 It's my great honor to introduce you to Rob Curry, who's the first Carmine Law speakers this year. Then we do a number of these over the course of the year, so if you like this one, certainly come and see others or if you're interested in other topics, we invite you to come back and check out somebody else a little bit later in the term. You're lucky to get Rob first among other things. He's won teaching awards here kind of left-right in the center, so if he's a celebrated speaker or teacher at the school, he's got a broad range of things about which he's competent, which is always annoying for those of us who have a slightly smaller range. He's the current director of our Law and Technology Institute, so he's got a fair amount of administrative capacity. As I mentioned, he's a well-celebrated teacher here at the school and he turns out he's a scholar and expert in the particular area that you're going to hear and talk about tonight's International and Transnational Criminal Law. In fact, he has a book with that title, so he is literally the man who's written the book on the topic and he's been cited by Canadian courts, including the Supreme Court of Canada. He writes a blog. He's a very prolific guy in this area and so we're lucky to have him here at the law school and certainly I hope you'll get a little piece of how lucky we are in the remarks tonight. I guess I'd say just by way of giving you a bit of sense of who Rob is as a man, one of the things I really like about working with Rob is he's always the go-to guy on something. If you want a sort of short, snippy piece of information about a current case or a legal reform, Rob always knows what's going on. He's always on top of it and he's always willing to share his insights and ideas and I really appreciate that about him. Sometimes people think academics were sort of hide away from current events and for talking about things with other people, but Rob is definitely not that guy. He's the guy who will sit down and give you a good sense of what's going on. So without more, thank you for giving tonight's opening meeting long session. I hope you enjoy it. Thank you very much, Dean Brooks. It's easy to be the guy who gives you the short, pithy bit about what's going on when you don't actually know very much about things. You just know a little bit about a lot of things. That's my secret. I welcome to all of you. I'm very happy to see a good crowd, a good turnout, and very happy to see students here as well because they don't have to be here. This is optional, so not that there's extra points involved. Necessary. So I am going to talk about extradition. And extradition is, I think it's a really exciting topic. It is disturbing at the same time and most pressingly I guess right now, it's been in the news a lot of late. So I think there's more interest in this topic now than there has been for some time. Even over the last year in Canada, it's been in the news a fair bit and I can think of a bunch of examples. The major one is the extradition of Luca Magnata from, I guess it was from France in the end, back to Canada. One of our, not our most prolific serial murderers, but certainly one of our most horrific ones. That was one of the fastest extraditions I've seen for a while and that was interesting and very much taken up in the press. The well-known Canadian environmental activist Paul Watson is currently on a ship somewhere in the world on the run from not one but two extradition warrants issued for him by Japan and Costa Rica. So he's in a tight situation. Earlier this week a Guatemalan gentleman named Jorge Sosa was extradited to the U.S. to face immigration charges which is good in a sense although Sosa is a wanted war criminal in Guatemala and there's been some energy put towards the idea of maybe he should go and face those charges first. So that's been controversial. About three weeks ago there were reports about a gentleman from New Brunswick whose name escapes me who was living in the Philippines and was murdered there. Appeared to be a robbery gone wrong at first but apparently now there's an allegation that his wife was involved in the murder and his wife is or was at last report in New Brunswick where he's from. And of course that got some attention. Would she be extradited back to the Philippines? And that issue has died but I think it will probably jump up sometime soon. In Ottawa there's a professor from, he worked at both the University of Ottawa and Carleton University, his name's Hassan Dia. He's been fighting extradition in France for about five years. There's an allegation that in the early 1980s he was involved in the bombing of a synagogue in a suburb of Paris. And that's been going on for a long time. Dia maintains of course that he wasn't there, didn't do it. The case has been dragging on for a long time. It will go to the Ontario Court of Appeals sometime next year. I think it's nearing its final stages but as we'll discuss extradition can be a long drawn out process. Maybe the weirdest and most drawn out extradition case doesn't have a Canadian link but it's the one of Julian Assange, the WikiLeaks guy who is currently holed up in the Ecuadorian Embassy in London being given asylum by the Ecuadorian government there because he is facing extradition from the UK to Sweden to be questioned about sexual assault charges. Mr. Assange claims that it's all smoke and mirrors. In fact if he ever sets foot in Sweden the Swedes will send him immediately to the US where he thinks he's been secretly indicted for doing all kinds of things that the Americans like in the national security sense. And that one is there are more international law issues involved in that case than could even be put on an exam although one of these days I might try. But anyway that's just Canada aside from Assange. There is something that goes on all the time throughout the world between any number of countries in the world and it happens between Canada and the US very frequently. There is high traffic from here to there. There is some traffic from there to here but there are ten times the population you'd expect that. And yet despite all of this traffic and despite the media coverage extradition law and the extradition process itself I think remain kind of obscure to most Canadians and it should be said some people in many governments throughout the world including our government like it that way. They like to keep it that way. Keep the extradition law obscure. So I thought being a contrarian it would make an interesting topic for a public lecture and hopefully people will find it interesting and also be helpful to know more about it so that you understand fully how it is definitely something you don't want to happen to you. So tonight I thought we could do four things. First I'll give you a bit of background about extradition and what it is. World Nathan is bored already taking off. Second I'll explain something about the extradition process and how it works here in Canada. Third I'll discuss in a bit more detail some of the more controversial areas of extradition law and maybe give a few opinions about how I think a thing should be changed. And then fourth hopefully we'll have time for a bit of discussion. I can take questions or we can just have a discussion here in the room. So what is extradition? Well here's one definition. Extradition is the formal rendition of an alleged criminal fugitive from a state that has to be over the fugitive, which we call the requested state, to a state that wishes to prosecute the fugitive, which we call the requesting state. So I have a very sophisticated diagram here to sort of illustrate this. The idea is that generally speaking the person, and we usually call the person the person sought. Now we don't say fugitive because that's kind of rude and presupposes the guilt from the individual. The idea is that the person sought committed some crime in the requesting state and realized he or she would be in trouble and then ran. And they ran to the requested state. The requesting state investigating this crime realizes, finds out somehow where the person sought is finds out they're in the requested state. Sometimes interpoles involved in that process. Sometimes it's just good old police work and communication between national police forces what they find out. And the requesting state asks the requested state, please send this individual over to us so that we may give him a trial so that he may face justice in the requesting state. And that's in its simplest terms what that's what