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Executive and judicial discretion in extradition between Canada and the United States Botting, Gary Norman Arthur 2004

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Executive and Judicial Discretion in Extradition Between Canada and the United States by Gary Botting B.A., Trent University, 1968 M.A., Memorial University of Newfoundland, 1970 Ph.D., University of Alberta, 1975 M.F.A., University of Alberta, 1982 LL.B., The University of Calgary, 1990 LL.M., the University of British Columbia, 1999 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA March 2004 © Gary Botting, 2004 Executive and Judicial Discretion in Extradition between Canada and the United States ABSTRACT This dissertation examines the historical development of judicial and executive discretion in successive extradition treaties, statutes and cases in Canada and the United States, and the ways in which extradition law has shifted from an initial emphasis on judicial discretion to a marked emphasis in recent years on executive discretion. In particular, Canada's Extradition Act (1999) delineates a relationship between the executive and judiciary in which most discretionary decision-making powers are assigned to the Minister of Justice rather than to the courts. Under the new legislation, which is largely a codification of the several opinions of LaForest J. of the Supreme Court of Canada, superior court judges, despite all their experience and training in the law, are put in the position of administrative clerks with little or no significant judicial discretion. It is argued that by granting increased powers to the Minister, the Act compels both the Minister and the courts of appeal to exercise their discretion more often, more carefully and more fairly than they have used it in the past in considering whether to order surrender for extradition from Canada to the United States. Judicial review should be considered an automatic part of the extradition process. Indeed, where the Minister fails to exercise discretion with respect to areas that traditionally have fallen under his domain - such as the discretion to refuse extradition without assurances that the death penalty will not be sought, or to refuse extradition in light of abuse of process - the Supreme Court of Canada has of late shown a willingness to use judicial review to halt extradition. Given the recalcitrance of the Minister to use his expanded discretion, the Act may need to be redrafted to grant back to extradition judges discretionary powers that they traditionally enjoyed, including the power to assess whether the conduct underlying charges brought in an extradition request are of a political character. ii Executive and Judicial Discretion in Extradition between Canada and the United States iii Executive and Judicial Discretion in Extradition Between Canada and the United States Table of Contents Abstract . . . . . . . . . ii Table of Contents . . . . . . . . iii Preface . . . . . . . . vi Acknowledgements . . . . . . . . xviii Chapter One Introduction . . . . . . 1 1. "Extradition" Defined . . . . . . 1 a) Extradition Agreements . . . . 4 b) Executive Prerogative . . . . . 5 c) Enabling Legislation . . . . . 5 d) Extraditable Offences . . . . . 6 e) Dual Criminality . . . . . . 7 f) The Rule of N o n - I n q u i r y . . . . . 8 g) To Extradite or Prosecute . . . . 8 h) Double Jeopardy . . . . . . 9 i) The Rule of Specialty 10 j) The Political Offence Exemption . . . 11 k) Other Procedures . . . . . 12 2. Executive vs. Judicial Discretion . . . . 14 a) Executive Discretion . . . . . 17 b) Judicial Discretion . . . . . 19 3. The LaForest Factor . . . . . . 24 4. Overview . . . . . . . . 34 Chapter Two Executive Prerogative and Judicial Interpretation: A Brief History of Extradition Law in North America 39 1. The Jay Treaty (1794-1807) 39 2. In the Absence of Treaty (1807-1842) . . . . 45 3. The Many Hats of John Beverley Robinson . . . 49 4. Ashburton-Webster Treaty and the Rise of Judicial Prerogative 61 5. The Post-Confederation Era . . . . . 69 6. Expansion of Judicial Discretion at the Turn of the 20th Century 73 7. Judicial Refinement of the Rule of Specialty . . . 79 8. Judicial Discretion Between the Wars . . . . 83 9. The Second World War 93 10. The Post-War Years 94 Executive and Judicial Discretion in Extradition between Canada and the United States iv Chapter Three The Political Climate Underlying Negotiations of a Comprehensive Extradition Treaty . . 99 1. Federal Limitations on Extradition Judges . . . 99 2. Ruby's Insistence on Proper Exercise of Judicial Discretion . 102 3. Judicial Discretion Trumps U.S. Persistence: Re Hernandez . 108 4. Double Criminality Revisited . . . . . I l l 5. Interpreting the Outgoing Treaty . . . . 113 6. Leonard Peltier and the AIM Revolt . . . . 118 Chapter Four Executive and Judicial Discretion in the Canada-U.S. Treaty . . . . 126 1. Judicial Interpretation of Extraditable Offences . . 126 2. Judicial Limitation of Double Jeopardy . . . 133 a) Gallants v. Pallanck (1977) . . . . 133 b) Schmidt v. The Queen (1987) . . . . 136 c) Double Jeopardy and Executive Discretion . . 144 4. Offences of a Political Character. . . . . 1 4 6 a) Limiting Political Offences . . . . 146 b) Exercise of Judicial Discretion in Pitawanakwat (2000) 150 5. Treatment of Minors . . . . . . 156 6. The "No Death Penalty" Assurance . . . 1 5 9 a) An Invitation to Exercise Executive Discretion . 159 b) Kindler and Ng 160 c) Gervasoni . . . . . . 