Vol. 16 No. 6 (June, 2006) pp.445-449
EXTRADITION BETWEEN CANADA AND THE UNITED STATES, by Gary Botting. Ardsley, N.Y.: Transnational Publishers, Inc., 2005. 450pp. Hardback. $125.00. ISBN: 1571053352.
Reviewed by Daniel C. Turack, Capital University Law School. Email: DTurack [at] law.capital.edu
Extradition is a process, usually taking place as a result of an international agreement, whereby each of the signatories agrees to surrender an individual accused or convicted of an offence outside of its own territory, to the legal authorities of the other signatory requesting that individual’s surrender. This book, by Gary Botting, looks at the past and current extradition processes between the two North American English-speaking countries that share a common border stretching beyond 5,500 miles, and whose legal systems derive from the English Common Law.
It will be recalled that in 1874, Edward Clarke, the leading British authority of his day on extradition, said “In the matter of extradition, the American law was better than that of any country in the world” (p.1). Today, American law is guided by the Patriot Act after the horrific events of September 11, 2001, which allows secret proceedings, secret warrants of arrest, extraordinary rendition, and the expansion of executive power at the expense of legislative and judicial processes. As the world has become less safe, it is not surprising that terrorism’s threat has also influenced extradition.
Extradition involves the interaction of the judicial and diplomatic processes in both countries. As the author points out, “[n]ot once in 200 years has Canada exercised the right to prosecute a requested person rather than extradite him – even where the conduct took place entirely within Canada and the Canadian accused never once left his homeland. Not once since the 19th century has the Canadian Minister of Justice disallowed an extradition on the grounds that it was politically motivated or that the conduct constituted an offence of a political character – both traditional bars to extradition” (pp.xx-xxi). As the events of 9/11 have reshaped American foreign policy, Botting asks whether Canada’s “blanket approval of extradition to the United States is an appropriate or just remedy for Canadian citizens caught in the extradition machinery . . . [or] can Canada develop a policy with its constituent provinces and territories of prosecuting such individuals at home rather than subjecting them to the unknown vicissitudes of treatment of foreigners, as reflected most poignantly in the long saga of Guantanamo Bay?” (p.xxi).
In the introductory chapter, Botting recounts the traditional theories and principles of extradition that include the treaty, role of the executive prerogative, enabling legislation, extraditable offenses, the requirement of dual criminality, the rule of non-inquiry, the choice of whether to extradite or prosecute, the rule against double [*446] jeopardy, the speciality doctrine, and the political offense exception. The introduction also contains the author’s sentiments on Justice Gérard Vincent La Forest’s work and influence on extradition, beginning with his book on EXTRADITION TO AND FROM CANADA (1960), carried forward through the third edition by Anne Warner La Forest (1991), and during Justice La Forest’s time on the Supreme Court of Canada in dealing with extradition cases. Furthermore, Botting elucidates that “[t]he policy of giving treaty considerations priority over constitutional considerations, spearheaded by La Forest, J. and followed sedulously in the lower courts, ignores the fact that in Canada, the Charter [Canadian Charter of Rights and Freedoms] is a significant part of the supreme law of the land whereas extradition treaties are not” (p.25).
On the American side, Botting singles out Judge Henry Friendly of the Second Circuit Court of Appeals, whose judgments on extradition law between 1973 to 1986, “despite their being based upon ‘misreadings of extradition history and the resulting confusions of extradition practice’ have been followed by district and circuit courts across the country” (p.27). This initial chapter ends with a road map to guide the reader on what is to follow.
In the second chapter, the reader is taken on an historical excursion of the reasons for the absence of cooperation on apprehension and the return of fugitives in British North America before American independence. Discussion of the prelude to the negotiations and application of the Jay Treaty of 1795 is very interesting reading, as are the events concerning the War of 1812, and for those guilty of treason, thus, “planting the seeds of the notion of more lenient treatment for offenses motivated by political commitment” (p.49).