it is. That's the entire process in a way right there. It's also available where the person sought and in fact has been convicted of a crime in the requesting state but got away and ran to the requested state. There was a guy named Taylor to whom that happened in the 1980s. He was extradited from Canada in fact to serve his sentence which in fact was death. And we'll talk about that a little more later. Now when you read reports in the media about people who are sent by the government from one state to another, there's sometimes confusion about what process is being used and what's going on. So maybe helpful to explain what extradition is by telling you about other processes that are not extradition. Because you hear a lot of words used interchangeably. I've heard there's one story, I think it was one of the early stories about Assange where the reporter used the words extradition, deportation and expulsion all to mean the same thing. Which you know in the colloquial dictionary sense of the words would kind of make sense but each of them has a very distinct legal meaning. So first of all extradition is not deportation. Deportation is a device that's used under immigration law and not under criminal law. With deportation the government has determined that you are in the country illegally for some reason. Maybe your work permit expired. Maybe your student visa expired and you didn't leave as opposed to. Maybe you lied on your refugee application and the government has decided to remove you and you are removed you are forcibly removed from the country and you're deported. You will usually be sent to your country of origin but you can also be sent to any country that will take you. The focus with deportation then is on getting somebody out of the country rather than getting them to any place. Extradition is also not expulsion. Now expulsion means different things in different contexts but a good example of expulsion would be situations where a government looks at some employees of a foreign embassy and says you know what they say they're computer technicians but we think they're spies and we have evidence that they're spies. But if they're there with diplomatic credentials they can't be arrested they can't be tried because they have diplomatic immunity but the government may expel them. So that would be false. You guy in the Russian embassy this happened get on a plane. But that's not extradition. This one might be obvious. Extradition is not abduction. There is an unfortunate history of governments getting tired of waiting for extradition which can take a long time and sending agents to kidnap people who are wanting fugitives to get them back to their country for prosecution or maybe something worse than prosecution. A great example is Aikon. I know Aikon was abducted from Argentina and was eventually tried in Israel for his crimes during World War II and suffered not a fate worse than death, he suffered a fate of death and nobody's crying for Aikon but that wasn't abduction. Abduction happened here in Canada back in the late 70s, early 80s, a guy named Jaffe was kidnapped by bounty hunters from Toronto. This happens. Similarly extradition is not extraordinary rendition which we've heard a lot about since 9-11, particularly in the first seven or eight years after. Extraordinary rendition was where government agents picked up an individual in one country and shipped them to another place where they could be interrogated or tortured. So the distinction from simple abduction is that they weren't taken back to have a trot. They were taken somewhere else to have things done to them. Unfortunately that also happened with the Canadian angle as we know from the case of Mehar and Arar as well as several others. So with all of that there are two big differences between extradition and all of these things. So first unlike at least abduction and extraordinary rendition extradition is a legal process. The courts are involved. Government decision makers are involved. There is a law called the Extradition Act, a federal statute that sets the rules for how extradition works. People are entitled to get assistance from lawyers. They get procedural rights. They receive this assistance. Second though, all of these other processes are things that countries do basically out of self-interest to help themselves in some way. So if you're deporting someone, you're administering your immigration law, as I said, you're just trying to get them out. Extradition though is a way for countries to help each other. It's a way that countries cooperate with each other and it's very much based on the idea of reciprocity. You do it for me. I'll do it for you. Of course it's a self-interested kind of cooperation as well. I want to explore that a little bit. Why is it self-interested but why do countries do it? These days, extraditions often invoked and spoken of as part of the global fight against transnational organized crime. It also makes you think of globalization, whatever that means. But it certainly means that people and money and drugs and all kinds of illegality can move around the world very quickly and widen around the world. So that all sounds very modern and hip, if it's hip to say hip anymore. But the story of extradition in fact begins in ancient Egypt. I'm not making this up as Dave Barrett said. Some years ago archeologists uncovered what is thought to be the first extradition treaty ever and one of the first international treaties ever. So we're not talking about yesterday. This treaty saw the Egyptian empire agreeing with some neighboring kingdoms that if criminals fled into Egypt they would be apprehended and returned to the place from whence they came where they committed the crime. And these countries or empires agreed to do the same thing for Egypt. So this is early recognition, really early recognition of a modern reality. People tend to think of crime as being local and in fact it most often is. But it's not unusual at all for crime to have effects that spill over into other countries. And if the governments of different countries are going to effectively suppress crime then it's in their mutual best interest and our mutual best interest that they cooperate with each other in doing so. And as states are going to cooperate with each other then logically they do that by way of international law. The form of international law that governs most extradition is treaties. Treaties are simply agreements formalized agreements between countries. Extradition treaties are usually bilateral which means they're between two countries. There are sometimes big multilateral treaties between large groups of countries which do provide for extradition. Canada participates in both. We've signed on to a number of multilateral treaties but also have a fair network of bilateral extradition treaties. And I think it's worth saying that extradition therefore is a major part of how transnational crime is suppressed. And for Canadians it's in our best interest. The Canada have a good network of extradition treaties and a solid and efficient extradition system. I think it's worth saying that in part because academics are often criticized for well always being critical. Certainly I speak to crown extradition lawyers from time to time and more than once I've heard variations on the statement academics hate extradition. So let's be clear. I at least, whoever cares what I hate, I do not hate extradition. In fact I think Canadians are often too complacent about transnational crime and I think we should all be more invested than we are in making sure we have a solid and fair and efficient extradition system. I will of course have a few recommendations for how to be made better. So how does the extradition process work? I think the best idea maybe is to work through an imaginary case which will take us through the steps of how it would happen. How it could happen to any of us. So let's imagine the story of Bill who's a 25 year old guy from Halifax who went on an all inclusive vacation to a resort in Costa Rica. And one night he went off resort, he went through a local bar with some friends he got a little drunk and he beat up a local guy. Pretty bad. He left the bar a little before the police showed up. And the next day, sensing worse, he cut short his trip and he flew home to Halifax. And it turns out the police showed up at the resort to rest in a few hours later but he was already gone. The police in Costa Rica want the prosecute bill or having prosecuted by other courts for assault causing the way