163 d) U.S.A. v. Burns . . . . . . 164 7. The Case of Robert Judge . . . . . 1 7 0 8. Remedies, Recourses and the Charter . . . . 172 9. Fundamentals . . . . . . . 175 10. Sufficiency of Evidence . . . . . 176 11. Timing . . . . . . . . 181 12. The Rule of Specialty . . . . . 183 13. Mutual Cooperation . . . . . . 186 14. Joint Jurisdiction to Prosecute . . . . 190 Chapter Five The Current Legislative Scheme, Part I: From Request to Hearing . . . . 195 1. The Legislative Scheme . . . . . . 195 2. Executive Discretion in the Authorization Process . . 201 3. Diminished Role of the Judiciary in the Pre-Hearing Process 212 4. Diminished Judicial Discretion in the Extradition Hearing . 213 a) The "Preliminary Inquiry" Standard . . . 213 i) The Extradition Act and the Criminal Code . 213 ii) Section 29 and the Sheppard Test . . 217 iii) Whittling Away the Sheppard Standard . 224 Executive and Judicial Discretion in Extradition between Canada and t e United States v Chapter Five a) (continued) iv) Publication Bans . . . . 229 v) Building a Record and Transmitting a Report 231 b) Admissible Evidence . . . . . 232 c) Diminished Discretion to Examine Foreign Law . 242 d) The "Rule of Non-Inquiry" As a Fetter to Discretion . 244 e) Limited Charter Jurisdiction . . . . 247 Chapter Six The Current Legislative Scheme, Part II: From Surrender Order to Judicial Review . 257 1. To Surrender or Not to Surrender . . . . 257 a) The Increased Powers of the Minister of Justice . 257 b) To Extradite or Prosecute . . . . 271 c) Holding All the Marbles 276 2. Appeal and Judicial Review . . . . 285 a) A Dual Process . . . . . . 285 b) The Appeal Process . . . . . 287 c) Judicial Review . . . . . . 290 i) Gwynne v. Canada (Minister of Justice) . . 293 ii) U.S.A. v. Burns . . . . 297 3. The Minister's Final Decision . . . . . 303 4. Ministerial Discretion in Extradition to Canada . . 308 5. Transitional Provisions . . . . . . 310 Chapter Seven Extradition in the New Millennium . . 312 1. Terrorism: The Canadian Connection . . . . 3 1 2 a) Before and After 9/11 312 b) Lax Immigration Laws Or Racial Profiling? . . 317 2. Anti-Terrorism Legislation and the Political Offence Exemption 333 3. Alleged Terrorists: To Extradite or Prosecute? . . 340 4. Executive Discretion to Refuse Extradition . . . 349 5. Redeeming the Role of the Judiciary . . . . 354 Chapter Eight Conclusion . . . . . . 359 Extradition between Canada and the United States: A Bibliography A. Articles B. Books and Theses . . . • • 371 371 378 Executive and Judicial Discretion in Extradition between Canada and the United States vi PREFACE As a law student at the University of Calgary in 1990,1 was required to complete an advanced criminal law practicum for Calgary lawyer Don McLeod, who assigned me to do background legal research on the Charles Ng case, in which the accused was alleged to have serially murdered at least eleven men, women and children and buried them in a back yard in rural California. The State of California made it clear that if Ng was returned to the United States, prosecutors would seek the death penalty. The Treaty on Extradition between Canada and the United States1 provides that where a person is sought for a crime that is punishable by the death penalty, the requested country has the discretion to refuse to surrender the accused unless the requesting country gives an assurance that the death penalty will not be sought. The Ng2 case was sufficiently gruesome on its facts that the Supreme Court of Canada held that punishment for such crimes was a matter for the trial judge and jury in the receiving jurisdiction to determine. The Court decided that it would not shock the conscience of Canadians to send Charles Ng back to California to face trial for a series of murders even though, if found guilty, a jury would likely recommend the death penalty. I represented several refugee claimants, including the first group of Chinese students to seek refugee status in the wake of the Tiananmen Square "massacre," as it was 1 Can. T.S. 1991 No. 37, Article 6. 2 Re Ng (1988), 93 A.R. 204 (Q.B.); (1991), 67 C.C.C. (3d) 61, [1991] 2 S.C.R. 858 (S.C.C.); Ngv. Canada (1989), 97 A.R. 241 (Alta. C.A.), leave to appeal to S.C.C. refused [1989] 2 S.C.R. ix. 3 U.S.A. v. Burns (2001), 151 C.C.C. (3d) 97, [2001] 1 S.C.R. 283 (S.C.C), (1997), 116 C.C.C. (3d) 524, 8 C.R. (5th) 393, 152 W.A.C. 59, 45 C.R.R. (2d) 30 (B.C.C.A.). Executive and Judicial Discretion in Extradition between Canada and the United States vii then known.4 The students had all been outspoken at a May, 1989 rally in Calgary against their homeland, only to discover that their activities had been photographed and documented in the Chinese press. The students could not afford lawyers, and at that time law students could appear as their agents in hearings of the Refugee Board and even in the Federal Court.5 It was argued that if these students were ever required to go home, they would face criminal charges for their activities in Canada, which might be termed treasonous or seditious in China, notwithstanding the legality of their actions under Canadian law. I also represented two American clients in refugee hearings — Joel Slater and Howard Pursley. Slater had renounced his United States citizenship years earlier while in Australia, and claimed to be stateless - grounds for claiming Convention refugee status. The Canadian Immigration and Refugee Board issued a departure notice, but Slater failed to leave the country. He was then ordered removed, and immigration officers arrested him and took him to the border. A short time later, he returned to Canada, where he was arrested and held in custody. Once again his refugee claim failed and this time he was ordered deported. Howard Pursley claimed to have been beaten up by federal agents in Texas. He fled north to Canada via Idaho, allegedly uttering NSF cheques en route. Texas did not want to extradite Pursley, but made it clear to Canadian immigration officials that they would be 4 Including Re Z. (R.K.) (1989), Immigration and Refugee Appeal Board, CRDD, [1989] D.S.S.R. No. 119 (16 November 1989); Re Z (M.O.) (1989), Immigration and Refugee Appeal Board, CRDD, [1989] D.S.S.R. No. 275 (17 August 1989); Re D. (X.D.) (1989), Immigration and Refugee Appeal Board, CRDD, [1989] D.S.S.R. No. 274 (16 August 1989). 