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Overhaul of Canada's extradition procedures is long overdue

published November 23, 2021

Canada’s laws on extradition are in need of reform.

That is the understatement of the year emanating from the Halifax Colloquium of Extradition Law Reform last month. The report, authored by Dalhousie University law professor Robert J. Currie, is an important contribution to the growing literature demanding changes from top to bottom in Canada’s bureaucratic approach to extradition.

The Colloquium report pinpoints the absurdity of the presuppositions and built-in prejudices of the court system when the “blindness” of justice works against fairness rather than being its arbiter. The extradition committal process, participants unanimously decided, is “inherently unfair.”

This is especially disconcerting if you stand to be extradited to a country where the concept of justice is increasingly unlike our own, such as the United States, or France.

In the U.S., alleged offenders face ridiculously high sentences compared to our own sentencing regime. Two of my clients who insisted on pleading not guilty because they believed they had done nothing criminally wrong each received sentences in excess of 100 years.

One was charged with grooming his home-educated daughter to perform sexual favours. The crowning evidence in his extradition hearing was his admission that, following the health curriculum for her grade level, he had shown her how to place a condom on a banana. That was enough “evidence” for the conservative Canadian judge to be satisfied that he should face trial in Louisiana.

There, the deck was stacked against him: his ex-wife, the complainant, worked in the sheriff’s office. Not only that, but a single psychologist had a monopoly for psychological services in great swaths of the state. His prejudicial report was not admitted as evidence in the court here – but was admitted once my client was surrendered for extradition.

Another client received a similar sentence in Arizona – cumulatively in excess of 100 years – when he discovered that his teenaged quadriplegic stepson could relieve the cramps in his useless limbs upon achieving sexual release. He admitted to helping his stepson in this endeavour on three occasions. That admission was enough to guarantee his extradition to stand trial – without a thought on the part of the judge or the minister of justice as to whether the receiving state would factor in his motivation of misplaced compassion rather than sexual assault.

In the United States, obligatory sentences measured in decades are common. Accused persons are therefore encouraged to plead guilty with the carrot of a low sentence – as low as one day – provided they plead guilty. This makes the prosecutors’ statistics look impressive. But there is always a catch: the accused must sign a document drafted by the prosecutor or, typically, the FBI, implicating someone else in the chain of command.

In two of my cases, the person implicated was the co-accused husband, and there were children involved. The argument used to obtain the guilty plea? Mom can plead out and be on a plane to be with her kids the next day.

What mother otherwise facing a sentence of 10 years or more would say “No” to that extortionary ploy?

In such cases of “divide and conquer,” the husband, upon extradition, pleads not guilty and typically receives a compounded sentence in excess of 10 years. So Mom is on her own – if she lives that long. In one of my cases involving alleged fraud, the mother was diagnosed with cancer not long after she entered her guilty plea and returned home. She died four years ago. My client is still in a Georgia prison. His pleas to be transferred to Canada by treaty agreement have fallen on deaf ears – as have other cases where U.S. sentences are in excess of 10 years.

In the words of the Colloquium report, the International Assistance Group (IAG) of the Department of Justice “is excessively adversarial.” Again, an understatement. The IAG has become notorious for its blatant assistance of foreign prosecutors to “get it right” in terms of drafting the record of the case that will be used to secure extradition from Canada.

Of even greater immediate concern, in my experience, the director has made it her business to interfere with the bail system in the United States by stating categorically that if persons surrendered by Canada are granted bail, as had happened with one of my clients, the U.S. would have to apply for extradition of that individual all over again.

This is simply not true. My client, H.R., reported to the RCMP on a monthly basis, and was available to talk to his bail supervisor and U.S. marshals whenever necessary. He dutifully reported to court in Seattle when required.

Despite this successful precedent, in subsequent cases the director wrote letters on official IAG stationery urging U.S. authorities not to release my clients as they awaited trial. The United States complied, adding years to the time spent in jail of persons presumed to be innocent.

This is a similar situation to the case of Hassan Diab, who was surrendered to France in a series of shameful decisions by the extradition judge, the Minister of Justice, the Ontario Court of Appeal and ultimately the Supreme Court of Canada (which seemingly by rote refuses to give leave to appeal in extradition matters where court of appeal decisions are unanimous).

Three years later, Mr. Diab was released without any charge having been laid against him. Yet the very first Article of the France-Canada Treaty specifies that extradition is reserved for persons charged with an offence. The fact is, none of Canada’s extradition treaties with 51 countries has been ratified by Parliament. All of them need to be reviewed, revised and officially ratified, with the principles of human and legal rights in mind.

The Halifax colloquium called for rebalancing of the roles of the croupiers in this seriously stilted game to conform with Charter protections. It can no longer be presumed that the requesting state acts in good faith. In particular, the “presumption of reliability” of the record of the case, gleaned from a misreading of the majority opinion in the 2006 Supreme Court of Canada decision in United States of America v. Ferras, needs to be excised from judges’ minds as the judicial fiction it so obviously is.

A good start, as recommended by the Colloquium, would be parliamentary oversight and review of all extradition procedures, including exposure to public scrutiny of the activities and proclivities of the IAG.