hard. And they find out from the hotel that Bill lives in Halifax. And they talk that there are government lawyers and the government lawyer say right, well Costa Rica has an extradition arrangement with Canada. So maybe we can get this guy back. Bill is back in Halifax thinking no trouble. Got away from that. What happens? First there's a request. The government of Costa Rica would send a request to the Department of Justice Canada in Ottawa called the International Assistance Group. And this is a specialized division of lawyers that handle our extradition relations with other states and they advise the Minister of Justice on these issues. Now Costa Rica might formally request the extradition of Bill from Halifax back to Costa Rica or they might send a request that Bill be arrested on a provisional basis so that they have some time to put together formal requests. In either case, lawyers in the International Assistance Group would look at the request, they'd look at our extradition agreement, they'd make sure that the request applied with all the parts of the agreement and the requirements under Canada's extradition act. Make sure all the boxes are checked and all the eyes are dotted when he's frozen. If they did, then the Department would issue a ministerial order called an authority to proceed or an ATP. So that's the first stage. The ATP essentially brings to life the Canadian justice system to process this request. So then they would send the documentation including the ATP to a prosecutor here in Halifax. And that prosecutor would get an arrest warrant from a court here in Halifax. And then the Halifax police would show up possibly the RCMP would show up at Bill's door and arrest him and he would go to jail. Probably just for a short time he would probably be able to be bailed out. He might have to surrender his passport though as part of the bail commission so that he couldn't flee Canada pending the resolution of Costa Rica's request. So we're all built. What's next? After a while there would be a hearing before a judge of the Supreme Court of Nova Scotia called a committal hearing. And this is often just called the extradition hearing historically it was. At the committal hearing the judge has to decide two things. And I will tell you up there. First is Bill indeed the person whom the Costa Rican government wants extradition. That's usually not a big deal. There have been cases where the wrong person was requested or it couldn't really be determined from the request who the individual was. Usually not a problem. Second though at the committal hearing the judge has to decide whether the requesting state in this case Costa Rica has presented enough evidence to justify the extradition. So this is an important point. People are not just extradited because another country asks for it. The requesting state has to prove to a Canadian judge that they not only have grounds to suspect that a crime has been committed but that they have evidence that they will present in court when they do the trial back in your request. So the judge's job is to look at the evidence and then she asks herself two questions. First question is is what Costa Rica is alleging Bill did a crime here in Canada? This is often called double criminality. The idea is simply that most countries generally don't extradite anyone to face prosecution for something that's not against the criminal law in the requested state. So as a simple example in Kentucky you can be prosecuted for the crime of buggery. I'm not making this up. You could not be extradited from Canada to face prosecution in Kentucky for the crime of buggery because we don't recognize it as a crime. So the judge makes that determination. Then the judge looks at the evidence that the requesting state says it has because often all that's there is a summary of the evidence and asks herself this, if that evidence was presented to a Canadian court is it possible that the person would be found guilty for this crime? If so then Bill is committed for extradition by commission so I would call it a committal hearing. Now note that last question that the judge is asking. She doesn't say on the basis of this evidence would I find Bill guilty? Just is it possible? The way it's phrased would a reasonable jury properly instructed acting reasonably find Bill to be, could it find Bill to be guilty on the basis of this evidence? This is an important point. Implication is not a trial here. We have court part, we have a hearing. It's not a trial here for the offense committed in Costa Rica. It's just a process by which Canada decides whether or not to send Bill back to Costa Rica for his trial. That has implications. And they're not always very friendly implications to the person saw. So for example, Bill's lawyer will have the request documents from Costa Rica and Bill might look at the stuff and say hey they have a witness who says I started the fight but that witness is lying. That guy came at me with a broken bottle and I was just defending myself. I think self-defense is a total defense and you shouldn't extradite me. And Bill might be pretty angry about being extradited down to Costa Rica at the face trial based on the testimony of a witness who he knows is lying. But our extradition law and the extradition law of most countries says if you have an argument to make about self-defense make it at your trial in Costa Rica. We're not doing that here. The trial is not here. There is a little bit of space for Bill to argue that Costa Rica doesn't have a good case against it. It's a very small space that the Crown has tried for years to keep closed and the courts opened but have been narrowing as well. I'll talk about that a bit later. One other thing the extradition judge can do is this. If the requesting state has been acting in an unfair or in an abusive manner, the committal judge, the extradition judge can put a stop to the whole thing. Very unusual. It doesn't happen very often. I think there are about six cases in Canada where it's happened. A very noteworthy one is a case called COB. COB and a bunch of others had clearly been involved in some illegal fraud down in the US. They were all wanted for extradition. They all had a lot of money and they fought extradition for a long time. At one point the prosecutor in the American case went on W5 and said these guys should stop resisting extradition. Because if they don't, when they get down here we're going to put them in prison and the boyfriends are very bad men. That was a bit disturbing. And the judge who had been supervising the case in the US made some remarks as well, some public remarks which were not. Didn't give a sense of fairness about the whole thing. And the Supreme Court of Canada said right, we're putting a stop to that. This is a situation where our otherwise good friend and good extradition partner of the US has abused the process of the Canadian court. So it is the judge at the committal hearing who can do that. This happened quite recently in fact in the case of Abdullah Qadr. Abdullah Qadr is the older brother of the famous Omar Qadr. And Abdullah Qadr was apprehended by Pakistani authorities in Afghanistan at the request of the American government and he was, they paid a bounty on him, in fact there's a half million dollar bounty on his head. He was taken to Pakistan, he was kept in some kind of security detention. He was mistreated quite vigorously. He was interrogated quite ruthlessly by the Pakistani intelligence service and the CIA as well. And they got intelligence out of him. Canadian government officials were in the background saying I think you've got our citizen in there because Qadr is a Canadian citizen. And we're stopped at every turn by the Pakistanis acting at the request of the Americans. Qadr was eventually released into Canadian custody whereupon the Americans made an immediate extradition request. Or in the face of terrorism charges. Down there. And Justice Chris Spire of the Ontario Superior Court of Justice issued an abusive process or stopped the entire proceeding. Again, because he had been mistreated at the behest of the very government that was now requesting his extradition. And that order was upheld by the Ontario Court of Appeal. She was upheld because the Crown appealed it. The Crown wanted to extradite. Caught her down in the US, despite all of this. Now they had an obligation to act for their treaty partner as well. So I'm not suggesting the Crown is just off on a throttle of its own here. The Ontario Court of Appeal overturned the thing quite