5 Pursley v. Canada (Minister of Employment and Immigration) (1989), Federal Court Trial Division, [1989] A.C.W.S.J. LEXIS 13345; [1989] A.C.W.S.J. 53161; 15 A.C.W.S. (3d) 315, [1989] F.C.J. No. 335 [1989] A.C.F . No. 335 (29 April 1989), per Muldoon J. As a law student, I was allowed by Muldoon J. to represent Pursley in an application for interim injunctive relief with certiorari in aid in the Federal Court Trial Division (although the application was dismissed), after being denied permission to advance an application for habeas corpus in the Alberta Court of Queen's Bench. Executive and Judicial Discretion in Extradition between Canada and the United States viii happy to receive him in Texas. His credible basis application for refugee status failed, and a departure notice was issued giving him notice to leave the country by a specified time. When he failed to comply in time, a removal order was issued, and he was arrested and driven to the Montana border. Under United States law, he was not subject to interstate rendition from Montana to Texas in the absence of a formal application from Texas. After living in Montana for a few weeks, Pursley returned to Canada and at the border once again claimed refugee status. This time, he was ordered deported. Escorted by a Canadian immigration officer, he was flown to Dallas, Texas, where the local police awaited his arrival. This amounted to a form of disguised extradition, for without a formal application from the Governor of Texas to the United States Secretary of State, Pursley could not have been extradited legally. In 1990,1 articled for the controversial Victoria lawyer Douglas H. Christie and had occasion to do research for the Zundel6 and Finta1 cases, each of which eventually involved issues of returning the accused to his homeland. Ernst Zundel was accused of spreading hate literature in Germany (albeit from a Canadian address), and Imre Finta was charged with having committed war crimes in Eastern Europe during the Second World War. Both defendants were acquitted of criminal charges and allowed to stay in Canada. In the meantime, Germany convicted Zundel in absentia of Holocaust denial, basing the conviction on literature emanating from his Canadian-based Samisdat organization. Later, when the Government of Canada outlawed his anti-Semitic, Holocaust-denying website, Zundel, a long-time permanent resident of Canada who had been denied Canadian 6 R. v. Zundel (1987), 58 O.R. (2d) 129 (C.A.); R. v. Zundel (No. 2) (1992), [1992] 2 S.C.R. 731. 7 Eventually reported as R. v. Finta, [1994] 1 S.C.R. 701. Executive and Judicial Discretion in Extradition between Canada and the United States ix citizenship, married an American and moved to Tennessee, from where he continued running his website. In 2003, the United States returned him to Canada, his visa having lapsed. Certified a security risk to Canada by the Minister of Citizenship and Immigration and the Secretary of State, his claim for refugee status was dismissed. He remained in custody until his deportation to his native Germany. Once called to the bar in British Columbia in 1991,1 represented several clients facing extradition, including Gerald Gervasoni,8 who was charged with first degree murder in Florida, a retentionist state. The Minister determined through informal diplomatic channels that the United States would not be seeking the death penalty in the strangulation death of Gervasoni's girlfriend. Following her death, Gervasoni moved to Canada and under an assumed name lived for 12 years on Saltspring Island, British Columbia, where he became a popular member of the Junior Chamber of Commerce, participating in amateur sports including baseball and hockey. He was finally identified by a television viewer watching a replay of a program about the young woman's murder on America's Most Wanted. After the extradition hearing determined that there was no legal bar to returning Gervasoni to Florida for trial, the then Minister of Justice, Alan Rock, ordered Gervasoni to be surrendered. Although his staff had been informed "informally" that the United States did not intend to seek the death penalty, the Minister had not obtained anything in writing pursuant to Article 6 of the Treaty, nor could the representative of the Department of Justice provide information as to who had provided the verbal assurance. The British Columbia Court of Appeal held that the Minister had the discretion to rely upon the 8 Eventually reported as Gervasoni v. Canada (Minister of Justice) (1996), 119 W.A.C. 141 (B.C.C.A.), leave to appeal to S.C.C. refused 137 W.A.C. 240«, 204 N.R. 398«. Executive and Judicial Discretion in Extradition between Canada and the United States x representations of the United States, however informal, suggesting