I'm very pleased to have, as my first guest blogger, Dr. Gary Botting, J.D., LL.M., Ph.D. (Law). Gary is a Vancouver-based expert extradition lawyer who has published a number of excellent books and articles on Canadian extradition law, including the biennial Canadian Extradition Law Practice, published by LexisNexis. You can find out more about Gary here.
As will be the case with all guest blogs here, Gary's views are his own and publication of them does not necessarily imply that I endorse or agree with them (though it is entirely possible that I do).
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CANADA'S NON-RATIFICATION OF EXTRADITION TREATIES
Although Canada is a nominal parliamentary democracy, when it comes to extradition the government could not be more dictatorial in its adoption and enforcement of treaties. The Vienna Convention on Treaties requires that all international treaties be ratified; however, none of Canada’s current extradition treaties has been ratified by the Parliament of Canada, or by any parliamentary committee, or even by the Privy Council, despite representations to the contrary to each of its extradition partners.
For example, in 1971, the Privy Council directed Secretary of State for External Affairs Mitchell Sharp to sign the draft Canada-U.S. extradition treaty “subject to ratification”. The essence of this order is contained in Article 18(1) of the Treaty: “This Treaty shall be ratified and the instruments of ratification shall be exchanged at Ottawa as soon as possible.” Five years later, after the U.S. Senate formally debated and eventually ratified the signed Treaty, Mr. Sharp’s successor, Allan MacEachen, without the endorsement of any governmental body, produced a four-line “instrument of ratification” and signed an accompanying document which stated that the Government of Canada “hereby ratifies” the treaty.[1]
Similarly, Secretary of State for External Affairs Joe Clark was authorized by the Governor in Council to sign the Canada-Germany extradition treaty “subject to ratification.” Following MacEachen’s lead, Clark’s successor, Flora MacDonald, purported to endorse the treaty without even attempting to consult Parliament about its ratification.[2] The Canadian approach is quite different from that of the United Kingdom, where the 2002 extradition treaty between Britain and the United States (for example) “was ratified by Parliament and is, therefore, the law of the land.”[3]
Despite this lack of ratification, Canada deems its “extradition partners” to be as good as their word in terms of meeting “the standards necessary for trial.”[4] Solely on the basis of having concluded an extradition treaty with the United States, for example, “Canada has already evaluated the likelihood that prosecution in the United States would proceed on reliable evidence.”[5] Accordingly, Canadian courts have stated that extradition judges must honour extradition treaties, and must not enquire about the fairness of the underlying judicial systems of extradition partners; for Canada is deemed to have already made the “fairness” assessment in the very act of concluding the treaty. A perennial “favourite case” of courts of appeal in this regard, Canada v. Schmidt,[6] stands for the proposition (inter alia) that Canadian courts trust the courts in the foreign country to give the fugitive a fair trial – or as Marrocco J. put it in Israel v. Mattar, where Canada enters into an extradition treaty “it is conclusively presumed that the general system for the administration of justice…sufficiently corresponds to our own concepts of justice to warrant the forcible removal of persons in Canada … for criminal prosecution.”[7]
To justify following the unratified treaties, the courts must fall back on a grandfather clause contained in section 8(3) of the Extradition Act: “Agreements and provisions published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.” This section in effect enforces acceptance of the judicial fiction that the treaties were properly ratified in the first place. The provision effectively puts considerations of a treaty’s bona fides beyond the reach of the courts, including courts of appeal. Thus Finch C.J.B.C. remarked with respect to extradition treaties that they “are part of the Crown’s Prerogative powers”:
[23] …It appears that the question of a treaty’s validity is purely political, and that there is no legal component in these circumstances that would warrant the court’s interference.
[24] Our courts are sometimes asked to interpret a treaty’s provisions and determine its domestic effect; that task, involving legal questions, is within the judiciary’s expertise. A treaty’s existence, however, is not an ordinary question of law but a highly political matter as between the executive of two contracting states….
[25] If a treaty’s existence is called into question by one of the contracting parties, that dispute might be for resolution at the political level, or failing that, in some other forum. The existence of a treaty, however, cannot be for adjudication in a domestic court, in a dispute between an individual and one of the contracting states. Such a process might have untold political and diplomatic consequences, well beyond the issue of whether one individual should be extradited. A ruling on a treaty’s existence or validity could not properly be made in the absence of both parties to it.
[24] As the Treaty’s existence is not a justiciable issue in our Courts it is not open to use to review the Minister’s determination that the Treaty validly exists and applies to the appellant. It is therefore not appropriate to address the … issue.[8]
The attitude of the Minister of Justice, endorsed as “reasonable” by the British Columbia court of Appeal, was stated clearly in Hungary v. Dascalu,[9] where he said in his surrender decision, “The fact that Canada maintains a treaty relationship with Hungary is evidence that the executive have determined that Hungary is an appropriate and trustworthy extradition partner for Canada.”[10] That Treaty, initially concluded between Great Britain and Austria (later “Austria-Hungary”) was signed in 1873, entered into force in 1874 and except for a minor amendment in 1902 has not be changed since.[11]
Canada has a new policy in place with respect to the tabling of treaties in Parliament, but the government has yet to apply it in the extradition context – even with respect to its newest extradition treaty, with Italy, which came into force in November, 2010. Even though once again it was required to be ratified by virtue of Article XXII, the draft Canada-Italy treaty was not taken before Parliament or any other governmental body for ratification. It, like all the other Canadian extradition treaties before it, remains unratified.
Footnotes
[1] “Instrument of Ratification” signed by Allan J. MacEachen, Secretary of State for External Affairs, Ottawa, 2 February 1976. See James Munson, “US extradition treaty never ratified by Parliament: lawyer,” Yukon News, Wednesday, 6 May 2010.
[2] See “Uh, Germany? Remember that extradition treaty we thought we had?” Macleans, Wednesday, 3 June 2009, http://www2.macleans.ca/2009/06/03/uh-germany-remember-that-extradition-treaty-we-thought-we-had/.
[3] “Extradition: A bad and unfair treaty,” and “Telegraph View: Our extradition treaty with the US is one-sided,” The Telegraph, 16 July 2009 (http://www.telegraph.co.uk/comment/telegraph-view/5845465 /Extradition-A-bad-and-unfair-treaty.html#disqus_thread).
[4] United States of America v. Ferras, [2006] S.C.J. No. 33, 2006 SCC 33, para. 66.
[5] Ibid.
[6] Canada v. Schmidt, [1987] S.C.J. No. 24, [1987] 1 S.C.R. 500, (sub nom. Schmidt v. The Queen) 33 C.C.C. (3d) 193 (S.C.C.).
[7] Israel v. Mattar, [2009] O.J. No. 527 (Ont. S.C.J.) at para. 1.
[8] Ganis v. Canada (Minister of Justice) [2006] B.C.J. No. 3139, 233 B.C.A.C. 243, 216 C.C.C. (3d) 337 (B.C.C.A.), leave to appeal to S.C.C. refused (sub nom. Czech Republic v. Ganis) [2007] S.C.C.A. No. 111 (S.C.C.)
[9] [2009] B.C.J. No. 702, 268 B.C.A.C. 175, 244 C.C.C. (3d) 98 (B.C.C.A.).
[10] Ibid. at para. 27.
[11] The 1902 amendment extended to one month the two-week period that a person could be held on a provisional warrant before a requisition of extradition was received.
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