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Fighting extradition an uphill battle: Botting

published August 30, 2018

Canada’s Extradition Act is so stacked in favour of prosecutors in the requesting country that an accused person has little hope of resisting it — unless there has been excessive delay or they can prove that prosecutors have fudged their facts, says British Columbia criminal lawyer Gary Botting.

Furthermore, the discrepancy between how courts make their decision and what happens once the Department of Justice surrenders the person is unfair, says Botting, who has written six books on extradition and has practised in the area for 25 years.

“The minister of justice invariably sends the individual down for all of the charges for which he is sought,” says Botting, principal of Gary N.A. Botting, Barrister and Solicitor.

Generally, all that needs to be shown in the Canadian court is that the prosecution’s summary of evidence indicates the alleged crime would be an offence under the Criminal Code punishable by at least one year in jail in Canada.

“For example, the Record of the Case drafted by the foreign prosecutor might detail a 20-count indictment for serious offences such as bank fraud — but the Authority to Proceed drafted by Canadian officials alleges only 'fraud.' As long as common fraud is made out, the court has no choice but to commit the accused, and then the minister will typically send him down for all 20 counts of the more serious bank fraud charges.”

In another example, one of Botting’s clients faced numerous sex-related charges in Louisiana concerning his pre-teen daughter. His accuser was his estranged ex-wife, the girl’s stepmother.

At his extradition hearing, all the court had to decide was whether a prosecution summary had made out a case for a single count of sexual interference. The man said he’d been teaching his daughter about sex but was accused of grooming her for prostitution, among other charges, Botting says.

The Canadian judge decided the man’s lesson on how a condom works, in which he employed a banana, was age-inappropriate and constituted sexual interference, says Botting. His client was sent to Louisiana, where he was tried on multiple charges, convicted, and is now serving a 104-year prison term.

“This is typical of what happens,” Botting tells AdvocateDaily. “The minister under s. 58 of the Act sends the individual down to face the music for whatever has been requested — everything in the indictment.”

Botting has nevertheless been successful in stopping the train of extradition in several cases.

He describes one case in which he was able to show the prosecution had misrepresented key facts.

His client was a Canadian accused of firing shots at a police officer in Oklahoma. The client and his friend had been driving in separate cars when the friend’s car skidded on ice and smashed into a power pole. The friend abandoned his car and got into the passenger seat of the client’s car. A police officer who had seen the sparks gave chase.

Botting’s client, who was driving, slowed, then jumped out of the moving vehicle, leaving it to crash into another car. Moments later, his friend exited the car and fired a number of shots toward the officer, who hid behind his car door.

Botting says his client made it back to Canada, but his friend was arrested and “was savvy enough to claim that he was driving the car, which meant that my client would have been the shooter.”

It wasn’t until the appeal of his client’s extradition that Botting says he learned the police officer had given a statement that it was the dark-skinned man of the duo who had shot at him, not the light-skinned one — his client.

“The prosecutor had this evidence all along and did not disclose it — no disclosure is required in extradition hearings, just a record of the case which indicated my guy was the shooter,” Botting says.

He says the officer’s statement would not have come out at all in Canada if it hadn’t been for a U.S. lawyer engaged later by Botting’s client, who received full disclosure. “Successful appeals are few and far between, but this was one.”

In another case, Botting had a paralegal check out the status of witnesses in the U.S., where his client faced 10-year-old fraud charges. If those people were elderly they might no longer be alive or compos mentis, he says.

It turned out the complainant and four of the witnesses were either dead or unfit to testify. Prosecutors knew this but did not disclose it, he says. “They’re supposed to, but typically they don’t.”

Botting’s client had autism. He had done telemarketing in Canada for a U.S. lottery scheme that actually had no prizes. “They’d given him a script to read. It didn’t occur to him to think about what the employer was doing. He was just happy to have a job,” he says.

“The judge had the courage to say this does not fly and threw the case out,” Botting says. “It’s rare that you have a judge who will take that kind of stand.

“I’m concerned that in most extradition cases, the judges are unwilling to take the power unto themselves to say 'No' — even where committal for extradition will likely result in a miscarriage of justice.

“The Minister of Justice has sole discretion to extradite — or not to extradite."