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Canada's attitude toward extradition needs to change: Botting

published October 25, 2018

Canada needs to revamp its attitude toward extradition following a series of recent controversies, British Columbia criminal lawyer Gary Botting tells AdvocateDaily.

The CBC reports that the federal government has launched a review of the process that saw a Canadian man extradited to France on suspicion of involvement in a 1980 bombing on the basis of flimsy handwriting expert evidence.

A French court has since ordered his release after three years in custody, but Botting, principal of Gary N. A. Botting, Barrister and Solicitor, says the problems with Canada’s Extradition Act run much deeper than this case.

“The world is changing and it’s important to recognize the value of extradition in curbing international crime, such as drug smuggling, fraud and terrorism,” Botting says. “But we’re using extradition for much broader purposes, for charges that are sometimes absurd.

“Our whole attitude towards extradition needs to change,” he adds.

For example, Botting acts for a woman ordered extradited to the U.K. for allegedly abducting her two teenage sons, even though a custody order in England allowed her to remove them from the country for 30 days without notice to her ex-husband.

After the father began proceedings under the Hague Convention to have the 14- and 16-year-old boys returned home from Calgary, the mother was charged in the U.K.

Botting says in Canada, the offences would amount to breach of a custody order and abduction of a child under 16, but notes this nation's extradition law only allows a judge to assess whether ample evidence exists to justify a trial. It does not permit them to weigh that evidence or make findings of fact.

“Characterizing it as an abduction ignores all the nuances of the situation,” he says. “Ultimately, you have to wonder why they would want to extradite someone who has followed the letter of the law and done exactly what the court said she could.”

In another case of his, a former Vietnamese refugee, granted permanent residence in Canada, was painted as the ringleader of a marijuana grow-op in Germany, partly because of what Botting says was the faulty translation of intercepted phone conversations.

Part way through the trial in Germany, Botting’s client, who did not speak German, was told he was free to return to Canada, only to subsequently discover that he had been convicted and sentenced to nine years imprisonment when his co-defendants implicated him.

Two years later, the man was arrested in Vancouver under an extradition warrant, but Botting says he’s concerned that his client will not be allowed to rely on provisions in the Extradition Act concerning convictions in absentia because he attended part of his trial.

“It overlooks the fact that he was told to leave and had his passport handed to him without context,” Botting says.

“Right now, our whole attitude to extradition adheres more to ideas of international comity than to individual rights,” he adds. “Individual Canadians have rights that are as important as international co-operation. We need a much more rigorous test of whether extradition is warranted in cases like these.”