On 31 January 2014, the British Columbia Court of Appeal released an interesting decision in the extradition case of United States of America v. Lopez-Turatiz. Lopez-Turatiz was sought by prosecutors in Nevada on a first-degree murder charge. He challenged the Minister of Justice's decision to surrender him because, based on an opinion from a Nevada criminal lawyer, it was clear that Nevada could prosecute for murder under the "felony murder rule." In Canada this is called "constructive murder" and it was ruled to be an unconstitutional mode of criminal liability in decisions of the Supreme Court of Canada dating back to the late 80s and early 90s.
The Court of Appeal agreed with the Minister that this wasn't a problem here. Why? First, Lopez-Turatiz wasn't charged with felony murder, but rather first-degree murder. The Nevada prosecutor had indicated that he wasn't planning to charge Lopez-Turatiz with felony murder. And in the Minister's view, if Nevada for some reason decided to amend the indictment to include a felony murder charge (which the court found was a "remote" possibility), they would have to seek Canada's permission to do so; otherwise the US would be violating the rule of "specialty" under the extradition treaty, which states that individuals can only be tried for the offences for which they are surrendered.
So, no problem, right? I see two problems. First, Lopez-Turatiz argued that Nevada would not necessarily seek permission if they wanted to add the felony murder indictment, as the US might very well disagree that the specialty rule was even engaged. If the US did disagree, he implicitly argued, it would be too late for him because he would already be in Nevada. The Court of Appeal stated it was unnecessary to decide the point, because of the remoteness of the issue and because it wasn't fully argued. The Court did pointedly state at the end of its judgment: "Notwithstanding the possibility of the prosecutor seeking to rely on the felony murder rule is remote, I would expect that on Mr. Lopez’s surrender, the current Minister, the Honourable Peter MacKay, will inform the United States of Canada’s position on the rule of specialty, as expressed by [former] Minister Nicholson." Well, the Minister might or might not decide to do that, and this seems to be a bit uncertain an approach to take to the liberty of an individual. Not to mention that, as the second Omar Khadr case demonstrates, if the federal government doesn't want to make representations to a foreign government about something, it's extremely difficult to get them to do it -- and this is especially true in extradition matters.
Second, the really chilling point for me is a statement buried in the Court's review of the Crown's argument: "The Minister's position is that it is open to him to surrender a person to be tried for felony murder" (para. 52). So, really, the whole specialty argument doesn't matter, because the Minister is perfectly prepared to extradite someone to face a felony murder charge, even though we don't do it here. And recall why it is that we don't try people for constructive/felony murder: because the Supreme Court of Canada ruled that to do so would be inconsistent with the principles of fundamental justice (s. 7 of the Charter) and would not be a limitation that could be demonstrably justified in a free and democratic society (s. 1 of the Charter).
But somehow it's okay if we extradite someone to face a criminal process that allows this to happen? This isn't just what Justice La Forest some years ago called "finicky evaluations" of a foreign state's criminal law in comparison to ours. This is an argument by the Minister of Justice that it is acceptable to pack someone off to be tried under a process that's not just different from ours, but which our Court has ruled would breach that individual's human rights if we did it ourselves. Which is ridiculous by itself, and even more so because it is perfectly open to the Minister to simply seek an assurance that the felony murder rule won't be used. That is ordinary course diplomacy that wouldn't disrupt our extradition relationship with the US at all.
How astonishing. Lopez-Turatiz's counsel quite properly raised the SCC's 2001 decision in USA v. Burns, which in my view governs this situation. If it would breach s. 7 to do it here, we can't extradite someone to a state where it could happen to them. Full stop. One wonders why the Crown advanced this argument at all, even if it was a non-issue in this case; is an attack on the Burns precedent imminent?