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Cruelty of extradition exposed by telemarketer's case: Botting

published November 22, 2018

The case of a Canadian telemarketer jailed in California exposes the "cruel misuse of family ties" in the extradition process of his client, British Columbia extradition lawyer Dr. Gary Botting tells AdvocateDaily.

Botting’s client was finally sentenced to 10 years in a U.S. prison after exhausting all routes of appeal. He had spent most of the last two decades fighting extradition following troubles that began in 2000 when the FBI filed a criminal complaint, declaring his wildly successful financial planning and credit card protection business fraudulent.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, won his client a fresh extradition hearing in 2011 after B.C.’s Court of Appeal agreed that the judge who originally ordered his committal made serious errors. But, by the time the new hearing arrived, the U.S. prosecutors had changed tack in their relentless pursuit of the man by putting the squeeze on his wife in order to get to him.

Evidence the wife gave in California was critical to his second committal, even though she recanted it at his extradition hearing. This time the committal was upheld by the appeal court. The Supreme Court of Canada refused leave to appeal, and the extradition was carried out.

“The techniques they used are a very cruel misuse of family ties,” Botting says. “He’s been struggling with this proceeding for a long time, and now he’s got 10 more years before he can hope to get out.”

In addition to the use of his wife to get to him, Botting says the odds were unfairly stacked against his client due to deficiencies in the extradition process.

“The presumption of guilt weighs far more heavily than the reliability of evidence,” he says, noting that much of the evidence against his client was based on the testimony of witnesses who had already died.

“There’s no disclosure in these extradition cases,” he explains. “You have to find out by your own rigorous searches using private eyes and paralegals. In this case, we found out at least half of the witnesses listed by the U.S. prosecutors were dead.”

According to Botting, his client’s Surrey, B.C.-based company began in 1998 to distribute packages of financial advice and credit card fraud protection to customers in Canada, the U.S. and around the world for about $300.

A small percentage of the client's customers triggered his initial legal troubles when their complaints about slow responses to refund requests alerted the FBI to the company.

Botting has frequently criticized the U.S. prosecutor’s pursuit of his client as inappropriate and lacking objectivity, alleging she misrepresented his product from the beginning by framing his business as one that targeted elderly U.S. residents.

He was hired after the man’s initial committal and won him a fresh hearing after a successful appeal in 2011. However, the case took a turn when prosecutors targeted the man’s common-law wife and mother of his three children. She held a titular role in the company and was named as a co-accused in the U.S. proceedings.

Botting says she agreed out of fear to accept a plea deal that would see her serving virtually no jail time.

“The deal was that she would plead guilty in exchange for a one-day sentence, plus probation, as well as a guarantee she would be returned to Canada on the same day,” he says. “Otherwise, the threat was that they would lose their children if they were extradited together."

At the man’s second committal hearing in 2014, his common-law wife recanted her evidence, before dying of cancer a year later. Botting says her tragic death, and his client’s extradition ensured her worst fear had come true — that their children would become orphans. They currently reside with her parents in B.C.

Botting says it’s not the first time he has seen U.S. prosecutors succeed in using the Canadian extradition process to induce a spouse to entrap their partner.

In the 1980s, he acted for a man whose wife was moved from immigration detention in Canada into the custody of U.S. authorities. There, she agreed to a plea deal that would see her sentenced to time served.

“But her plea changed the complexion of the charges against her husband, and there was no way a jury would ever side with him after that,” Botting says. "It's an abuse of process."