATION] 449. (Swearing of witnesses). All witnesses, even in the capacity of informant (7 et seq.), complainant (9 et seq.) or civil party (91), shall take an oath, if they have not previously sworn (357*, 418**) and if they are not expressly exempted by law from doing so.
The presiding judge or the trial judge, having duly complied with the provisions of article 142, shall cause the witnesses to be sworn individually, as each of them appears to be heard, and shall use the following formula:
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“Aware of the responsibility which you assume before God[3] and man, do you swear to tell the whole truth and nothing but the truth?”
No person shall be allowed to take an oath who, at the time he gives evidence, has not reached his fourteenth birthday. Nevertheless, the judge shall advise him of his duty to tell the whole truth and nothing but the truth, and apprise him of the action which may be ordered with respect to persons less than fourteen years old who commit an act which the law regards as an offence (224 Penal C.).
Counsel for the appellant contended that the reference to art. 449 by judge Addy was improper and was in the face of the expert evidence that sworn evidence can only be given under Italian law at trial at the public hearing and not before a juge d’instruction. Accepting the contention that art. 449 could not be invoked to supply affidavit evidence in this case, I cannot regard judge Bollard’s ruling as amounting to a denial of jurisdiction, unless it could be said that even if Italian witnesses were brought before him (and none were so brought) he would exclude their evidence because of its character and not because of its allegedly irrelevant quality in the particular circumstances.
Third, the procedural remedies of the domestic court, invoked by way of review or appeal of rulings of an Extradition Judge, owe nothing to the Extradition Treaty. None of the Treaty’s terms affect the review or appeal procedures of the domestic court. It is the domestic law alone that determines what review or other remedies can be brought to bear upon extradition rulings or extradition decisions.
In my opinion, therefore, the Courts below were right in holding that mandamus did not lie.
Was any other form of relief available?
In the course of argument by the appellant, a question was put from the Bench as to whether
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review of judge Boilard’s ruling could be obtained by an invocation of the Federal Court of Appeal’s jurisdiction under s. 28 of the Federal Court Act. That provision reads as follows:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
(2) Any such application may be made by the Attorney General of Canada or any party directly affected by the decision or order by filing a notice of the application in the Court within ten days of the time the decision or order was first communicated to the office of the Deputy Attorney General of Canada or to that party by the board, commission or other tribunal, or within such further time as the Court of Appeal or a judge thereof may, either before or after the expiry of those ten days, fix or allow.
(3) Where the Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order.
(4) A federal board, commission or other tribunal to which subsection (1) applies may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination.
(5) An application or reference to the Court of Appeal made under this section shall be heard and determined without delay and in a summary way.
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(6) Notwithstanding subsection (1), no proceeding shall be taken thereunder in respect of a decision or order of the Governor in Council, the Treasury Board, a superior court or the Pension Appeals Board or in respect of a proceeding for a service offence under the National Defence Act.
If I am correct in my assessment of the present case as involving an interlocutory proceeding, a question arises whether it may be the subject of review under s. 28(1). The case law in the Federal Court, and especially in the Federal Court of Appeal, has tended to the view that a “decision or order” under s. 28(1) means a final determination: see Mullan, The Federal Court Act: Administrative Law Jurisdiction (1977), at pp. 22 et seq., prepared for the Law Reform Commission of Canada. I am far from wishing to be categorical on this issue because to explore it would be wrong when there was no consideration given to it in the Federal Court of Appeal and when counsel for the respondent asserted that he was taken by surprise when the matter was raised.
It would be improper, therefore, to turn this mandamus proceeding into something else not heretofore considered. I should not leave s. 28 without adverting to the provisions of s. 28(4) but, again, I cannot consider this to be before this Court for the determination of its application here.
The admissibility of the evidence
Although my view that mandamus does not lie is enough to dispose of this appeal here, as it was similarly disposed of in the Federal Court of Appeal, the substantive issue is of considerable importance and deserves to be addressed, as it was by counsel before this Court and as it was by Addy J. at first instance in the Federal Court. Moreover, since the extradition hearing has not yet concluded and remains alive before judge Boilard, a multiplicity of proceedings will be avoided if the merit of his ruling is reviewed now rather than awaiting a final decision from him on the request for extradition.
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There are two critical questions that must be answered in assessing the correctness of judge Boilard’s ruling and its affirmation by judge Addy. The first is whether article XI of the Extradition Treaty is an exclusive reference to admissible documents or depositions, and only if taken on oath and authenticated by oath or by official seal, or whether it permits also documents or depositions taken on affirmation and, if not, whether the provisions of article XI may be supplemented by reference to s. 16 of the Extradition Act. For convenience of assessment of these matters, I reproduce again the aforesaid article XI and s. 16, which are as follows:
ARTICLE XI.
In the examinations to be made in conformity with the preceding stipulations, the authorities of the State to which the demand is addressed shall admit, as entirely valid evidence, the documents and depositions taken on oath in the other State, or copies of them, and likewise the warrants and sentences issued there; provided that such documents are signed or certified by a Judge, Magistrate, or Officer of such State, and are authenticated by the oath of some witness, or stamped with the official seal of the Department of Justice or some other Department of State.
…
16. Depositions or statements taken in a foreign state on oath, or on affirmation, where affirmation is allowed by the law of the state, and copies of such depositions or statements and foreign certificates of, or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Part.
