John Graham has fallen victim to Canada’s unfair and weak-kneed extradition laws, says an expert in the field.
Canada’s responsibility toward its citizens has plummeted to zero since a new Extradition Act was passed by Parliament in 1999, leaving scores of Canadians at the mercy of foreign courts and the possibility of politicized trials.
“Canada has totally dropped the ball on its obligations to its citizens, as opposed to its obligations to other countries,” said Gary Botting, an award-winning expert on extradition law with four tomes on the subject under his belt.
“It wants to curry favour with other countries,” he said. “It serves up its citizens on the altar.”
Graham’s case is particularly egregious, he said. The member of the Champagne/Aishihik First Nations was extradited to South Dakota in 2007 to face federal charges he murdered a co-member of the American Indian Movement in 1975.
Last month, a judge dropped the federal charges because the court could not establish jurisdiction over Graham because he is not a member of a recognized Indian tribe.
But then the state of South Dakota levelled its own murder charges, and Canada allowed the charges to proceed.
One of the greatest protections in extradition law is the rule of specialty, which stipulates that a person can only be tried for the charges they were extradited on.
“The biggest concern in the Graham case is this denial of the right to rely on the rule of specialty,” said Botting.
“Because always in extradition, it is assumed that when you send somebody back to prosecution, wherever it is, that he will not saddled with a whole bunch of extraneous charges when he gets there,” he said.
But that’s exactly what happened.
“That’s an abuse of process,” he said.
“It is completely shocking that they’ve abused the rule of specialty because it was the one thing we had as lawyers to hang our hats on when it came to arguing these things in court.
“But what’s the point of arguing these things in court at all if when we say they can be sent back for offences X and Y but not Z, and then they go and prosecute him for Z anyway.”
The abuse of the rule of specialty began with the case of Inderjit Singh Reyat, who served 10 years in a Canadian prison for the Air India bombing in 1985.
Reyat was extradited from England for his initial crime of manslaughter. But once he was in Canada, authorities wanted to slap on a whole bunch of other charges. England obliged.
“That was the beginning of the slippery slope of where we are now,” said Botting.
The federal government’s fend-for-yourself attitude towards citizens facing extradition in the last decade is morally wrong and a violation of international law, said Botting.
“It’s a question of Canada and this particular government in the thrall of the United States and it trying to curry favour with its largest trading partner.”
There was a time when extradition law was meant to protect citizens from the aggression of the state. But the standard for evidence in the Extradition Act is so low it’s laughable, said Botting.
“Triple hearsay evidence is fine,” he said. “And therefore there is nothing to stop Canada from sending anyone they want too.”
Canada’s hands-off attitude contrasts with other civil law countries that prefer doing court proceedings themselves. It’s heavily tilted toward the rights of the state over the rights of the individual - which are always at risk once the person in question has been sent out of the country.
“Canada has all but waived the legal rights of the individual,” said Botting.
“(The state) is completely and thoroughly armed, and the individual has no armour. There are no protections for the individual. It would be laughable to say that there were.”
Botting runs his own firm in Vancouver where he’s worked on countless extradition cases for the last 20 years. He is considered an expert and has literally written the book on extradition law in Canada. He was recently an expert witness during the protracted and controversial extradition of Karlheinz Schreiber.
“I’ve been banging on the door (for reform) for the last 10 years,” he said.
“Occasionally, the courts notice. The Supreme Court has said, ‘Thou shalt not rubber stamp extradition cases.’ But they made that standard so simple that ministers are till rubber stamping extradition cases and getting away with it.”
The architecture of the current extradition process was set up with the new act in 1999, which lowers the threshold for what a foreign country must present when it requests an extradition, said Botting.
“If there’s even a small chance that someone can be successfully prosecuted in the United States, under these circumstances they can be sent to the United States to be prosecuted,” he said.
Within the federal government, the act gutted any checks and balances on the extradition.
“The deck is totally stacked against the individual,” he said.
The minister of Foreign Affairs and International Trade has to sign off the extradition, but the minister is also the one making the request. A group of lawyers tweak and fine-tune the request to make it sound as sweet as possible, and there is no independent oversight of the process.
“It’s the tail-wagging-the-dog kind of situation,” said Botting, who can only think of three cases where the minister actually refused an extradition in the last three decades.
Canada’s anemic extradition process came in the spotlight after two members of the Khadr family, who are Canadian citizens, were arrested by US forces in Afghanistan.
The Supreme Court of Canada found that the government has violated Omar Khadr’s rights by refusing to allow him back to the country. And Abdul Khadr was released by American authorities after the prosecution fell through.
Both spent time in secret military camps, and Omar remains in Guantanamo Bay.
The big question here, aside from the relative youth of both Khadrs and the flimsy evidence against them, is, why doesn’t Canada prosecute them when it is also at war with the Taliban and al-Qaeda, whom the Khadrs are suspected of aiding? said Botting.
And now Canada has washed its hands of Graham.
There is nothing Ottawa can do legally to rectify the Graham situation now that it has approved the state charges against him.
“Once you’ve been sent to another country, you’re at their mercy,” said Botting.
But Ottawa’s treatment of its citizens should be brought to the International Court of Justice.
“The UN Human Rights committee said it was violation of international law,” said Botting.
“The fact that Canada has abandoned another citizen is completely wrong. It’s something that should be taken to the international court.”
Contact James Munson at
jamesm@yukon-news.com