that should the Minister's reliance on the vague and unspecified American assurances prove to be ill-founded, there would likely be diplomatic intervention at some level. The Florida prosecutor in the Gervasoni case had a reputation that included allegedly putting notches in his belt with every successful execution. A journalist from Osceola County who had been in the prosecutor's office reported that he kept on his office wall photographs of the hapless individuals who had been electrocuted consequent to his prosecution (seven in 1997 and counting), and that he sometimes wore a yellow necktie embroidered with an electric chair. Whether this was tasteless black humor, true sadism or merely urban legend seemed moot when he declared to the press after Gervasoni's surrender that he hadn't quite decided yet whether he was seeking the death penalty, and wouldn't be rushed since he had 45 days to make up his mind. When that statement, widely published in the press, came to my attention, I protested to counsel for the Minister of Justice, and a round of quiet diplomacy eventually led the prosecutor to reverse himself. Sometimes extradition legislation has an effect far beyond what Parliament initially intended, as was reflected in the many criminal cases in which the "Sheppard Test" was applied to preliminary hearings. The Extradition Act describes the extradition hearing being analogous to a preliminary inquiry. The extradition case U.S.A. v. Sheppard9 described the test for the standard of evidence as being the same duty "as that which governs a trial judge sitting with a jury in deciding whether the evidence is 'sufficient' to 9 U.S.A. v. Sheppard (1976), (sub nom. U.S.A. v. Shephard) 34 C.R.N.S. 207, 30 C.C.C. (2d) 424 (S.C.C). Executive and Judicial Discretion in Extradition between Canada and the United States xi justify him withdrawing the case from the jury."10 In the 1990's, other extradition cases slowly lowered the evidentiary threshold required for extradition, most markedly in U.S.A. v. Wagner,l{ where David Wagner was charged with the 2 a.m. abduction and robbery of a woman in Redmond, Washington. The woman had selected Wagner's mug shot from a photo line-up - the only evidence against him in that particular case. Wagner's employer testified, with reference to work sheets, that Wagner had reported to work on Saanich Peninsula at 8 a.m. that morning, riding up on his bicycle as he usually did. The extradition judge found the evidence that he was on Vancouver Island at the time of the alleged crime - a day's return journey away from Redmond - was "powerful." Nonetheless, Oppal J. issued an order of committal for surrender, saying that he was limited to consideration of the evidence presented by the United States in the authenticated record. The Minister ignored the judge's clear suggestion that Wagner had a credible alibi, saying that that issue was for the American trial court to consider. In reviewing the Minister's decision, the British Columbia Court of Appeal interpreted the Sheppard test virtually out of existence. Ryan J. A. took the remarks of Ritchie J. in Sheppard out of context. Ritchie J. had stated that the extradition judge is to decide "whether the evidence is 'sufficient' to justify him withdrawing the case from the jury and this is to be determined according to whether there is any evidence upon which a reasonable jury properly instructed could render a See Extradition Act, S.C. 1999 c. 18, s. 29 (1): A judge shall order the committal of the person into custody to await surrender if: (a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner. 11 U.S.A. v. Wagner, (1995), 104 C.C.C.(3d) 66 (B.C.C.A.), leave to appeal to S.C.C. refused [1996] 2 S.C.R. xi at 68-69. Executive and Judicial Discretion in Extradition between Canada and the United States xii verdict of guilty."12 Instead of focusing on sufficiency of the evidence to support a possible verdict of guilty, Ryan J.A. focused on the words "any evidence," holding that if there was "any" admissible evidence against the accused (as opposed to "no" evidence), extradition should follow. The photographic line-up, however suspect, constituted "some" evidence, the court ruled. In an application for leave to appeal to the Supreme Court of Canada, I argued that the decisions of the Minister and the Court of Appeal to ignore strong alibi evidence in favour of scant and deficient affidavits that imported a defective identification process offended "the Canadian sense of what is fair, right and just" and therefore violated sections 6 and 7 of the Charter.13 Oppal J. in Wagner had conceded this point, but found that the standard of proof set out in the Extradition Act was saved by s. 1 of the Charter. Unfortunately, Wagner's application for leave to appeal came at a time when the Supreme Court of Canada was not disposed to hear appeals in extradition matters. The decisions of the various courts of appeal became the variable standard for extradition across the country. In British Columbia, the standard of evidence required for extradition (and by extrapolation for preliminary inquiries) was reduced from that set by Sheppard (whether there is evidence to justify putting the case before a jury for trial) to the ridiculously low threshold set in Wagner (whether there is any evidence that could be put to a jury). In the 1990's, extradition law was in flux not only in terms of shifts in the attitude of the Supreme Court towards the death penalty and the standard of evidence required to make out a prima facie case, but also in terms of shifts in attitude of successive ministers of 1 2 U.S.A. v. Sheppard, supra, note 9, at 434, per Ritchie J. See pp. 205-206 infra. 