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Case highlights limitations of Canada's extradition law

published April 19, 2018

A case involving two teens who are pleading to stop their mother’s extradition to England for allegedly abducting them underscores the limitations of the law surrounding extradition in Canada, British Columbia criminal lawyer Gary Botting tells CBC News. Vancouver Sun

"The judge said as long as there's any inference that can be drawn that infers guilt then she has to send them back. Her hands are tied," he tells the broadcaster.

"And that's the state of the law, unfortunately, in Canada right now. Anybody who faces extradition can be extradited on very, very slight evidence."

Botting, principal of Gary N. A. Botting, Barrister and Solicitor, notes that Canada's extradition law allows a judge to assess whether enough evidence exists to justify a trial, but not to weigh that evidence or make findings of fact.

Botting represents the mother of the boys — aged 14 and 16 — in a case where the B.C. Supreme Court ruled that she could be extradited back to England. She is charged in the United Kingdom with offences that in Canada would be the contravention of a custody order and abduction of a child under the age of 16, reports CBC.

The events that led to the extradition order date back to July 2014 when the woman and her husband of 14 years divorced, says the broadcaster. She applied for permanent custody but an English court denied her request. The court ordered the boys to live with her but noted that they couldn’t leave the U.K. for longer than a month without her ex-husband’s consent, says the article.

“In October 2015, the woman took the boys to Calgary without the ex-husband's knowledge. The next year, an Alberta Court granted his application for the boys' return through the Hague Convention. The boys travelled to Duncan, B.C., to live with their aunt. Their mother followed. And in 2016, their father came to Vancouver Island to try to enforce a court order for their return,” says the CBC.

The woman, who is both a Canadian and British citizen, claimed the boys’ father consented to them staying with her and he returned to England without them, says the article.

However, the father reported his ex-wife for child abduction upon his return to Liverpool, it says.

The woman has appealed the extradition ruling to the B.C. Court of Appeal and was granted bail, says the CBC.

Botting says his client plans to exhaust all legal options, including a last-ditch appeal to the justice minister.

He drew a parallel between her case and that of a Canadian university professor extradited in 2014 to France where he spent three years in prison before French authorities dropped terrorism charges against him due to a lack of evidence, reports the CBC.

Botting says the judge in the France case "said he had no option but to send him back because of the limited role of the extradition judge, and this judge said almost exactly the same thing here."

In addition, Botting says the boys in the B.C. case should be heard.

"The affidavits speak for themselves. They may want to add to them now, having seen what their mother's gone through up to this point. It's very traumatic for a family, especially for the mother,” he says.