or didn't overturn it. So it upheld it quite strongly. The Crown appealed to the Supreme Court of Canada. And the Supreme Court of Canada denied the appeal which means they said they wouldn't hear the case. But that one went all the way up. Top courts. Okay, so but back to the committal hearing. As I said, that abusive process thing is unusual. If the judge decides the Costa Rica's case is in order and Bill is committed. That means that the case now goes to Canada's Minister of Justice. And the minister makes the ultimate decision about whether or not Bill should be extradited or what we call surrendered to Costa Rica. Now the minister's decision is often described as one that mixes law and politics. And that might sound irregular, but it really isn't. It's a legal decision that the minister makes because the minister's decision has to comply with the Extradition Act and the various requirements and it also has to comply with the Canadian Charter of Rights and Freedoms. It's said to be political because in making the decision the minister has to be concerned with Canada's relations with the other states. With its extradition treaty partner states. Extradition can be a heavily political matter and a refusal to extradite when you have a treaty obligation to do so could have diplomatic consequences. So there is a political aspect to it in the international policy sense. The diplomacy sense I guess. So the result is that the courts are very deferential to the minister's decision and while they can overturn a surrender decision they are very unlikely to do so. And they do not do so with any frequency. Now there are some limits on the minister's ability to surrender. Most of which are built right into the Extradition Act itself. The minister is meant to refuse surrender in for example in obvious cases. It's clear that the requesting state will torture Bill. Or that the prosecution in Costa Rica is based on some kind of discrimination against Bill. By discrimination I mean like in the racial sense that kind of thing. Or if it's really a political matter. If Bill was in fact going back and forth to Costa Rica a fair bit and he got involved in local politics and he was involved with the opposition party and the government didn't like him and they were trying to get him back so that they could do harm to him under the guise of a regular criminal prosecution. So the minister would be meant to refuse extradition in that kind of case. At this stage the surrender decision stage Bill is entitled to make submissions. To the minister written submissions. More realistically of course Bill has his lawyer make those submissions. The lawyer can argue that one of those things I just mentioned earlier is happening. Or that there's some other reason that it would be unjust or oppressive to extradite Bill to Costa Rica. Maybe Bill is ill. Maybe he's mentally unstable. Bad things might happen to him that he's surrendered. That kind of thing. For the most part these arguments never work and the minister orders surrender. Now Bill could then go to the Nova Scotia Court of Appeal and argue that the minister's decision was wrong. So it's a judicial review of the surrender decision. But to make out that argument Bill has to meet a very high standard and that standard is the court would have to decide that it would shock the conscience of Canadians for him to be extradited to Costa Rica in this situation. Now these shocks the conscience cases are rare. In fact this has happened. This argument has been made successfully only four times. At least on the modern version of the test. The first time was in a case called Burns in 2001. Burns and Rathen who were the subject of an extradition request in the US. They were not delightful people. Burns had basically acted as a contract killer for Rathen to kill Rathen's entire family so that they could get the insurance money and split between them. They were eventually convicted of this. But what they fled Washington State to Vancouver they were arrested and the extradition request was made but they were going to face the death penalty. The Supreme Court of Canada eventually ruled in 2001 that it would be against the Charter. Against Charter values it would shock the conscience of Canadians to extradite anyone to face the death penalty. Because the worldwide trend was towards abolition of the death penalty that Canadians don't have the death penalty anymore. We haven't had it for quite a while. And that that was not going to happen. It happened in the case of a guy called Rudy Pacificado who came out on the wrong side of the big change of government in the Philippines. And the Filipino government had no extradition treaty with Canada but negotiated one over the course of years because they really wanted to get Rudy Pacificado. The litigation lasted at least 10 years. I think it was 11. And in the end the Ontario Court of Appeal found on the evidence that what Pacificado was facing if he was sent back to the Philippines was basically indefinite imprisonment with no access to legal advice, with no access to a court even to inquire as to why he was being detained. And there was evidence that the government of the Philippines was messing around with the judiciary. The third time it happened successfully was in a case called Fowler of the Quebec Court of Appeal. Last year a weird little case it had to do with extradition to face a life without parole sentence. The fourth time it happened was in a case called Leonard and it happened like six days ago in Ontario. Two guys both have original, both narcotics offenders or at least alleged narcotics traffickers sought to be extradited to the US. It was clear that in American sentencing law where their statuses have original people and the conditions that they basically grew up under were not going to be taken into account in putting a sentence together. And in Canada that's how we do things. We take that into account. And the Court of Appeal held it would be too shocking and too impressive for those things not to be taken into account and they put a stop to it. But that's four cases since 2001. What about Bill? Anything shocking to the conscience about Bill's case? Probably not. Run of the mill, assault, nothing particularly out of the ordinary about it. Assuming that the Costa Rican court system works okay. Are we happy about this? Well, we have an interest in justice being done. And that assault victim in Costa Rica if indeed he is an assault victim, deserves justice as well. And when you look at more serious criminals like people who are engaged in heavy duty fraud, cyber crime robbing people, murderers, rapists the alternative to extraditing them from Canada is that they will stay here where we can't often, can't prosecute them for what they did. So that's not a particularly palatable idea either. So Bill may very well go to Costa Rica. He'll be rough on old Bill. He'll be put in jail after the surrender decision is issued. He'll be flown to Costa Rica. He will likely get access to a lawyer there, but probably not what we would call effective representation by our standards. And it's entirely possible that he'll get a much longer prison sentence there than he would have gotten here. And it's easy to imagine that the prison conditions he's going to face in Costa Rica will not be comfortable. Although I gather that Don Jail is pretty bad in Ontario just to be fair. So all of that might make us unhappy about Bill in some sense, because he just got into a bar fight. Neither the crown nor the courts care very much about that. And that's the way the law is structured. The courts are very slowly starting to come around to the idea that it might not be fair to extradite people when they'll get a massively larger sentence in the requesting state than they were here. But we're not there yet. That's a problem. No. The law, our extradition law, presumes that the requesting state is an acceptable place to send anyone, including a Canadian citizen, to face trial. The law assumes that the Government of Canada has investigated the treaty partner state has considered its justice system and has found it to be an acceptable place to extradite. And on that basis form the treaty. It's nearly impossible to overcome this presumption. But would you want to be extradited to Thailand or Argentina or Russia or Liberia or Colombia or Romania? These are some of the countries with whom we do business extradition wise. If you read reports about these countries by Amnesty International or Human Rights Watch, that might answer the