1 3 Citing Jamieson v. Minister of Justice of Canada et al. (25 August 1974), Montreal Registry No. 500-10-000321-933 (Quebec C.A.) per Fish J.A. at 14, 16-17, 19-20, 31, 34. Executive and Judicial Discretion in Extradition between Canada and the United States xiii justice. In U.S.A. v. Witney,H for example, Allan Rock stated that some 30 letters from the community expressing support for a convicted robber who had escaped from lawful custody in the United States years earlier were sufficient to raise a humanitarian concern, given Mr. Witney's long-standing reputation as a restaurateur in Victoria. Three years later, in U.S.A. v. Stewart,151 presented Mr. Rock's successor, Anne McLellan, with 300 letters from the community expressing similar sentiments with respect to a popular building inspector in neighbouring Saanich who faced 30 years in prison and a maximum million dollar fine for alleged extortion and "bank fraud" in the amount of $3,600 - an American federal offence under anti-racketeering legislation. The allegation had been brought against Stewart, formerly the vice-president of a Sacramento bank, by a person already accused of the crime. Ms. McLellan was unmoved by wave after wave of letters of entreaty not to send Stewart back to face at least a year of incarceration as he awaited trial. The bank that was the complainant in the case had already received by a default order some U.S.$53,000 in savings and pension funds that were held in Mr. Stewart's name, rendering him unable to afford an American lawyer. In its judicial review of the Minister's order to surrender, the British Columbia Court of Appeal determined that Stewart could not be extradited for extortion - the American law did not require evidence of a threat or intent to threaten as was required in Canada, but only a subjective fear on the part of the putative victim. Ultimately, Stewart came to a plea-bargain arrangement and waived extradition, returning to the United States to face charges for ordinary fraud. 1 4 Unpublished reasons of the Minister of Justice, Allan Rock, 23 March 1995. 15 Stewart v. Canada (Minister of Justice) (1998) (sub nom. U.S.A. v. Stewart), 131 C.C.C. 423 (B.C.C.A.), at 434-436; U.S.A. v. Stewart (1997), 120 C.C.C. (3d) 78 (B.C.C.A.) Executive and Judicial Discretion in Extradition between Canada and the United States xiv Stephen Schrang, a Canadian, and his wife Diane, an American, worked for a tent-treating plant in St. Louis which primarily produced tents for use in the United States military establishment. The owner of the company made it clear that he was interested in selling the operation, and the Schrangs put up their life savings as a down-payment on the company, which on the books had several million dollars owing to it in accounts receivable for tents produced during Operation Desert Storm in 1991. Unknown to the Schrangs, the former owner had skimped on the water-proofing for the Desert Storm tents, reasoning that since the tents were to be used in the desert, they would not need to meet the usual stringent waterproofing requirements of the United States military. Since there was also a very tight deadline, the tents went out uninspected. However, spot checks by the U.S. Department of Defence found the tents defective. That was why the United States had not paid the bill. The Schrangs bought the factory and warehouse, which contained hundreds of barrels of fire-retardant chemicals and mould inhibiters - but no waterproofing. The former owner offered to work for the Schrangs as their foreman, since he knew the procedures required to prepare the tents for market. Unknown to Stephen Schrang, the new "foreman" continued producing defective tents. When it became clear that the United States was not going to pay the substantial outstanding bill for the tents, the Schrangs declared bankruptcy, and after unsuccessful attempts to resell the company, locked up the factory and warehouse with all barrels of chemicals intact. They had no resources to dispose of the dozens of barrels of toxic chemicals and other hazardous wastes. The Schrangs moved back to Canada with their two sons, living on the Nitinat Reservation on western Vancouver Island. Unfortunately, in the year after the Schrangs padlocked the factory door and walked away, vandals broke into the warehouse and set fire to it. The St. Louis fire department Executive and Judicial Discretion in Extradition between Canada and the United States xv was able to put out the blaze and secure the building. However, vandals broke into the warehouse a second time, and this time the fire reached the barrels and resulted in a toxic spill. At that point, the Schrangs, as the sole two officers of the corporation, were charged with abandonment of toxic waste and hazardous substances. The United States initiated an application for extradition against Stephen Schrang, but not against Diane. Over the next two years, Stephen fought extradition, finally losing his application for judicial review.16 Although she was not the subject of the extradition proceedings, immediately after the Court of Appeal decision came down in her husband's case, Diane was arrested by Canadian immigration officials in Nitinat for a supposed immigration violation. Recognizing that the immigration officials were attempting to use a disguised form of extradition, I brought an application for habeas corpus