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Canada lags behind in protecting its citizens, Botting tells Oxford

published October 23, 2017

Canada lags far behind other free and democratic countries in protecting its citizens from extradition, British Columbia criminal lawyer Dr. Gary Botting tells a panel of experts at the University of Oxford in England.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, who has written half a dozen books on extradition and mutual legal assistance in criminal matters, was one of several speakers at the 2017 Oxford Conference on International Extradition and the European Arrest Warrant.

He chaired a session in which he said Canadian judges have routinely not allowed discovery, refused to hear any evidence from the person sought, and ordered committal for minor charges knowing the person would probably face far more serious charges once surrendered.

Stefano Maffei of the University of Padua in Italy, an organizer of the annual conference, says in a news release that Botting highlighted for participants the documents counsel is given when a person is arrested, showing “the enormous challenges faced by lawyers defending extradition cases in Canada these days, as the discovery of information is truly minimal.”

Botting says, “Elsewhere throughout the free world, discovery is a significant feature of the extradition process. In other countries, the practice is that the indictments are disclosed so the court and the person sought know what charges they are facing if turned over to the foreign jurisdiction.

“Not so in Canada, where the rule of speciality has been truncated.”

Botting says the “rule of speciality”, is a concept peculiar to extradition law that states if a person is extradited to another country for one offence, he cannot be prosecuted there for another.

“But Canada routinely commits a person for extradition for, say, simple fraud, and then surrenders them for more serious offences such as ‘wire fraud’ or ‘mail fraud,’ U.S. federal anti-racketeering offences that garner sentences of up to 20 years.

“It has become a bad habit. But unfortunately, the policy of burning Canadians on the pyre of ‘comity’ has been endorsed by every court of appeal in the country — including the Supreme Court of Canada (SCC).”

Whereas British courts have exerted their authority to slow extradition to a trickle, Canada’s highest court has pushed in the other direction, denying leave to appeal in the vast majority of extradition cases, Botting says. “This invites a more creative approach from the courts below."

For example, the SCC recently endorsed the minister’s surrender to India of a Canadian woman and her brother to face trial for conspiracy to commit murder in connection with the alleged honour killing of her daughter after she chose to marry a rickshaw driver, eschewing her arranged marriage to a wealthy businessman.

Following the SCC decision, the B.C. Court of Appeal allowed new applications on fresh evidence and the two individuals were kept in Canada rather than being handed over to Indian police, the Toronto Star reports.

“The chance of their getting a fair trial in India is next to zero,” Botting says. “Indian authorities readily admit to using 'truth serum' to extract confessions that are then used to implicate others in the crime.”

Botting says the most striking case of disparity in the extradition practice between Canada and the rest of the world is that of a Lebanese-born Canadian sociology professor from Ottawa, Hassan Diab, who was ordered extradited to France in 2014 to face terrorism charges dating back to 1980.

“On the basis of highly suspect handwriting evidence that France has since withdrawn, the man was accused of blowing up a synagogue in Paris,” he says.

“French authorities told Canada that, under the laws of France, they had enough evidence to prosecute him. In fact, they had no evidence, and have been scrambling ever since his surrender to cobble a case together.”

The presiding French court has ordered his release six times in two years on the basis that the evidence is insufficient to hold him, Botting says.

“And six times, the French Court of Appeal has ordered his reincarceration for political reasons, given the heightened tensions in France arising from recent terrorist attacks,” he says.