question for you. That's not a law enforcement network. That's a rose gallery. If you were a tourist or living briefly in one of those countries and you got into some kind of disagreement with the local authorities and they charged you criminally after you left, would you want to be extradited back there? I wouldn't. And as you may have guessed, that's one of the few problems that I want to point out. Now again, caveat. Having good strong extradition laws is in all of our interests. And before you think I'm all about beating up on the crown it's really important to acknowledge that the Minister of Justice and that Department of Lawyers have difficult jobs and they do their jobs well and they do good things. There was a difficult case regarding an extradition to Thailand I think it ended about four years ago and in that case the minister essentially negotiated an agreement with the government of Thailand saying we need some special conditions imposed on this situation and we need you government of Thailand to assure us that you can protect this guy and what will happen to him in custody. He won't fall down and get ten bullet holes in his body, this kind of stuff. Looking out for the interests of that person that's a good thing. In the case before the Quebec Court of Appeal I mentioned a few minutes ago the minister went clearly on the record saying that extraditing a minor to face a life without parole sentence would be contrary to the basic principles of justice and the minister said that he would not order that and that's a good thing too. There are some other things that might cause you concern or at least would bear thinking. Just as an example the poster that was advertising this talk out around the community asked this question do you have to leave Canada to be targeted for extradition? Now I wrote that and realized after it's not that clear. What I meant was can you be extradited somewhere else for something you did in Canada and the answer to that question is yes sometimes. Sometimes countries use what's called extraterritorial jurisdiction to prosecute people for things they do in other countries they won't say. And there's nothing wrong or illegal about that. It's very standard under international law for example Canada has now prosecuted two individuals who were involved in the Rwandan genocide why? Because they ended up here and we were best suited to try them. Did we otherwise have any jurisdiction over the course? No part of the Rwandan genocide happened here in Canada and they exercised extraterritorial jurisdiction over the crimes of genocide, crimes against humanity and war crimes. So this extraterritorial jurisdiction jazz is a good thing as long as the process is followed and it can produce good results. So let's put Bill in another situation say that Bill had a little operation here in Halifax where he would phone up senior citizens in Louisiana and he would defraud them by selling them insurance policies that didn't exist. And that he would then go back and get another policy and he would tap out the life savings of these people and he made a million bucks doing this. Could we prosecute Bill here for doing this? Well yes part of it happened here he made the phone calls from here he probably put his money in a bank here maybe maybe put his money in a bank closer. We could prosecute but the victims who require justice are in the U.S. in Louisiana. We could extradite him down there and nobody would really be to serve. That's okay. It's not going to be that attractive though in every case. What about computer hacking? That can happen in a number of places. A place where the individual was sitting doing the hacking is only one of the many many places that the crime could touch. And this has become an issue in the U.K. There's a guy named Gary McKinnon who is an expert computer hacker. He's also artistic as he has Asperger's in him. He hacked into the systems at the American Department of Defense from his bedroom in in England and apparently did a lot of damage some allegation he did about $300 million worth of damage that is very doubtful. What is not doubtful is that the American government is really mad at him and he's been charged under every law they can think of in the U.S. The British government cannot wait to extradite McKinnon over to the U.S. And the only thing that's kept in there is the massive public outcry and really good lawyer by his defense lawyers. The idea simply being look at this guy look at his situation Could we prosecute him here? Yes. For what he did Britain has laws that would allow them to prosecute him even though the damage occurred in the U.S. they could prosecute him for the hacking. Probably better for to face British justice in that sense than to go to a place where there is shall we say stronger feelings about what's going on. Exeteritorial jurisdiction not always good. Canadian example Mark the Prince of Pot. Remember him? Here's a guy who sold a lot of marijuana seeds among his various other activities He sold seeds by mail order. He sold many of them to Americans Did he ever leave Canada? Not to my knowledge He didn't go to the U.S. Eventually after a long public campaign, a long drawn up prosecution charges were laid against him in the U.S. for this he launched a new and extradition proceeding which many of us thought was going to go on for a long time and go to the Supreme Court of Canada and we would get some things resolved there because of course the offensive part of that is that this is a crime that we barely even enforced in Canada. We did it on the books it's none of the controlled drug substances act but not one that there's a lot of vigor nor a lot of political will for in Canada He didn't contest extradition in the end. He struck a plea bargain with the American prosecutors to basically let some of his friends and associates off the hook. Went down. And is now in prison down there. Now again is there anything illegal about the Americans asserting jurisdiction over this offense? No. It had effects in the U.S. They take jurisdiction over that kind of thing the same way that we would there's nothing offensive about that. I suggest though that Canadians might want to ask themselves whether we think it's acceptable for a Canadian to be extradited down there for selling marijuana. This isn't Bill defrauding widows in Louisiana. Different thing. People might want to talk about that at least have a democratic type dialogue My next point is this. The main idea behind extradition historically was that it was geared towards the really serious kinds of crime. Murder would be an obvious one. The lower level stuff what we would call summary conviction offenses or what are often called misdemeanors in American criminal law were never meant to be caught by extradition. Extradition proceedings are expensive they are time consuming. This kind of stuff is not what we want our tax dollars to be spent on. That was the rationale However in many of our current extradition arrangements including our treaty with the U.S. Bill or you can be extradited for any crime that would get you a sentence of one year or more if you give it in Canada. One year is not much of a sentence you don't even go to a federal pedant entry if you get a one year sentence The result is that Canadians and others can be extradited for what I can only describe as a bewildering variety of minor garden variety offenses What kind of minor conduct? I'm talking about for example someone who steals a child tax benefit check worth $70 fraudulently endorses it and caches it. It's right there in section 362 of the criminal code. You can get up to two years for that I'm not suggesting that there'd be big extradition traffic on that offense but that's the kind of low level offense. I'm talking about someone running a bingo. It's right there in section 206 of the criminal code never gets prosecuted. Half of the Catholic church would be jailed if it did but it's there. And that's not even counting the array of very small potatoes regulatory things under hundreds of statutes. Now surely I'm exaggerating. Surely this is hyperbolic. We can leave this to prosecutorial discretion rationally speaking no American prosecutor is going to commit a lot of resources to really low end stuff Extradition is expensive, time consuming, judges and lawyers and bureaucrats on both sides of the border working and working Surely that's not going to happen. Let me tell you a story about a guy from Frederick the New Brunswick named Dwight Hickey Dwight lived in Yellowknife for a