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US extradition treaty never ratified by Parliament: lawyer

John Graham should never have been extradited to the United States on murder charges, says an expert in the field.

John Graham should never have been extradited to the United States on murder charges, says an expert in the field.

Canada’s current extradition regime was never ratified by Parliament, says Gary Botting, a Vancouver-based lawyer and legal scholar who wants the law changed.

That lack of ratification makes the extradition of hundreds of Canadians to the US, including Graham, a member of the Champagne-Aishihik First Nation, illegitimate, he said.

“You have to face the music down there and Canada will simply feed you to the dogs,” he said in an interview last week.

Following an extensive study of extradition documents between the two countries, Botting discovered a troubling lapse in the legislative process.

“Who ratified (the Canada-US extradition treaty)?” he asked. “It certainly wasn’t cabinet, it wasn’t the governor in council, it wasn’t Parliament and it wasn’t the Senate.”

“The parliamentary system requires Parliament to make the decisions, so the treaty isn’t valid on its face. There’s no way people should be being extradited - losing their livelihood and sometimes their lives.”

Extradition is made up of two documents, a law and a treaty. The law sets the rules in Canada and the treaty establishes the relationship with the United States.

Extradition law began in 1785 in the Jay Treaty, an agreement between the United Kingdom (which included Canada) and the US. Only murder and forgery were grounds for extradition at that time.

Over the centuries, that process remained largely unchanged except for minor tweaks. Central to the process was protection of the individual, which guaranteed a hearing in the country of origin to examine evidence - a kind of mini-trial to ensure the person wasn’t being sent off on flimsy grounds.

The last major change to the treaty happened in 1971, in an agreement with the US. But it may never have been ratified by Parliament, even if Ottawa considers it law.

Over the last few months, Botting has been in talks with Justice Minister Rob Nicholson and Foreign Affairs over another Canadian facing extradition.

“(The Minister) can’t produce the instrument of ratification,” he said.

The saga began in 1971 when Mitchell Sharp, then secretary of state for external affairs, got a cabinet order allowing him to sign a new extradition treaty with the US, subject to ratification.

Meanwhile, the US Congress haggled over the contents of the treaty, focusing on the handling of political prisoners.

The US eventually ratified the treaty in 1976, according to Botting’s research. But there’s no evidence in the National Archives the treaty was reviewed by Parliament, said Botting.

The failure to ratify the treaty raises questions about the legitimacy of extradition law in Canada.

Allan MacEachen, another minister in Pierre Trudeau’s cabinet, ratified the treaty as the new secretary of state for external affairs in 1976.

“He simply signs it and then tells his people that it’s law,” said Botting. “And so it’s published in the Gazette as being law.”

If Sharp was initially forced to seek ratification - supposedly from Parliament - as the secretary of state, then MacEachen should have been under the same constraint too, said Botting.

Botting searched through all the orders in council and parliamentary records from that time and couldn’t find the proof of ratification. One note mentions the treaty being tabled in Parliament, but that was after it was signed by MacEachen.

Fast-forward to Botting’s current case, and Nicholson can’t provide the instrument of ratification.

In correspondence with Nicholson and his staff, all Botting received was a document from MacEachen stating the treaty is ratified. But there’s no proof it came before Parliament.

“At the time, very few people are being extradited so it has no consequences,” said Botting. “But all of a sudden, when 100 people are being extradited every year, it’s a huge consequence.”

On top of that, Foreign Affairs’ lawyers told Botting they didn’t have a copy of the instrument of ratification. They told Botting it was sent to the US.

“Why on earth would you give a document that important to the US?” he said. “Why couldn’t you keep a copy for yourself?”

The problem in Graham’s extradition - and all extradited Canadians - goes even further.

Most people would expect to go through some kind of mini-trial in Canada before being sent to the US. But that process, which came into place with the Jay Treaty, was replaced in 1999 when a new extradition law came into force.

In the 1999 law, all a Canadian judge needs to send a citizen to the US is a record of the case sworn by an American prosecutor or judicial authority. In other words, an agent of the law or a district attorney.

In a recent extradition case, a Canadian judge wouldn’t let Botting defend his client because a sworn record had already been tabled.

“There’s no opportunity for rebuttal,” he said. “It’s all rubber stamping.”

The Supreme Court clamped down on the problem a few years ago, but provincial appeal courts have worked around that decision and the rubber stamping of extradition requests remains largely in place.

Botting can only think of one case in the last decade where a Canadian was not sent to the US.

Despite a recent revelation, the US State Department knew it didn’t have jurisdiction over Graham when it requested and was granted his extradition, Graham remains jailed in a South Dakota prison facing murder charges dating back 35 years.

Botting, who has criticized the extradition law with a number of other lawyers over the last several years, remains dogged in his drive to change extradition in Canada.

“It’s a threat to the individual,” he said. “(The government) can get away with anything.”

Contact James Munson at