The second question is whether there is a paramount public policy or other limitation in Canadian law which would preclude acceptance of the depositions proffered in this case if they were otherwise admissible.
In my opinion, even if it be the case that article XI of the Extradition Treaty must, in literal compliance with its terms, be limited to depositions taken on oath, I would not regard it as inconsistent to supplement article XI by the provisions of s. 16 of the Extradition Act which provides for deposi-
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tions taken in a foreign state to be either on oath or on affirmation where affirmation is there allowed. This does not advance the matter when there is no express provision for affirmations as there is none for sworn depositions under Italian law in proceedings before a juge d’instruction. It remains to consider whether what occurred here may be regarded as an equivalent in applying considerations of comity.
I come in this respect to the recent judgment of the English Queen’s Bench Division in R. v. Governor of Pentonville Prison, ex parte Singh, supra. It involved habeas corpus challenging a warrant of committal for the extradition of the applicant Singh to Norway where he was wanted in respect of various drug offences. The Extradition Treaty between Great Britain and Norway was also concluded in 1873 and includes article X which is in terms similar to article XI of the Treaty with Italy involved here. Both Ackner L.J. and Skinner J. who heard the application were of the opinion that the words “sworn depositions or statements of witnesses” should be construed as extending to affirmations. They so held on the basis of giving an extradition treaty a liberal construction and, to a degree, on the basis of the course of English legislation which recognized affirmations although not brought directly into the Treaty. After the Treaty was signed on June 26, 1873 but prior to an implementing Order in Council on September 13, 1873, the Extradition Act, 1873 was passed on August 5, 1873 and it provided as follows in s. 4:
…the provisions of the principal Act relating to depositions and statements on oath taken in a foreign state, and copies of such original depositions and statements, do and shall extend to affirmations taken in a foreign state, and copies of such affirmations.
The critical question then became whether the depositions taken from witnesses in Norway involved affirmations. Section 168 of the Norwegian Penal Code provided a penalty of imprison-
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ment for giving false testimony before a Court, the prosecution or other public authority. The Norwegian Penal Code also forbade the taking of an oath by persons who, inter alia, were under suspicion of guilt of the act which is the subject of investigation. Here the depositions were by accomplices, and hence they could not be sworn. However, they accepted that the statements that they had made were accurate; the statements were dictated into the court record by the judges and they were signed by the witnesses. Three of the witnesses later stated that they were aware of the penal consequences if false testimony was given and the fourth said that he did not know of the penal provision when he gave his evidence but said it would have been the same even if he had known of it and he repeated that he had told the truth.
Both judges in the Singh case held the depositions to be admissible as affirmations. Ackner L.J. said this (at p. 27):
…it is agreed that the mere signature to a document or the verbal acknowledgment that its contents are correct cannot amount to an affirmation. Where then is the line to be drawn?
The answer cannot be precise: it must be a matter of fact and degree dependent on the particular circumstances of the case. I do not consider that the affirmation need take place prior to the making of the statement. What is required, where the statement has been made, is its adoption in circumstances which recognise the gravity and importance of the truth being told on the particular occasion. I would not necessarily accept that the mere acknowledgment, albeit before a judicial authority, that what has been previously said is the truth would amount to an affirmation. But in this case the acknowledgment before the judicial authority was made after the terms or the substance of s 168 of the Norwegian Penal Code was drawn to the attention of each of the alleged accomplices. The fact that the provisions of this section were not drawn to their attention initially when they appeared before the judge does not seem to me, in the circumstances of this case, to make any material difference. They were brought back before the court within a very short time of their initial appearance and their subsequent acknowledgment in the circumstances which I have described of the truth of what they had previously said amounted, in my judgment, to a sufficient acknowledgment.
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I am of the opinion that this Court should take the same liberal view here with respect to the depositions of Lepri and Cipullo. Each was warned of his duty to tell the truth and each was aware of penal consequences if he did not. Each signed his deposition which was duly authenticated by a juge d’instruction. However, those considerations do not apply to Conforto. The consequences, not penal, in her case were merely that her evidence might be acted on by the trial judge to convict the accused; she herself was in no jeopardy and she had not accepted any obligation to tell the truth. In my opinion, therefore, her deposition was not admissible before the Extradition Judge.
Counsel for the respondent Piperno relied on R. v. Governor of Pentonville Prison, ex parte Kirby, [1979] 2 All E.R. 1094. That case had to do with the contents of the evidence brought by way of deposition before the Extradition Judge and with its consequent admissibility. It was inadmissible because under the English Fugitive Offenders Act 1967 it did not satisfy admissibility under English rules of evidence which applied to extradition proceedings. The Kirby case is of no assistance here nor is the judgment of the House of Lords in Government of Australia v. Harrod, [1975] 1 W.L.R. (U.K.) 745, which dealt with matters not involved in the present proceeding.
For the foregoing reasons, it is my opinion that the Lepri and Cipullo depositions are admissible but not that of Conforto.
I would, however, dismiss the appeal on the ground that mandamus does not lie. The respondent is entitled to costs.
Appeal dismissed with costs.
Solicitor for the appellant: Joseph Nuss, Montreal.
Solicitors for the respondents: Pierre Poupart and Michel F. Denis, Montreal.