while and he was given as a present a polar bear rug which he didn't really have any use to but hey you know you're in the north and you're hanging on the wall. Dwight moved down to Georgia, Mason, Georgia in the U.S. to open up a home basically a transition home for people who had been released from mental institutions He and his sister and his brother-in-law opened this charity home or they were planning to and they were living there in Mason and they found a facility they wanted to rent to have the home in but they couldn't come up with the money and then out of the blue like a god send some guy lands I heard about your polar bear rug you want to sell it because Dwight had sent for a few of his things in the Yukon clothes and boxes and stuff and his friends had sent all of his stuff to including the polar bear rug which he never asked for but there it was and so Dwight said yeah I could sell that so the guy buys the rug from him for about $4,000 I think it was and Dwight takes the $4,000 and is able to put the first and last month's rent on the charity house which is great so that operates Dwight's relationship with his sister kind of went wrong decided he'd go home so he goes home to Frederick or Muckland just outside of Frederick and forgot all about it until spring of 2009 the Frederickan police showed up at his door and said you are under arrest we have an extradition warrant for you from the state of Georgia you Dwight Hickey are wanted on three charges of importation possession and sale of a part of the protected animal federal environmental offenses in the US five years maximum sentence each now what do you have gotten 15 years of course in Canada if he had been prosecuted at all it would have been under the version of our law that says six months or a $25,000 fine probably talking a sustained sentence and minor fine because those laws are set up to get traffickers in wildlife arts and protected wildlife arts and they are very good laws they are very important but Dwight was going to be extradited to face federal charges in Georgia for this and he went through the entire extradition I guess I got involved in the case towards the end and a lot of energy was being put towards the judicial review of the minister's surrender decision but the minister Rob Nicholson ordered him destruction and declined to extradite which we thought was a miracle certainly unusual not as unusual as some of the defense lawyers would tell you but it was unusual I think it was due pretty clear it was due in no small part to the fact that the media got a hold of the story some pressure was put on the government there was a big letter writing campaign people were openly threatening to make this a big political issue and to be fair it wasn't a usual kind of case so why did I bring it up to underscore this point about how you can be extradited for something you would get a year for I said surely no sane prosecutor would seek to have you extradited for some small potato stuff this also raises the problem of sentencing though quite apart from minor crime major crime as I said Dwight here 6 months fine up to 25,000 up to 15 years in federal pen in the US there's an imbalance there it's one thing to say that it's okay to extradite someone if both countries think the conduct is criminal it's apparently another thing to say that it's a good idea to extradite someone to a country where they'll get 10 times the sentence they would if convicted in Canada but the minister of justice to say the least is hostile to this idea in all the litigation and our law is structured that way as well think about life no parole life no parole no eligibility for parole a sentence that's available in the judicial systems of a number of our treaty partners is that really an acceptable sentence anymore life no parole no chance of parole even if you get rehabilitated even if you find God and get really good after doing 15 years in prison we don't have life no parole in this country for good reason and the courts are pushing back on that one but we're not there yet another problem remember at the committee hearing stage the judge looks at the evidence that the requested state has presented or says it has because all they have to do is present a summary and a signed guarantee from a government official in the requesting state saying we have this evidence and we will present it at trial and he's literally on a guy named Hassan Diab who is facing those terrorist charges in extradition to France at the extradition hearing in Hassan Diab's case the main evidence against him and there were five or six different groups of kinds of evidence that France indicated that it had a lot of it was very circumstantial to say the least and circumstantial evidence had or weak but a lot of it was not very convincing the main evidence that they had was a handwriting sample from the hotel that the bomber had stayed at and the handwriting sample of the bombers handwriting had been matched to a sample of Diab's handwriting by a handwriting analysis expert that France had employed to do this and this is criminal evidence lots of kinds of stuff you can beat down the requesting state's evidence if you can demonstrate that it's manifestly unreliable the extradition judge is meant to look at the case and say if the case is based in a major way on manifestly unreliable evidence then it should not go Diab had at least two and I think three other handwriting experts all of whom have abolished the evidence of the French expert they questioned her methodology in particular they basically made a hash of that evidence demonstrating if I read the case I think they demonstrated it was manifestly unreliable Justice Marringer who was the extradition judge said quite clearly it was a hard case he had a difficult decision to make at the end of his judgment he said the case against Mr. Diab is very weak anywhere in the world where he got a fair trial he would not be convicted on this evidence nonetheless that was his reading of the law that was the reading of the law the minister of justice urged on him successfully if reluctantly on Justice Marringer's part so an appeal on that one is going to the Ontario Court of Appeal we'll see what happens with that I think though it's emblematic of a certain problem with that part of the extradition process two other things you can tell I'm conglomerate with this for a while two other things and this is more of a general airy-fairy law professor kind of thing to say there's a certain anti-democratic quality about all of this because I don't want to come as if I'm blaming the minister of justice for everything all of this is enshrined in our law in the extradition act how it's been interpreted by the courts but do we ever talk about extradition about extradition law? we talked about extradition we talked about luka menyada till we were blue in the face but we don't talk about the law we need to talk about on a more general level I think Canadians need to be more aware of this law and how it operates and they should be aware of course that it operates effectively in many situations and does good things and protects us and helps the cause they should also be made aware that there are problems and people fall through the cracks I think we need to exercise our entitlement to have a little more input into this process extradition treaties though are drafted and negotiated by government lawyers the extradition act or our new act from 1999 was designed by Crown lawyers with the express goal that it would serve Crown purposes well now the Crown is us let's remember that it's a representative democracy but the us part of us didn't have much input into that process the treaties are not tabled before Parliament or to the extent they are exercised and nobody really pays attention and treaties are negotiated behind closed doors and I can tell you as an extradition researcher that many Crown lawyers are very secretive about extradition generally not all by any means many are so I'll just close on that point I guess I think we need to read democratize our law I think we need to take back our extradition law on the road to making sure it's efficient and that it operates well that it serves our needs that it serves the needs and by our law enforcement needs and it serves the law enforcement needs in our treaty part that part I think we've got down it's time that we spent more energy on making a fair and I hope maybe after tonight you'll give that some thought because you can see the next bill thank you very much for listening