Criminal Law

Fight extradition orders until all appeals exhausted: Botting

By Peter Small, AdvocateDaily.com Contributor

It’s always wise to fight an extradition order because you never know what legal hornet’s nest you may be flying into in a foreign country, says British Columbia criminal lawyer Dr. Gary Botting.

"Resist extradition. Above all, don’t waive your extradition and agree to return," Botting, principal of Gary N.A. Botting, Barrister and Solicitor, tells AdvocateDaily.com.

Otherwise, you lose the protection of the rule of specialty, he says.

"The rule of specialty states that once a person is extradited, the foreign country cannot subsequently add fresh charges to the indictment," Botting says.

The extradition process does not stop with the extradition hearing, he says, adding that persons committed for extradition have a month to "make submissions to the minister of justice, and file an appeal."

If the minister orders surrender of the person for extradition, they would be well-advised to apply for judicial review of the surrender decision, Botting says.

"It’s a very unfair system," he says, adding that in the name of comity, or goodwill between nations, the Canadian government has sacrificed the rights of its citizens to the extradition process.

"Identical phrases appearing in the Extradition Act are often interpreted and applied in diametrically opposite ways to favour the requesting country over the individual," Botting says — especially in the use of "may" and "shall."

"May" is usually discretionary, while "shall" is mandatory, but not in extradition, he says, pointing to the extradition case of a Chinese business executive as an example of successive ministers of justice "twisting" the meanings to suit themselves.

Section 12 of the Act says the minister "may" authorize a request for a provisional warrant – not "shall" – and s. 15(1) says the minister "may" issue an authority to proceed. Botting notes.

But in both instances, the minister interpreted "may" to mean "shall" – which has led to the current conundrum, he says.

Botting says s. 14(1)(a) of the Act similarly gives the minister an out, but this time in mandatory terms where the accused is concerned: "A person who has been provisionally arrested … must be discharged (a) when the Minister notifies the court that an authority to proceed will not be issued," the Act states.

Section 23(3) of the Act is even less ambiguous, he says.

"The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person," according to the Act.

"In other words, the minister has complete statutory discretion to shut down the extradition proceeding at any point," says Botting. "In the Chinese executive's case, there are several billion reasons for doing so. It’s a matter of political will."

Botting, who has written half a dozen books on extradition and mutual legal assistance in criminal matters, says the law is stacked against Canadians targeted for extradition because the words "may" and "shall" are "twisted" around when applied to individuals.

"Section 44(1) says, ‘The Minister shall refuse to make a surrender order’ if satisfied that it would be unjust or oppressive, or violates human rights," he says.

"However, the minister can easily surmount this hurdle by virtually never being 'satisfied,'" says Botting.

Under s. 3 of the Extradition Act, and by way of treaty, a Canadian can be sent for prosecution in the United States for any crime carrying a sentence of a year or more.

"Almost all crimes in the Criminal Code are caught by it, plus many crimes that aren’t in the Criminal Code," he says.

In the United States, where the majority of Canadian extradition requests originate, prosecutors routinely use the process, Botting says.

An innocent Canadian can be easily ensnared in the system, he says because where extradition is concerned there is a presumption of guilt.

For example, perhaps you make friends with an American who invites you to stay for a week, which you accept. "A week later he discovers something is missing. Let’s say it’s a Bulova watch," Botting says.

The only person your "friend" can think might have taken the $2,000 watch is you, so he complains to police, who contact a prosecutor. "They pursue a completely credible extradition process. You are now alleged to have committed theft," he says.

Back in Canada, you have no idea about the allegation. "All of a sudden you get a warrant from the Department of Justice saying that you are being extradited to face trial for theft," Botting says.

The first instinct of many people is to contact police to protest their innocence, he says. That can be a mistake because even exculpatory statements can and will be used against you.

Alternatively, you get a lawyer and fight what are, essentially, bald allegations in an extradition hearing before a Canadian Superior Court judge, Botting says.

"This is when judicial fiction starts to play an even more major role," he says. "The Supreme Court has ruled that a presumption of reliability must be given to evidence filed by a foreign prosecutor.

"The presumption of reliability of a record of the case equates to a presumption of guilt," says Botting. "A prosecutor representing the United States or any other country seeking extradition in a Canadian court has far more power than a prosecutor in Canada," Botting says. "That's because a foreign prosecutor has the presumption of guilt on his side."

When faced with an extradition request, you have several options, he says:

  • You can waive your rights and agree to surrender. However, this leaves you vulnerable to further charges because you lose the protection of "the right to specialty," which bars an individual from being charged with any crime not specified in the surrender order.
  • You can opt for a "consent committal," in which you do not have an extradition hearing before a judge. Your case goes directly to the federal justice minister for review, which still protects your specialty rights.
  • You can "consent to surrender" under which you waive your right to a hearing and to make representations to the justice minister. But the minister still has to create a credible report as to why you’re being surrendered, and your specialty rights are preserved.
  • The fourth option, which Botting recommends and one that most people choose, is to fight in court until you have exhausted all appeals. On rare occasions, you can successfully challenge the evidence if it is obviously full of holes. Moreover, the case law on extradition is continuously evolving, which a skilled lawyer may be able to use to your advantage.

Simply surrendering to a foreign power is too risky, Botting says.

In the United States, for instance, you will face overwhelming pressure to plead guilty — as 90 per cent of Americans do — or risk draconian mandatory minimum sentences exceeding 100 years for drug or alleged sex offences, he says.

"You don’t know what kind of a hornet’s nest you’re flying into when you are extradited to the United States," Botting says.

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