with certiorari in aid on behalf of Diane Schrang, appearing before Melvin J. in the Supreme Court of British Columbia in Victoria. At the time the application was brought, the judge seemed prepared to grant an order, but wanted evidence as to Ms. Schrang's status. Counsel for the Department of Justice received word that the immigration officials had not yet reached the ferry terminal. All the more reason, I urged the court, to make an order now, before the judge lost jurisdiction. In a bizarre play-by-play description of what was going on in the outside world, the court heard five minutes later that immigration officials had arrived at the ferry terminal. Then it was reported that ferry traffic had been held back as the immigration officers' car boarded the ferry. Five minutes after that, it was reported that Diane Schrang had been handed over to a United States marshal. At that point, Melvin J. declared the whole exercise moot, since Ms. Schrang was no longer in Canadian custody, and was no 1 6 U.S.A. v. Schrang (1997), 114 C.C.C. (3d) 553 (B.C.C.A.). Executive and Judicial Discretion in Extradition between Canada and the United States xvi longer in British Columbia, the deck of the American ferry being deemed United States territory despite the fact that the boat was still docked at the Sidney ferry terminal. Thus Immigration Canada effected a disguised extradition with the apparent full knowledge, if not the tacit blessing, of the court. Diane Schrang's transfer by Canadian immigration officials to the United States marshal was accomplished without any formal extradition application or hearing. Since she was married to a Canadian, and her two children were Canadian-born, her deportation/extradition at the whim of immigration officials seemed an abuse of process. Their two children remained in Canada with friends until the dust settled. Unfortunately, that took an inordinate length of time. Despite her United States citizenship, Diane Schrang was treated as if she were an illegal immigrant, who under American immigration procedure may be detained without a hearing for a maximum of two weeks in any one immigration holding centre in the United States. Initially, she was held at the federal detention centre in Olympia, Washington. A Washington lawyer initiated a habeas corpus application there, but on the twelfth day she was shipped out to another immigration holding centre in New Mexico. There, another attempt was made to free her, whereupon after two weeks she was shipped to another immigration holding centre in Oklahoma. Lawyers in Oklahoma went to bat for her, but again too late: after two weeks she was shipped to St. Louis, Missouri, where her husband was already in custody awaiting trial. Upon hearing her travail, the judge proposed that, should Diane decide to plead guilty, she would receive a sentence of "time served." The subtext was that this would allow her to be reunited with her children, whose welfare had been kept relatively in the dark during a month and a half of convoluted incarceration. Diane agreed to those terms. Naturally, her guilty plea had a major impact on her husband's options. Executive and Judicial Discretion in Extradition between Canada and the United States xvii These cases gave me a rough - and sometimes very rough - introduction to extradition law and related procedures in immigration law. Several elements of extradition became readily apparent, and appear linked in a chain of consequences: 1) the jeopardy of the person sought is heightened since he or she is regarded as a "fugitive" by the requesting country; 2) in general, Charter rights governing trial do not extend to extradition cases, and the legal protections of anyone exposed to extradition proceedings in Canada are limited; 3) extradition judges regard their judicial discretion in extradition hearings to be virtually non-existent; 4) the Minister of Justice is not predisposed to exercise discretion in favour of the fugitive once the extradition judge has ordered committal for surrender; and 5) the various courts of appeal and the Supreme Court of Canada are not generally disposed to interfere with a surrender decision of the Minister. For these reasons, it seemed necessary to approach extradition from a different perspective - that of academic legal research - to discover why apparent injustice and abuse of process seems so prevalent in extradition-related cases, and why the courts and the Minister seem so reluctant to apply even the discretionary remedies supplied them by the Treaty and the Extradition Act. Executive and Judicial Discretion in Extradition between Canada and the United States xviii ACKNOWLEDGEMENTS The years spent as a doctoral student at the University of British Columbia have been among the most rewarding and inspiring of my life. I especially wish to thank my supervisory committee, Professor Michael Jackson Q.C., Professor Peter Burns Q.C., and Dr. Wesley Pue, Associate Dean of Law for Graduate Studies and Research, who gave invaluable suggestions for abbreviating and enhancing the text. The external examiner, M . Cherif Bassiouni, is the unchallenged leader of international criminal law and American extradition practice. The university examiners, Dr. Lorraine Weir of the Department of English and Dr. Andrew Irvine of the Department of Philosophy, gave fresh perspectives and prescriptions, and the Faculty of Graduate Studies made my research possible with successive University Graduate Fellowships, a Social Sciences and Humanities Research Council (SSHRC) Fellowship, and two Walter and Cordula Paetzold Fellowships. As a visiting scholar at the University of Washington School of Law in Seattle from 2000-2002, I researched American case law, legislation and publications. Later, assisted by a SSHRC Federalism and Federations Supplement, I was able to travel extensively in the United States, visiting federal and state archives and the government offices of 25 states, including Alaska, and conducting research at the U.S. National Archives in Washington, D.C. and College Park, Maryland. I visited the offices of the Department of Justice in Ottawa and the United States Department of Justice in Washington, D.C. Where appropriate, archival materials and information from the various government offices have been incorporated into this text. Gary Botting, Ph.D. Paetzold Fellow, Faculty of Law University of British Columbia Executive and Judicial Discretion in Extradition between Canada and the United States 1 CHAPTER ONE INTRODUCTION 1. "Extradition" Defined This dissertation examines the levels of discretion accorded the judicial and executive branches of government in extradition between Canada and the United States through the history of extradition in North America, from the United States War of Independence to its current "War on Terror." It posits that Canada's new Extradition Act (S.C. 1999, c. 18) creates a startling imbalance between the roles of the executive and the judiciary in that it severely limits the judicial discretion traditionally enjoyed by extradition judges, and assigns to the Minister of Justice unparalleled executive discretion of a type that the Minister has in the past shown little inclination to use. The net effect of these changes is that extradition in Canada has been reduced from a traditionally judicial to an essentially administrative process. Extradition is the formal process by which one country demands of another the return or transfer of custody of an accused or convicted person to face justice.1 More narrowly, it is the actual surrender of such a person by one state to another on request. Although not defined in either the extradition provisions of the United States Code3 or the Canadian 1 L A . Shearer, Extradition in International Law (Manchester: University Press, 1971). 2 Re Schmidt and the Queen (1983), 4 C . C . C . (3d) 409, 147 D.L.R. (3d) 616, 41 O.R. (2d) 399, 4 C.R.R. 323 (Ont. H.C.J.), aff d 10 C.C.C. (3d) 564, 7 D.L.R. (4 th 95, 44 O.R. (2d) 777, 7 C.R.R. 144 (C.A.), aff d 33 C.C.C. (3d) 193, 39 D.L.R. (4th 18, [1987] 1 S.C.R. 500, 58 C.R. (3d) 1, 61 O.R. (2d) 530«, 76 N.R. 12, 28 C.R.R. 280, at (33 C.C.C. (3d)) 202-203 (S.C.C.). 3 18 U.S.C. § 3181 etseq. (1988), hereinafter "U.S. Extradition Code." Executive and Judicial Discretion in Extradition between Canada and the United States 2 Extradition Act, the general process had become well understood even before Thomas DeQuincey first coined the term from the French extradition ("delivering up") in 1839.4 The broad purpose of extradition is the repression of crime.5 Historically, extradition is a form of executive privilege designed to accommodate requests from one country to another to apprehend and deliver a person charged with or convicted of a crime. Bilateral treaties between countries often included extradition clauses. However, early attempts of the executive to turn over alleged fugitives from justice to foreign states for trial and punishment were not as straightforward as they seemed. For many decades after the American War of Independence, neither Britain nor the United States extradited fugitives, each arguing that unquestioning acceptance into its sovereign territory of fugitives from foreign jurisdictions was fundamental to its existence as an independent state. In fact, the extradition of Jonathan Robbins, also known as Thomas Nash, from the United States to Great Britain under the Jay Treaty met stiff opposition from the public and from Congress, and may have been responsible for unseating America's second president, John Adams. Through Secretary of State Timothy Pickering, Adams had directed a district judge in South Carolina to deliver up Robbins, an alleged mutineer, to Great Britain. Upon his surrender, Robbins, who claimed to have been an American who had been impressed into naval service by the British against his will, was taken by the British to Jamaica, where he was summarily tried, hanged and gibbeted - his dead body draped from a yard-arm as an "example" - much to the consternation of the American public. It was argued then, and continues to be the law, that the provisions of the various treaties could not be implemented in the absence of enabling legislation. From 1842 on, the 4 Oxford English Dictionary, s.v. "Extradition," citing DeQuincey, Casuistry, in Works, vol. VIII, p. 308. See Paul O'Higgins, "The History of Extradition in British Practice, 1174-1794," 13 Indian Y. B. Int'l Aff. 78, 108 (1964). 