to me for this long I'm happy to take questions we can have a discussion so when you document trees and think you know even though you're trying to be law abiding anything could happen if you're in a foreign country and if you're bombed yourself in trouble do just wrong place wrong time whatever what should you do just search for the Canadian consulate first what would you do to try and get help if you're stuck in a situation like sort of no fault of your own or you don't realize or for example you brought up a bill like selling that rug that you wouldn't realize something that was illegal or something so what does it mean if you do what you are sort of I know it doesn't really fill with the extradition but sort of like being in a foreign country because you're stuck in a situation you know especially if you don't know whether you can get a legal counsel or you know depending on what country you're in so what does your first law of action do in that situation you would do I think I mean I wouldn't give this to you in the sense of legal advice but I think you have the answer which is get in touch with whatever representative of Canada you can track down in that country the consulate will give you a certain amount of help they know what to do they typically know the local processes you should be able to get access to local legal counsel that way and the other thing you would want to do particularly if you were banged up you know in prison or in a criminal process is make sure people here in Canada know what's going on because there are a personal at Foreign Affairs International Training in Ottawa who work on these files as well to keep in track of your situation if there were communications to be made to the foreign government then those are the people who do it it's really important in these cases that you have somebody here to agitate for you because it is the government that they work out to the same everywhere you want to have an advocate you want to make sure that somebody is keeping the ball rolling there are lots of success stories when your Canadians were in the foreign countries when you were in prison in Mexico they got her out eventually not long ago a deal was done behind the scenes and that's what you want to happen in that situation access as much help as you can if you're of modest resources though that can be a challenge and if your name is Omar Cotter you won't get any help from the government in Canada and Omar Cotter is not the only one and I suppose that's the closing point on that is it may depend on who you are and what you're alleged to have done because this government picks and chooses his favorites who it will support and who it won't and all you have to do is think about Bustia and Ambarazik and somebody else on my radar oh what's his name Smith in Montana Canada agitated the government of Montana to non-executing because he's on death row and then a very quick decision was made to not do that and that went to the federal court of Canada the federal court said that the decision making process by the government was unfair and they said okay federal government this was just as far as from Halifax just as far as said okay federal government get that policy out that the Liberals had about how where any Canadian facing death row any country in the world you would make representations to that government to say please don't execute our citizen please show mercy take out that policy dusted off and apply it to Ronald Smith so the government of Canada wrote a letter to the clemency authorities in Montana dear clemency authorities we are writing this letter in support of the application of Ronald Smith for clemency from the death penalty because the federal court of Canada has ordered us to do so that's how this government does business I'm verging way over into political commentary here which is maybe not what you came for but my students would tell you I have many opinions I don't think so I think that's a perception and in some cases it has done that and those cases have gotten a lot of coverage I think it would be unfair to the government to say that that's their policy it very much depends on what the situation is and I think the best example of where it's not true is the case of Abdul-Laqadar and Abdul-Laqadar on the evidence is a very bad guy he is probably a terrorist he's our citizen but the Canadian government when he was apprehended in Pakistan he was being mistreated and interrogated the Canadian government officials were right in there all the time saying you have to give into us you have to give us information we have to get access to them you're breaching your obligations under three different international treaties so the government was right in there not just the Liberals the Harper government as well they were in there trying to get access to them they were very aggressive in their attempt to extradite them to the US once he got back here but there is an example where it wouldn't be true to the stereotype of this government but you had good diplomats, good lawyers and mostly there were a couple of agents who were doing that work and they did very good work it's a bit more complex I would say than the media has made it out to be I wouldn't want to be the test case I wouldn't want to be the one in trouble and say are they going to help me or are they not going to help me Omar or Abdul-Laqadar Omar, no pretty much the same across the board and that's another thing this government has a reputation for being very long order oriented but the current very aggressive stance of their extradition law goes back to the Liberals they engraved it up they designed it this government has been happy to carry on with it but they haven't had to change anything other than I would say the level of energy that they put into their extradition Bill decides to run away from a country and come back to Canada and that country doesn't have a tree with Canada does a tree have to be negotiated before they can ask for a bill back yes and no, no in the sense that they don't have to spend years doing a formal treaty but yes in the sense that they could make an arrangement saying okay whatever country, we don't have an extradition treaty and we're not really interested in negotiating one with you but you know what we'll do a one time agreement, one time deal for this guy so there's a level of the important to help Bill decides not to surrender Bill does that mean Bill is completely off the hook or can he charge for anything he's done in the other country if he decides not to send it back well it depends on the situation, so with Bill Bill is off the hook in the sense that he can't be prosecuted in Canada because we don't take jurisdiction over assaults that happen in foreign countries we can't go back to Costa Rica because there's probably an arrest warrant if it's a serious enough crime Bill might not be able to leave Canada because if there's a red notice floating around there's a red notice which is an international arrest warrant Bill goes to England and then he's on his way to Belgium and whoops somebody grabs him at the airport hey buddy you're going back to Costa Rica and Bill is fictional Dwight Hickey the polar bear guy is very real Dwight was offered a job up in Alert which is a Canadian military base very very very far north and he I became acquainted with Dwight after the case so he told me this story he got off of this job and he was looking at it and tracing his route and he realized he would have to go through US customs in Greenland in order to get to Alert so this was the situation that he was in and he realized that if he went through US customs he'd be arrested he still wanted on federal environmental charges in Georgia so he can't cross the border he doesn't know if there's an interpol red notice out of it one polar bearer probably not I don't think he'd bring in the man from Interpol, but there might be so there's his liberty and his security being threatened by this extradition situation which even our minister of justice thought was so wonky he ordered him not extradition so people can be left in situations Julian Massage is in a very weird situation if he steps foot outside that embassy the British authorities will grab him and send him this week so certainly you can restrict your life with some of the exceptions in cases where you do have an extradition agreement but you would choose not to extradit picking up on the son of an intercom what would be maybe an incentive to not sign an extradition agreement with a particular