From the time of ratification of the Treaty of Ghent (1814) until the conclusion of the Webster-Ashburton Treaty (1842), the author relates how each country handled extradition matters in the absence of a treaty, and how particular “guiding spirits” prevailed in their endeavors either in support or opposition to such matters. Prominent in these pages is the failed Rebellion of 1837 in Upper Canada, the attempted extradition of William Lyon Mackenzie, the foiled Rebellion leader who escaped to the State of New York, and whose Governor regarded Mackenzie’s acts as “political.” There is a short discussion of “The Fugitive Offenders Act” (1833), of Upper Canada, and a thumbnail sketch of cases that arose from both sides of the border during this period.
Chapter Three is devoted to The Webster-Ashburton Treaty. Botting stresses that from the outset, Webster’s successor as Secretary of State, John C. Calhoun, a die-hard supporter of slavery, “attempted to undermine and misinterpret one of the central pillars of the treaty, the rule of double criminality” (p.78). The author focuses on the enabling legislation, both the American statute, the Act of 1848, and the interpretations given to the role of the executive and the judiciary. Canada’s enabling legislation is basically traced through the extradition case involving [*447] John Anderson; the principles ultimately found their way into the 1999 Extradition Act. Interesting snippets of history reveal, for example, that John A. Macdonald, Canada’s first Prime Minister, when as Attorney General, he could act on an extradition without consulting the courts (p.88). Incidents that arose during the American Civil War also make for interesting reading.
There follows an insight into the litigation during the post-1867 Canadian Confederation with heavy emphasis on the 1896 case of R. v. DELISLE, involving the extradition request from Newfoundland, and Taschereau, J., of the Quebec Court of Queen’s Bench, whose response left a formidable impact on extradition law. The remainder of the chapter highlights the changes that were added to extradition law, such as recognition of the political offence exception, the acceptance of the rule of speciality, and the growth of extraditable crimes added to the list.
In Chapter Four, Botting traces the interaction of different aspects of extradition practice in the United States and Canada while demonstrating his socio-politico investigative talent. Chapter Five is devoted to the devolution of extradition procedures with mutual acceptance of the speciality rule, and assessment of need for adequate proof of foreign law, prohibition-era cases, instances involving improper use of the mail, fingerprint records, and evidentiary use of photostatic copies. In Chapter Six,“The Death And Resurrection Of Extradition,” Botting briefly reviews a series of extradition cases brought in the 1950s and 60s and outlines the changes brought about by the 1970 Canadian Federal Court Act, that he says “made extradition procedure in Canada incomprehensible even to judges” (p.197).
Events leading up to drafting a new treaty between the US and Canada in December 1971 are reviewed, and the story is also told of two Canadian cases in 1972 in which lawyers began to invoke the Canadian Bill of Rights in extradition proceedings “with marginal success” (p.201). Although the new treaty was not ratified until March 22, 1976, Botting’s assessment is that “[p] erhaps the greatest failure of justice in Canadian extradition history surrounds the decisions of both the extradition judge and the Minister of Justice in the case of Leonard Peltier, an American Indian Movement (AIM) leader accused of the 1975 murder of two FBI special agents at Wounded Knee, South Dakota” (p.217).
The 1976 US-Canada Extradition Treaty is the subject of Chapter Seven, in which the author reviews jurisprudence related to double jeopardy, offenses of a political character, treatment of minors, how Canadian Ministers of Justice have dealt with “No Death Penalty” Assurance, and whether there would be a recognized linkage between the Canadian Charter of Rights and Freedoms and extradition matters. The remainder of the chapter deals with a few procedural issues, how the rule of speciality operated, and the requirement of mutual cooperation between the Treaty Parties, as well as factors to be [*448] considered when there is joint jurisdiction to prosecute.
