Extradition a ‘stacked deck’ resulting in anguish, even suicide

By Paul Russell, LegalMatters Staff • As the extradition hearing against Huawei executive Meng Wanzhou drags on, B.C. criminal lawyer Gary Botting knows all too well what she is facing.

“The extradition process is a stacked deck. I’ve been saying that for more than three decades, but getting nowhere,” says Botting, principal of Gary N.A. Botting, Barrister.

He says he first formally declared his belief in the unfairness of the system in a master’s thesis in 1999, later published in Germany as Extradition: Individual Rights vs. International Obligations, arguing that the Department of Justice is given such broad discretion that individual rights are rendered meaningless.

After the Extradition Act was ratified that year, Botting warned about its ambiguity and one-sidedness in several papers presented at law schools and forums across the country before publishing his PhD dissertation as Extradition Between Canada and the United States.

People do anything to avoid extradition

Botting knows all too well the emotional toll of the hearings, recalling the case of a client who was facing an extradition request from Poland.

“Canada doesn’t even have a treaty with Poland, so they relied on a multilateral treaty, alleging that my client had been involved in cross-border crime,” he says.

Botting explains the man had visited Poland as an investor and an expert to assess the possibility of fracking old coal mines to get more gas out of them. On that trip, he encountered an old school friend who, unknown to him, was under surveillance, suspected of being a member of a criminal organization.

“The allegation my client was criminally involved with the other man in transnational crime was completely off the wall,” he says. “The only transnational element alleged was that my client happened to be Canadian. The B.C. Court of Appeal bought that argument.

“My client believed that he would not get a fair trial in Poland. We applied for leave to appeal to the Supreme Court of Canada (SCC), which, as is usual in extradition cases, refused leave to appeal.

“When it became clear that Canada was going to allow the extradition, my client boarded a train to Ontario, and on the way there, hanged himself, Botting explains.

Mother of three left with no choices

Perhaps the best-known example of the stress of extradition is MM v United States of America. It involved a dual Canadian-U.S. citizen who fled an abusive husband in Georgia with her children in 2010. After she was arrested at a women’s shelter in Quebec, the SCC upheld her surrender despite clear evidence that had her conduct occurred in Canada, she could have availed herself of the defence of necessity.

Botting spoke to her during her legal actions, as he had a client in a similar situation.

“She told me that she was definitely not going back to Georgia,” he says. “If she was forced to return, she told me her life would be in danger, as well as the lives of her children.”

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Botting says he urged her not to do anything desperate, quoting the SCC’s judgment in the case of United States v. Burns: “Where there is life, there is hope.”

The justice minister at the time reconsidered the case then confirmed the surrender order, with the SCC denying leave to appeal. With no options left, the mother of three committed suicide in prison.

“This case was the low point of our extradition system,” says Botting. “A vulnerable Canadian woman and her children needed protection from a U.S. state with a reputation for injustice. Yet the Minister of Justice and our highest court refused to protect her from what would plainly be biased if not malicious prosecution in the State of Georgia.”

‘The judge becomes a rubber stamp’

In 2006 the SCC heard United States of America v. Ferras, in which a man was fighting against extradition to the U.S. for allegedly trafficking cocaine. The American prosecutor used the “record of the case” method during the extradition proceedings, certifying that the evidence against the man was sufficient to justify trial. The accused argued that he was being prosecuted on inherently unreliable evidence and that this would violate his Charter s. 7 rights.

Writing for the court, Chief Justice Beverley McLachlin notes that people are sometimes committed for extradition “notwithstanding the judge’s conclusion that it is dangerous or unreasonable to commit on the evidence adduced.” She then cites Botting’s 2005 book, Extradition Between Canada and the United States, noting that when that happens, “The judge becomes a rubber stamp. As we have seen, this violates the principles of fundamental justice applicable to extradition hearings and hence violates s. 7 of the Charter. For a person sought to receive a fair extradition hearing, the extradition judge must be able to evaluate the evidence, including its reliability, to determine whether the evidence establishes a sufficient case to commit.”

Later in the judgment, she says: “It follows that the extradition judge must judicially consider the facts and the law and be satisfied that they justify committal before ordering extradition. The judge must act as a judge, not a rubber stamp.”

Danger of ‘presumptively reliable’ evidence

But with regard to Ferras, McLachlin states the “records submitted by the U.S. against the accused contained sufficient admissible evidence that a reasonable jury, properly instructed, could convict had the conduct occurred in Canada … [making] the records presumptively reliable.” The Court supported the minister’s decision to honour the U.S. extradition request.

“‘Presumptively reliable’ became a catchphrase in extradition hearings for several years, and that is what caught Hassan Diab,” says Botting.

In 2011, the Superior Court of Justice heard the case of a Canadian university lecturer who was wanted in France to face charges after four people were killed and 40 others injured after a bomb went off near a synagogue in Paris three years earlier.

“That extradition was approved, since the evidence was considered to be presumptively reliable, even though it was demonstrably unreliable,” says Botting. “Even a French witness said the fingerprint evidence was unreliable.”

‘Abuse of process at its worst’

Prosecutors claimed they could show Diab was staying at a Paris hotel on the dates around the blast. Their theory was that someone named “Hassan Diab,” writing in block letters, used a pseudonym when he registered at the hotel.

“Hassan and Diab are both very common Lebanese names, so it is like alleging that someone named ‘John Smith’ filled out a hotel registry card in block letters using the pseudonym ‘Tom Jones.’ How is that evidence meaningful?” asks Botting.

He added that prosecutors claimed the writing in the hotel registry matched Diab’s, but it was later shown they were comparing it to a note his wife had written, and not Diab himself.

“Despite these flaws in evidence, Mr. Diab was sent to France, where he spent three years in a French jail, without any plans for a trial, for a crime he did not commit,” says Botting. “This is abuse of process at its worst.”

The French judge who released Diab ruled he had a solid alibi for the day of the Paris bombing, as university records indicated he was “probably in Lebanon” writing exams when the synagogue bombing took place.

Others are urging change

Botting is not the only one calling for change to extradition procedure. In a recent scholarly article, a professor from the Schulich School of Law says reform is needed to ensure that extradition proceedings meet Canadian standards of justice.

“The ‘committal stage’ of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter,” Robert Currie states in the opening abstract. “The manner in which the Crown conducts these proceedings contributes to this unfairness.”

He reviewed 198 post-Ferras committal decisions between 2006 and 2017 and found only 16 successful challenges, describing the evidence presented in many cases as “defective or unreliable,” or even non-existent.

“In light of Diab and other disturbing cases, the time is ripe for law reform to ensure that extradition proceedings are carried out in a way that is consistent with Canadian public policy,” he writes.