extradition agreement one of the reasons he wouldn't engage in that kind of bilateral agreement we don't have an extradition treaty with Iran so there's a good example that certainly looks at the human rights record of the country in question and you know it's quite realistic would we ever be able to send their citizens there even if we wanted to we don't have an extradition treaty with Saudi Arabia or Qatar I don't want to pick on the Middle East there's lots of other bad ones sorry I'm picking like Ecuador and Sweden do they have an agreement? I guess I'm just wondering whether the reason they would not extradite Ecuador with an extradition is it related to some of these you know more procedural decisions whether they have evidence or the treatment of a peer treatment or is it because they just don't have an agreement and what do they use that? I don't think there is a Sweden Ecuador bilateral agreement because presumably Sweden would have asked for him by now it's a funny situation that one because Ecuador Ecuador's president in particular clearly liked the idea that Julian Assange was always poking a stick in at the Americans and what the effort they've been going under is to say Sweden look and you know he has said this for as long as I'll go as long as you guarantee me that I'm not going to send someone else after they refuse they just keep saying no he has also made what I think is the very reasonable request the Ecuadorian government has said hey Swedish prosecutors he's only wanted for questioning at this point he hasn't been charged in Sweden hey Swedish prosecutors come to the Ecuadorian embassy in London you may question him for days if you want to it's very reasonable nope they won't do that which just feeds into the notion that there's something more to it than that and this is like one of the lessons in this stuff that I always try to teach our students is that it's a mixture of law and politics it's not pure law at all there's always political diplomatic considerations underpinning a lot of, I wouldn't say all but some of it is very meat and potatoes stuff you know run-of-the-mill narcotics traffic fraudster cyber-criminal you know people are extradited out of Toronto today practically but a lot of the cases the cases with international implications can be quite interesting well both I mean it may very well so if a government refuses to extradite an individual to another country even though there's a treaty obligation to do so then they've breached the treaty now that's if they don't ground it in some exception under the treaty and the treaties have often some open language and they give the governments a bit of wiggle room in this situation we're invoking this exception in the treaty so then you haven't breached the treaty you've gone under the rules either way though it does have diplomatic implications and exactly as you described you know country the next time you make an extradition request in that country they might say hey remember two years ago when you went and extradited Bill yeah well guess what you're not getting back that guy you want what countries don't do with extradition for the most part is drag each other to court because there's only one court the international court of justice and they typically don't exert that kind of energy except in a case that just came down from the international court a couple of months ago where Belgium brought an action against Senegal because Senegal refused to extradite a former caddy and dictator who just wanted for all kinds of nasty stuff and they actually won that case so that was a breach of international law case that was won very energy in the extradition context but yes it has implications is there any way for maybe a group to come in and say yeah this guy's not necessarily funding extradition because maybe we don't know about it but we've got a point that is had by some terrorists in another country but we think this extradition is not acceptable so we can issue a review on it I mean no is the short answer it's the decision of the individual who is subject to extradition whether or not they wave their rights to all of that procedure or not nobody can really trump in and say well we want to fight it on his behalf anyway I mean in a weird situation where there was something wrong and the court was able to say I don't think this waiver is a true consent then I can imagine a situation where the court might say well we're going to have to let the process go because this guy says he's consenting to extradition we don't think he is truly consenting because his being pressures being exerted on him in some really irregular way but people very often consent to extradition and in fact consenting is sometimes the best strategy because most of the people, I've told you a lot of horror stories here most of the people extradited from Canada are criminals and they are guilty just to leave it on a positive note and their best advice if they get, if there's a request out for them they are best advised to get a lawyer here in Canada to retain a lawyer for them in your requested state to negotiate a plea bargain I will not contest extradition if you drop that charge and if you drop that charge and I agree to do five years instead of 20 and the American prosecutors will often say okay those plea bargainings are much the same anywhere they'd rather get a result and so in those situations where your client you think clearly did what he is alleged to have done down in the US then that's the smartest strategy in fact is just to get in there and negotiate the best result on the far side of the board that you can get that's an interesting case and Brazil is like that a lot of European countries are like that what's being described is the constitutional arrangements of the country forbid them extraditing their own citizens Germany is like that they won't extradite their own citizens what they do in an ideal world is exercise extraterritorial jurisdiction so say a German citizen has committed a murder in Canada gets back to Germany Canada says to Germany hey can you extradite that guy here so we can try and murder Germany would say sorry our constitution says we don't extradite our citizens to Canada or anywhere but give us the evidence and we'll have a trial they do that we typically don't do that in Canada but other countries do so that's the way the problem is negotiating it around whether it always works that way it's another issue entirely because some governments use that kind of thing as an excuse to not do anything are you ever going to extradite your national for that thing that happened here oh yes yes we've spent the last five years looking at that case the Russian diplomats who are diplomats who was drunk driving an auto law killed that woman I think eventually there was a trial it was a long time so in law no problem well ok yeah one more I was wondering something slightly different and this had to do more with deportation there have been cases in the US and also in Canada where people are being deported to the birthplace of their parent and so I know different countries that are having problems with criminals from the US who are being dumped on the shore in the US who are then creating more violent situations in the country do the countries have any reports where someone's been like may actually be jacked the person from the company if Canada decided to dump someone in other Jamaica or wherever is there any way to prevent that search? immigration is not really my thing but there are things that some governments will do to prevent unwanted individuals from coming back but under most countries laws it's very difficult to exclude your citizen if they are your citizen and that often citizenship extends to the children of citizens so they may find ways to make the individuals life difficult and sometimes states will get into dialogues but look don't send that guy here keep that guy and there are deals made because that happens all the time but I think what you're describing is a problem it's a problem on the flip side as well I know there's people from Caribbean countries who came to Canada when they were very young get into scrapes with the law never got any kind of solid Canadian immigration status and are deported back to Jamaica back to Bermuda where they've never been where they don't know anyone and where it's dangerous for them and immigration law as well I know they're dealing with it all the time Thank you very much I'd be happy to talk to anybody afterwards but thank you for coming tonight