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Botting seeks leave to appeal extradition case to the SCC

published January 20, 2017

British Columbia extradition lawyer Dr. Gary Botting is seeking leave to appeal to the Supreme Court of Canada (SCC) an extradition case in which he alleges abuse of process by the United States prosecutor and the FBI.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, initially appealed Mark Eldon Wilson’s committal for extradition to the British Columbia Court of Appeal in 2011. Wilson won a new hearing, after which he was again committed. His unsuccessful appeal and judicial review of the committal and surrender decision is the subject of his current leave application to the SCC.

According to the B.C. Court of Appeal decision in United States of America v. Wilson, the U.S. seeks to extradite Wilson to stand trial for allegedly participating in a large-scale telemarketing fraud targeting residents in that country. Madam Justice Dickson, then of the Supreme Court of British Columbia, committed Wilson for extradition on the Canadian offences of fraud and attempted fraud, after which then Minister of Justice Peter MacKay ordered his surrender.

Botting explains the case goes back to Wilson’s Surrey, B.C.-based company, which distributed packages of financial advice, credit card registration and 10-year credit card fraud protection to U.S. customers for $300 between 1998 and 2001.

Wilson’s legal problems started after some subscribers weren’t satisfied and complained they didn’t receive refunds in a timely manner, Botting says.

The failure to pay refunds in a timely manner became the central issue of the extradition proceedings in Canada, he says.

Botting alleges that the prosecutor mischaracterized from the outset the conduct underlying the alleged offences by stating that “the victims of the alleged fraud were elderly U.S. residents.”

He alleges the American prosecutor certified more than once that all 13 witnesses in the case were available, even though several were already dead.

“Unfortunately, a double standard has become the norm in extradition proceedings in Canada," he says. "Whatever the foreign prosecutor says is regarded by the courts as ‘presumptively reliable,' even though it’s hearsay or plainly wrong, whereas the individual’s evidence demonstrating that the record of the case is false must obey rigid Canadian rules of evidence to be admitted into evidence."

Wilson’s common-law wife, Carrie Hope, to whom he had earlier given a titular position in his company, was from the outset named as a co-accused, Botting explains.

“Threatened with the loss of their children should they both be extradited to the U.S., in 2010 she agreed to plead guilty in exchange for a sentence of one day plus probation, with a guarantee to return to Canada on the same day,” he says. “She did this; she testified, 'for the best interests of the children.'”

Botting says it was at her husband’s second committal hearing in 2014 that she attempted to recant the signed statement of facts drafted by the FBI.

“Since her death in 2015 from breast and spinal cancer, the U.S. prosecutors have made plain that they intend to use her guilty plea and recanted statement to ensure that a jury will find her husband guilty as charged,” he says. “That will effectively render their children orphans — exactly what Carrie feared would happen and sought to avoid.”

If leave to appeal is granted by the high court, Botting will argue that the use of the extradition system to induce a Canadian spouse to unwittingly entrap her husband in this way amounts to a misuse of the courts and the extradition process, and constitutes an abuse of process not too different from that encountered in United States of America v. Cobb [2001] 1 S.C.R. 587.

“The misuse of family ties in this way, using the children as pawns, is insidious in its conception, its realization, and its result,” he says, adding that it violates the fundamental principles of justice underlying “the community’s sense of fair play and decency” and thus “shocks the conscience of Canadians.”

Botting contends that Wilson cannot possibly obtain a fair trial in the United States, “given that his late wife years ago was induced by fears that her children would be left parentless to plead guilty to the same offences.

“The conduct of the certifying prosecutor in using such tactics is so egregious that it would be offensive to permit Mr. Wilson’s extradition to proceed,” he says.

“When coupled with a cavalier attitude in certifying the initial inaccurate Record of the Case (ROC) and successive inaccurate supplementary ROCs, without confirming that witnesses were available to testify, the Wilson case becomes one of those rare and exceptional cases where a stay of proceedings is warranted,” he says.