Chapters Eight and Nine concentrate primarily on the Canadian practice based on the scheme set out in the Canadian Extradition Act; therefore, it would be of most significance to both practitioners and researchers. The author follows the eight distinct steps outlined in the 1999 Canadian statute—namely, (1) Request; (2) Authorization; (3) Appearance; (4) Committal hearing; (5) Appeal of committal hearing outcome; (6) Minister’s initial surrender decision; (7) Judicial review of Minister’s surrender order; and (8) Final surrender decision. These steps are followed in all cases, unless the person being sought consents to committal, consents to surrender, or decides to waive extradition.
Botting does not gloss over any of the details in his appraisal of the process, and he notes parallels in the American practice, but tells us that since the Treaty came into force, “the courts have systematically whittled away the statutory comparison to the preliminary inquiry at the expense of the person in the dock” (p.278). Under the new Act, the extradition hearing “has been diluted by the prescription to judges to accept into evidence the summaries of prosecutors” (p.277). Moreover, jurisdiction to hear evidence of political offenses under the Act is now assigned to the Minister of Justice rather than the courts. Of particular interest to the reader is the Second Protocol to the Treaty, signed on January 12, 2001, which outlines the method for extradition requests from the United States to Canada but leaves extradition requests from Canada to the United States unchanged.
The role of the Minister of Justice is developed in depth by the author. It appears that the Minister “must ask certain questions, and may ask others, regarding the applicable principles and safeguards outlined in the Act” (p.299, emphasis in original). A great deal of legal interpretation is involved at this level, and the Minister relies on the International Assistance Group within the Department of Justice. Whether the extradition target also has a claim for refugee status or the requesting state has a death penalty statute are virtually unchallengeable. The discretionary domains of the Minister and the US Secretary of State are compared by reference to contemporary cases. The Canadian Act provides for a form of judicial review of the Minister’s decision, and Botting concludes that judges generally defer to the Minister (and quotes T.S. Eliot’s The Love Song of J. Alfred Prufrock: “deferential, glad to be of use” (p.324)). However, factors in a number of recent cases have “outweighed the tradition of deference” (p.331).
As a consequence of the terrorist acts of 9/11, 2001, American expenditure along the US – Canada border increased to almost $12 billion. Botting’s tenth and final chapter examines the so-called “Canadian connection” to these events, as well as the steps taken by Canadian authorities involving Canada’s Anti-Terrorism Plan to combat future acts of terrorism. Interestingly, while reviewing this book, the largest counterterrorism action by Canadian police occurred in a [*449] Toronto suburb on the weekend of June 4, 2006. The group of suspects had allegedly taken steps to acquire three tons of ammonium nitrate and bomb making electronic components. One early headline in THE NEW YORK TIMES warns, “Canadian Border Proves Difficult to Secure” (Shane 2006).
The volume contains three appendices: the first is the Canadian Extradition Act of 1999; the second, the US Extradition Statutes found in Title 18 of the US Code; and the third, the current Treaty on Extradition between Canada and the United States, and the First and Second Protocols. There is also a table of cases and an index. A concise and apt Forward to the work is provided by Professor M. Cherif Bassiouni.
Botting is to be commended for this thoroughly researched, and complex specialized subject. He brings both academic and practical experience to this work. Importantly, he has not written with legalese, and is easy for the non-lawyer to follow. His aptitude for injecting historical relevance makes it an enjoyable read, a quality only sporadically found on legal topics.
La Forest, Anne Warner. 1991. LA FOREST’S EXTRADITION TO AND FROM CANADA (3rd ed). Aurora, Ont.: Canada Law Book.
La Forest, Gérard Vincent. 1960. EXTRADITION TO AND FROM CANADA (1st ed). New Orleans: Hauser Press.
Shane, Scott. 2006. “Canadian Border Proves Difficult to Secure.” THE NEWYORK TIMES, June 5, 2006, p. A12.
R. v. DELISLE,  5 C.C.C. 210 (Que. Q.B.).
© Copyright 2006 by the author, Daniel C. Turack.