¹ Bahama Islands, Supreme Court (1969) N.664, of February 20, 1970. Crux was subsequently returned to Vancouver for trial.

² Fugitive Offenders Act 1967, 15 & 16 Eliz. 2, c. 68. Evidence of the appliction of this Act to the Bahamas is in U.K., Statutory Instrument 1303/1967; S.I. 1904/1967; and Bahamian S.I. No. 7 of 1968 and No. 73 of 1968. Because the Bahamian Fugitive Offenders Act is essentially identical to the British Act references to sections can be to either Act.

³ Bahamian S.I. No. 7 of 1968 applies the 1967 U.K. Act to the Bahamas, and S.I. No. 73 of 1968 extends the Act between the Bahamas and designated Commonwealth countries.

⁴ Section 103 is a general provision on the method of recording evidence in criminal proceedings. Section 116 sets forth the procedure for taking depositions in committal proceedings of accused persons for trial before the Supreme Court.

⁵ A number of other arguments relating to defects in lower court procedure were also introduced and in the Court’s decision it concentrated heavily upon these in ruling against Crux.

⁶ A third prepared argument, while not employed, involved the use of the phrase “Her Majesty’s Dominions.” The expression is questionable because of the altered constitutional status of many members of the Commonwealth.

⁷ The reciprocal application of legislation in this manner is termed the inter se doctrine. However, because the description has been strongly questioned by a number of observors in recent years, it was not employed before the Court. On this doctrine, see Fawcett, J. E. S., The inter se Doctrine of Commonwealth Relations 5–6 (Athlone Press, 1958)Google Scholar and Joseph, Cuthbert, Nationality and Diplomatic Protection 53, 75 (Sijthoff, 1969).Google Scholar

⁸ R.S.C. 1952, c. 127.

⁹ This conclusion was probably implicit in an informal agreement between the Attorney General of Australia and the Solicitor General of Canada when, in 1966, they agreed that extradition could be presumed to be possible under the Canadian Act and the 1966 Australian Extradition (Commonwealth Countries) Act 1966, No. 75 of 1966, as amended by No. m of 1968. The Australians have since declared Canada to be a designated Commonwealth country: Australia, Statutory Rules, 1967 No. 46.

¹⁰ Counsel for the government of Canada relied heavily upon R. v Brixton Prison Governor, ex parte Rush, [1969] 1 All E.R. 316, 317; he argued that Lord Parker had found a basis for double criminality. Lord Parker, in his judgment, quoted section 3(1) of the British Act as follows:

3-(1) For the purpose of this Act an offence of which a person is accused or has been convicted in a designated commonwealth country (and Canada is one) is a relevant offence if . . . .

Lord Parker’s reference to “and Canada is one” is indicated as an aside to the text. However, it was only a presumption on his part and one for which he offered no justification whatsoever. It seems tenuous to employ such a presumption as a precedent for a subsequent action. Of course, double criminality and the specialty rule have been acknowledged by Canadian courts. On double criminality, see Re Brooks (1930), 54 Can. C.C. 334; and Re McCartney (1891), 8 Man. R. 367. And on the specialty rule, see R. v. Nesbitt (1913), II D.L.R. 708 (Ont); Buck v. The King (1918), 55 S.C.R. 133; In re Neilson, [1922] I W.W.R. 515 (Alta.); and R. v. Flannery, [1923] 3 D.L.R. 689 (Alta.).

¹¹ R.S.C. 1952, c. 322. This is the enabling statute for extradition treaties between Canada and foreign, non-Commonwealth, countries.

¹² U.K., S.I. 1302/1967.

¹³ Madras v C. G. Menon and another, [1954] S.C. 571 (India); (Criminal Appeal No. 33 of 1953). In response to this decision the Extradition Act, 1962, No. 34 of 1962, was enacted.

¹⁴ A somewhat similar point, disposition of nationals in the absence of an extrdition treaty, was dealt with by the Supreme Constitutional Court of Cyprus in 1961 in In re Andreas Costas Afamis, Supreme Constitutional Court (Cyprus), case #50/61, June 1, 1961. This court also rejected the applicability of the British 1881 Act to Cyprus. India has refused extradition to Kenya on much the same grounds.

¹⁵ Supra note 12.

¹⁶ U.K., S.I. 1303/1967 and S.I. 1904/1967.

¹⁷ The British extended the Act generally to the colonies by S.I. 1303/1967 and specifically to the Bahamas by S.I. 1904/1967. It was made operative in the Bahamas by their S.I. No. 7 of 1968. The 1967 U.K. Act thus became a 1968 Bahamian Act with references to Her Majesty changed to the Governor in the latter. Then, by Bahamas S.I. No. 73 of 1968 the Governor extended the application of the 1968 Bahamas Act to designated Commonwealth countries, including Canada. Bahamas S.I. No. 73 of 1968 is identical in wording to U.K., S.I. 1302/1967, the Order which had originally applied the 1967 U.K. Act to Canada.

¹⁸ For example, in 1966 a double taxation agreement was concluded between Canada and Trinidad and Tobago. This agreement was ratified in 1967 thereby raising the interesting point about the constitutional feasibility of the same Sovereign ratifying the same agreement for two of Her governments. See also Cuthbert Joseph, op. cit. supra note 7, at 174, where he suggests that the advent of the “new” Commonwealth members has radically altered inter se as practised by the “old” members.

¹⁹ It should be noted that paragraph 5 of the Preamble is careful to include a specific reference to the then Commonwealth members having “severally requested and consented” to the submission of the Statute of Westminster to the United Kingdom parliament.

²⁰ The following quotations are taken from a mimeographed copy of the decision; hence there are no page references.

²¹ This was actually the reverse of the point argued but in practice it could amount to the same thing. However, if the decisions in Government of India v. Mubarak Ali Ahmed, [1952] 1 All E.R. 1060, and Madras v.C. G. Menon, [1954] S.C. 571 (India) are compared, it can be demonstrated that in the absence of reciprocity it is possible for extradition to be one way only. The Mubarak Ali case found that there was a basis for extradition from Britain to India, while Madras v. Menon did not find for the reverse.

²² Ex parte Rush, supra note 10.

²³ Signed in Paris, December 13, 1957: 359 U.N.T.S. 273 (1960). Some examples within the Commonwealth are: New Zealand, The Extradition Act 1965, No. 44 of 1965; Kenya, The Extradition Act 1965, No. 7 of 1966; and Tanzania, Extradition Act 1965, No. 15 of 1965.

²⁴ U.K., Cmnd. 3008.

²⁵ R. v Brixton Prison (Governor) et al, Ex parte Enahoro, [1963] 2 AU E.R. 477; and Armah v. Government of Ghana et al, [1966] 3 All E.R. 177. For commentary on the latter as a political problem, see The Economist, April 30, 1966, at 456.

²⁶ For example, the transport of draft-dodgers and U.S. Army deserters back to border points, as apparently happened at Sardis, B.C., in early 1970. This incident was investigated by Judge Stewart of the County Court, New Westminster, British Columbia, at the request of the Canadian government, and his report was filed in the House of Commons, Ottawa.