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Extradition order reversed, Botting’s client discharged

published October 21, 2019

Securing the Canadian woman’s discharge, “a rare occurrence,” required persistence, says Botting, principal of Gary N.A. Botting, Barrister and Solicitor.

“It’s just hammering away at how unfair it was,” he says. “It’s a question of patience and making sure that you’ve followed every step.”

The woman was married to an English citizen and living in the U.K., but the couple divorced.

An English court awarded her custody of their two teenaged sons, granting the father access.

Under terms of the order, the mother could leave the country with the boys for up to 30 days without informing the father, which she did in October 2015 when she moved to Calgary, says Botting, who has acted in many extradition cases.

She intended to return the boys to the father within the allowed 30 days, he tells AdvocateDaily.

However, the father discovered their departure, and taking advice from a policeman friend, tried to enforce the order in the local court, which told him that since the boys were in Canada, the father should apply to the appropriate Canadian court, Botting says.

“That application to the Alberta Court of Queen’s Bench was brought before the 30-day timeline had expired. However, that court ordered that the children remain in Alberta until it had heard the case. This meant that my client could not return the boys to the U.K. before the expiration date allowed by the original order.”

After the 30 days had expired, the Alberta Court of Queen’s Bench directed the mother to return the children to their father in England.

“But by then, the boys didn’t want to go home,” says Botting. Instead, they fled to Vancouver Island to live with their aunt.

In the meantime, the mother brought the matter to the attention of the Alberta Court of Appeal. A chambers judge of that court then ordered her to keep the boys in Calgary pending its decision. This again put her in a conflict-of-laws position, he says — especially since the boys were no longer in Alberta.

The mother later joined the boys and obtained employment on Vancouver Island — only to find that the U.K. had requested her extradition for two counts of “abduction.”

“It was a catch-22. She was put in breach of the English order by virtue of her compliance with the Canadian order. The conflict of laws couldn’t be more clear,” Botting says.

Encouraged by the knowledge that the mother now faced extradition proceedings, the father obtained an order from the B.C. Supreme Court enforcing the Alberta Hague Convention order, Botting says.

Acting on the B.C. order, the RCMP apprehended the boys outside their aunt’s home as the father looked on from a police cruiser. During a dramatic scene, the youngest boy escaped into nearby woods.

The following day, outside a restaurant, the RCMP detained the boys long enough so that their father could talk to them. He agreed that they were old enough to make up their own minds. He consented to their continuing to live in Canada and returned to England, Botting says. However, despite his consent, the U.K. court did not drop the charges, and the extradition proceedings continued, year after year.

In October 2018, then justice minister, Jody Wilson-Raybould, ordered the mother committed for extradition, using a 2015 Supreme Court of Canada (SCC) ruling as justification, Botting says.

In that decision, the SCC upheld a U.S. extradition request against a Quebec woman for allegedly violating a custody order for her three children. She claimed the children had left their father, without her prompting, to escape his abuse.

Botting applied to the justice minister to reconsider his client’s extradition, submitting new information about the boys’ wishes to remain in Canada, the father’s consent, and the fact she was jobless and highly stressed as a result of the legal battle.

In his submissions, Botting emphasized her legal double-bind.

“Even if she was technically running afoul of the law in the United Kingdom, she had no choice,” he says. “And this is how we finally managed to resolve things — by showing how ridiculous it was that she found herself placed in such an impossible situation.”

In response, new Justice Minister David Lametti, upon reviewing hundreds of pages of submissions, including legal documents from the U.K. and Alberta, reversed the committal order.

Around the same time, a British court dropped the charges. Botting thinks the decision may have been influenced by him working his English legal contacts, as well as Canadian Justice Department communications with U.K. officials and representations by the mother’s British lawyer.

He advises lawyers in a similar situation to try to resolve matters in the country seeking extradition.

“Get in touch with the lawyers in the requesting country to make sure that they know what the implications are and the ramifications of extradition, and ask if this can somehow be negotiated at home.”