By Gary Botting

Federal Green Party leader Elizabeth May has hopped on board a proposal for a commission of inquiry into the extradition case of an Ottawa professor under the Inquiries Act, reports the Ottawa Citizen. Such a commission would resemble commissions of inquiry into the wrongful convictions of Donald Marshall Jr. in Nova Scotia, Guy Paul Morin in Ontario, David Milgaard in Saskatchewan, and especially, the Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Commission.)

I wrote about these cases at some length in Wrongful Conviction in Canadian Law (LexisNexis, 2010). Those precedents were all provincial in scope. A commission of inquiry into the extradition of the Ottawa man, by contrast, would be federal. It would include a detailed examination of the actions of the federal Department of Justice to try to strengthen the case of France against the Ottawa professor, and the decision of the former minister of justice in ordering his surrender.

It had become clear France offered only tainted, speculative and pseudoscientific evidence against the man — evidence the extradition judge himself warned was weak, despite the fact that he had no choice but to commit for extradition, given the existing wording and interpretation of the Extradition Act.

Unlike the inquiries into wrongful conviction, this commission of inquiry will necessarily look into the entire extradition process, which unfairly places Canadians (and others) in an untenable position: once accused or merely even suspected of a crime, it is impossible for suspects to defend themselves.

For example, relying on the coerced statements of “cooperating witnesses” who are accused of conspiracy in serious crimes such as fraud or trafficking, the United States Department of Justice routinely adds the name of a fresh suspect to an existing indictment, even though that person may not have so much as set foot in the United States.

If that suspect is believed to be living in or travelling to Canada, the U.S. may request Canada to issue a provisional arrest warrant for the suspect. Without any additional evidence, the Canadian Border Services Agency (CBSA) authorities or the RCMP are duty-bound to arrest the suspect as soon as he enters, or is found in, Canada.

The current law states our suspect can be held for up to 60 days until the requesting country produces a summary of the evidence, plus an additional 30 days while Canada’s Department of Justice decides whether to initiate extradition proceedings. If the person is merely a tourist, the chances of making bail are remote.

Even a Canadian citizen will have trouble getting released unless he has access to substantial property and sureties. And it could be the person has absolutely no involvement in, or knowledge of, the conduct underlying the allegations, as in the case of the Ottawa professor.

There is no “downside” for the country making the request. If after 60 days the requesting country does not produce a “record of the case” (ROC), the person must be freed, without further consequences to the requesting state. Even where that country, conscious of the deadline, provides a slipshod ROC that does not provide a basis to justify extradition (the test being, “Could a jury, properly instructed, convict on the evidence?”), there are no further consequences to the requesting state.

One would think that, under such circumstances, the person would be discharged rather than committed for surrender, as provided for in the Act. However, this rarely happens, as was demonstrated in the professor's case.

Rather, the International Assistance Group (IAG), the specialists in extradition within the Department of Justice, has taken upon itself the role of advising the “extradition partner” how to beef up the ROC — even to the point of suggesting avenues of evidence that the requesting country had failed to explore.

Once the ROC is received by the Canadian authorities, the minister of justice issues an “authority to proceed” (ATP) — that is, permission to the attorney general to initiate an extradition proceeding in the superior court of the province where the individual has been detained.

Significantly, under the current law, the ROC is deemed to be “presumptively reliable." Furthermore, the accused is not generally allowed to tender evidence to rebut the ROC or to demonstrate their innocence. Explanations or alternative inferences that could be drawn from the evidence are deemed to be irrelevant and therefore inadmissible.

Despite being superior court justices, extradition judges have virtually no significant role to play. No matter how weak the evidence may be, the judge is bound to order a committal — as in the Ottawa case. Only rarely — perhaps a dozen times since the current Extradition Act became law — has a judge ordered a discharge.

This stance by the courts renders the committal hearing meaningless. It, therefore behooves the minister of justice to be more diligent than ever in exercising their personal discretion not to surrender for extradition.

In the Ottawa case, the Department of Justice was quick to point out it was the previous minister who made the surrender decision. That implies the current minister of justice will be more careful in ordering surrender for extradition than her predecessor.

Yet the rate of surrender has not gone down significantly, hovering around 90 per cent of extradition applications — higher for surrenders to the United States.

As the law stands, the courts all too often say, “That’s for the minister to decide,” and the minister retorts: “If the court decided to commit, surrender must be justified.”

It's a Catch-22.

Disturbingly, once surrender is ordered, the IAG routinely advises the recipient country not to provide bail to the accused person and to keep him in custody, since there is then nothing to stop the person from returning to Canada and starting the extradition process all over again.

That is specious reasoning, since bail orders can be crafted to allow the individual to return to Canada while awaiting trial.

Assuming the IAG followed its own policy and advised France to keep the Ottawa professor in jail for three years without a trial, that Canadian involvement in his protracted incarceration needs to be examined closely.

Legislation needs to be drafted to rein in the IAG, and to allow the RCMP to enforce foreign bail orders that arise in cases where an individual has already been extradited.

As for the courts of appeal, including the Supreme Court of Canada, they have placed altogether too much reliance on “comity”: the desire to please thy international neighbour, no matter what the cost to individual Canadian lives.

The entire Extradition Act needs to be revamped, so that extradition judges can begin to act judicially again, and so that the minister is provided with legislated guidelines as to when not to surrender.

It will take a commission of inquiry to sort it all out.