5 Preamble, Extradition Act. Executive and Judicial Discretion in Extradition between Canada and the United States 3 Ashburton-Webster Treaty was complemented by enabling statutes by the United States, Great Britain, and eventually Canada. It fell to the courts to interpret the provisions of the enabling legislation and the Treaty even though it was the domain of the executive to apply the law. The legislation set out the different roles of the judiciary and the executive, effectively codifying the law and practice of extradition courts and the executive as they developed. Extradition procedure has been governed by long-standing "rules" (more accurately assumptions, principles and maxims) which have survived in rudimentary form in treaties and legislation. These "rules" include: . The rule of a pre-existent treaty: A bilateral treaty or multilateral convention or agreement is usually a "condition precedent" to extradition. . The rule of executive prerogative: Extradition is ultimately an executive decision exercised in accordance with the law. . The rule of enabling legislation: Treaties are not enforceable without the existence of domestic legislation that authorizes the executive to act. . The "extraditable offence" rule: A crime alleged against an individual facing extradition must be listed or described in an agreement or treaty. . The rule of dual criminality: Crimes alleged against an individual facing extradition must be criminal in the laws of both nations. . The rule of non-inquiry: Where an extradition treaty exists, the fairness of the laws and judicial system of the requesting state is assumed. . The rule to extradite or prosecute.6 When an extradition request is made, the requested state may choose either to extradite or prosecute the accused. . The rule against double jeopardy: Extradition must not be granted where the accused has already been prosecuted or punished for the same offence. . The rule of specialty: Prosecution of an extradited person is restricted to the specific charges alleged in the extradition request. 6 M . Cherif Bassiouni and Edward M . Wise, Aut Dedere autJudicare: the Duty to Extradite or Prosecute in International Law (Norwell: Klewer Academic Publishers, 1995). Executive and Judicial Discretion in Extradition between Canada and the United States 4 . The "political offence" exemption: Persons are not to be extradited to face prosecution for crimes of a strictly political character.7 a) Extradition Agreements The countries involved in the extradition process, called "extradition partners" in the Canadian Act, but formerly (and usefully) known as the "requesting nation" and the "requested nation," must have concluded some sort of agreement or "arrangement" before extradition can take place. An extradition agreement or arrangement may be in the form of a bilateral treaty or a multilateral convention. Both Canada and the United States are signatories to some 20 international conventions that provide for extradition in some form.8 As of 2003, the United States is a signatory to about 104 bilateral extradition treaties,9 while Canada is a 7 Most of these rules are now incorporated in various forms in the current Canada-United States Extradition Treaty, although the effect of many of the rules has been muted by judicial precedent and executive practice, and in Canada by the 1999 Extradition Act. 8 Elaine F. Krivel, Thomas Beveridge and John W. Hayward, A Practical Guide to Canadian Extradition (Toronto: Carswell, 2002), pp. 3-4, list 17 "multilateral instruments" to which Canada is a signatory including the four Geneva Conventions of 1949 (Wounded and Sick, Maritime, Prisoners of War, and Civilians). M . Cherif Bassiouni, International Extradition: United States Law and Practice, 4 t h Edition (Dobbs Ferry, N Y : Oceana, 2002), Appendix 1 (pp. 913-924), lists "multilateral Conventions containing provisions on extradition" under 20 categories. Among instruments to which both countries are signatory are the Convention on the Prevention and Punishment of the Crime of Genocide, C.T.S. 1949/27; International Convention for the Suppression of the White Slave Trade, C.T.S. 1951/323; Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention, 1963), C.T.S. 1970/5; Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention, 1970), C.T.S. 1972/23; Single Convention on Narcotic Drugs, C.T.S. 1964/302 as amended by Protocol, C.T.S. 1976/48; U.N. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, C.T.S. 1977/43; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, C.T.S. 1987/36; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention, 1971), 1973/6 as amended by Protocol 24 February 1988; Convention on Psychotropic Substances, U.N.T.S. 1019/175 (in force for Canada 11 November 1990); U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 125 Canada Gazette Part I, No. 1 (5 January 1991) p. 60; Convention on the Physical Protection of Nuclear Material (Vienna Convention, 26 October 1979, entered into force 8 February 1987); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome Convention, 10 March 1988, entered into force 1 March 1992); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on Continental Shelf {adopted at Rome Convention, 10 March 1988, entered into force 1 March 1992); and the Inter-American Convention on Mutual Assistance in Criminal Matters (in force in Canada 2 July 1996). 9 Bassiouni, supra, note 8, Appendix II, pp. 925-929. Executive and Judicial Discretion in Extradition between Canada and the United States 5 signatory to about 70 1 0 including the one with the United States.11 In addition, the United 12 States is a signatory to two specific multilateral extradition treaties. b) Executive Prerogative Concluding, enforcing and honouring extradition treaties, agreements and arrangements is the prerogative of the Minister of Justice in Canada or the Secretary of State in the United States. Both Canada and the United States have created executive agencies for the administration of extradition matters, including legislative drafting: in Canada the "International Assistance Group" (LAG), a division of the Department of Justice,