British Columbia extradition lawyer Dr. Gary Botting has applied to the Supreme Court of Canada (SCC) for leave to appeal the extradition to the United States of his client on charges of conspiracy to traffic marijuana.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, is one of three lawyers who have applied for leave to appeal the extradition of three men. The men were arrested after the RCMP began monitoring a log-cutting operation in B.C., he explains.

“Half a dozen men skilled with chainsaws were hired to hollow out B.C. logs and load them onto a truck for transport to a log-house assembly plant in Ontario, California,” Botting tells AdvocateDaily. “The RCMP monitored the log-cutting operation from afar, and then once it was loaded, officers followed the truck to the U.S. border. From there, DEA agents kept on its tail all the way to the city of Ontario.”

There was no evidence that any of the three appellants knew the destination of the logs, he adds.

“However, the extradition judge found that since the log-cutters were allegedly present when the marijuana was inserted into the logs, they would have to be willfully blind not to realize that they were part of a conspiracy to traffic in marijuana,” he says. “By that logic, the appellants would have met the committal test for extradition to the United States, no matter where the logs were going.”

The men are seeking leave to appeal the recent decision of the B.C. Court of Appeal, which upheld both the committal and the minister’s order for surrender.

Botting and B.C. lawyers Peter Edelmann and Catherine Wong, are waiting for the SCC’s decision on whether the high court will grant them leave.

Before the Court of Appeal, Botting argued there is no real or substantial connection between the log-cutters and the United States. He says the log-cutters were not part of the primary conspiracy to traffic marijuana in the U.S., but were simply hired by one of the alleged primary conspirators to cut the logs.

“Naturally, the alleged conspirators would not tell mere functionaries every detail of what they were up to,” Botting says.

He argues the matter is “more suited to domestic prosecution, since the RCMP kept the Canadian log-cutters under observation in a Canadian town, watching them shape Canadian logs.”

Botting, the author of half a dozen books on extradition, including Canadian Extradition Law Practice — Fifth Edition (LexisNexis), says this case highlights how Canada has moved away from its long-standing principles of extradition that are founded on traditional international law.

“The U.S. has bullied Canada into almost universal compliance with extradition requests,” he says.

He points to what he describes as "Canada’s forsaking of the 'mirror' image of double criminality.

“The circumstances of the alleged conduct used to be considered along with the elements of the crime, but now the alleged crime is examined in a vacuum,” he says.

Canada is now permitted by its amended Criminal Code to prosecute persons alleged to be “conspiring” outside the country, Botting says.

“While Canada rarely pokes its nose into American business, why is Canada so eager to co-operate with the U.S. in having it prosecute Canadians whose activity takes place entirely within Canada?”

Botting points to the United States of America v. Cotroni, [1989] 1 SCR 1469, which he says “offered false hope that Canada could prosecute its own rather than extradite in cases where most of the alleged conduct took place in this country and the alleged offenders were Canadian.

“However, we’ve moved far, far away from that model,” Botting claims. “Now America says, ‘Jump!’ and Canada, looking around itself in bewilderment, asks ‘How high?'"