The British Columbia Court of Appeal recently issued its decision in Graham v. Canada (Minister of Justice), yet another step in the long-running story of the mysterious and tragic death of Anna Mae (Pictou) Aquash, an Indigenous Canadian woman who was murdered in South Dakota in 1975. It is a significant development in Canadian extradition case law, but also reflects the unfairness towards individuals sought for extradition that hides around so many corners in Canada's law and practice. It also highlights, yet again, the aggressive approach of Canada's International Assistance Group (IAG) in conducting extradition proceedings.
Graham is one of the very few Canadian decisions concerned with the "principle of specialty" (or "speciality") in extradition law (see Chapter 9 of our book). Specialty is a nearly ubiquitous feature of extradition treaties, providing that the requesting state may only prosecute the person sought for the offence(s) for which they were extradited. It is not unusual for treaties to also provide that the requested state may waive the protection of specialty, upon the request of the requesting state, and while not ordinary course such waivers are not unheard of. Specialty and waiver thereof feature in the Canada-US extradition treaty.
So far as I know, state practice is very uneven regarding whether the person sought gets any notification of, or input into, a requested state's decision to waive specialty (they do in the US). That is precisely the issue that arose in this case.
Graham was suspected to have murdered Aquash (he has always maintained his innocence), and along with another he was charged federally in the US for the murder ("federally" is underlined for reasons which will become clear). His extradition was requested in 2004 and he was surrendered in 2007 by then-Minister of Justice, Vic Teows. In the US, however, the prosecution foundered; the federal murder indictment was quashed and re-issued a number of times, and it eventually became clear that Graham could not be prosecuted federally because the murder had happened on land over which US indigenous people had jurisdiction, and because neither Graham nor Aquash was an "American Indian" (the legal term of the day).
In 2009 Graham was indicted under South Dakota's criminal law (i.e. state law), for inter alia two counts of felony murder (i.e., murder committed while engaged in committing a felony). This clearly implicated the obligation of specialty, and the US government formally requested that Canada waive the operation of the rule.
Now, this is where the disturbing part begins. Felony murder is not a crime in Canada; it was struck down by our courts, under the Charter, decades ago. Under the principle of double criminality, therefore, Canada cannot lawfully extradite people to face charges of felony murder in any state. Simply on this basis alone, if Graham's extradition had initially been sought on the South Dakota charges, it should have been denied. Moreover, felony murder in the US carries a sentence of life without parole. While some Canadian courts have permitted extradition to the US to face this sentence, this has been controversial -- the sentence is viewed as abhorrent in Canada and we do not have a comparable penalty.
Faced with this, then-Justice Minister Rob Nicholson, acting on the advice of IAG, agreed to waive specialty -- without notifying Graham, nor giving him the opportunity to make submissions. As the state prosecution was gearing up, it became apparent to Graham's US counsel that the waiver must have been provided, and an application was made to obtain a copy; this application was blocked at nearly every turn, in part due to Canada's insistence that it was a private diplomatic communication between two states and therefore privileged. A closed hearing eventually determined that the waiver had been granted.
During the trial in late 2010, Graham's Canadian counsel wrote to Minister Nicholson asking him to intercede and ask the US government to prevent Graham's trial from continuing. It appears the Minister did nothing, and Graham was convicted several days later. For some reason, the IAG refused even to answer the question of whether waiver had been granted. Over the next several years he appealed his conviction on several bases, including that (as a matter of habeas corpus) the entire process was unlawful because Canada's waiver of specialty had itself been unlawful. He could not interest the American appeal courts in this argument.
In 2019 Graham's counsel brought an application to the BCCA for judicial review (JR) of the Minister's decision to grant the waiver, and to quash it. At this point, acting less aggressively than usual, the IAG voluntarily provided some disclosure, but refused to disclose their advice to the Minister regarding the waiver. The court eventually ordered IAG to disclose a redacted version.
Prior to the hearing of the JR the IAG offered to have the Minister re-consider the waiver decision, giving Graham the chance to make submissions. Graham declined, seemingly because he was ultimately seeking to have the court overturn the decision. On the JR, the IAG turned around and argued that because it had offered the reconsideration, the JR was moot, noting also (to be fair) that the Minister's policy has changed and IAG will now provide notice and the chance to make submissions to any individual who would be the subject of a waiver.
Writing for the court, Frankel JA held that the JR was not moot because Graham was seeking a range of relief, and reconsideration was not even the primary ground; plus the court would have exercised its discretion to hear the case in any event, since it "raises an important legal question, namely, whether the principles of procedural fairness require that persons in respect of whom a waiver of specialty is sought have participatory rights in that decision-making process similar to those they have in regard to the decision to surrender."
Graham argued that there were a number of points upon which submissions could and should have been made, had he had notice of the waiver, namely:
"(a) the propriety of allowing him to be prosecuted for felony murder when felony (i.e., constructive) murder has been held unconstitutional in Canada; (b) the delay by the United States in making the request; (c) his Indigenous status and the honour of the Crown in dealing with Indigenous peoples; (d) the fact that the state murder charges carry a mandatory sentence of life imprisonment without possibility of parole; and (e) his rights under several provisions of the Charter."
In its factum the IAG had argued that it was reasonable for Minister Nicholson to have made the decision without notice to Graham (on what basis, I can't imagine; I may track down the factum and read it, for entertainment value if nothing else). However, after Graham finished arguing at the hearing, the IAG reversed this position and conceded the point, accepting that:
"procedural fairness requires that a person in respect of whom a waiver is sought is entitled to: (a) notice of the request; (b) an opportunity to make submissions to the Minister; (c) disclosure of the material provided to the Minister except those portions protected by solicitor-client privilege; (d) reasons from the Minister; and (e) a copy of those reasons. Put otherwise, the Minister accepted that the duty of fairness owed with respect to a waiver decision is equivalent to that owed with respect to a surrender decision."
The Court of Appeal had no problem agreeing that this was a correct statement of law:
"In my view, the Minister’s ultimate position is the legally correct one; it is in accord with the law set out in Baker and Vavilov: see also May v. Ferndale Institution, 2005 SCC 82 at paras. 92, 94, [2005] 3 S.C.R. 809. A waiver of specialty significantly affects the rights of the person in respect of whom it is sought. If a waiver is consented to, then that person can be prosecuted for offences other than those for which they were surrendered and, in some cases, will be liable to punishment greater than that which can be imposed for the offences for which they were surrendered."
IAG also argued that there had been no prejudice in denying Graham procedural fairness, because any submissions he would have made would not have changed the outcome, but later resiled from that position as well. Rightly so, as in my view this was a specious argument (see below).
The court dismissed Graham's argument that the entire case had abused the process of Canada's courts, holding that while there were obvious problems it did not rise to the high threshold required to find abuse of process. Graham also argued that "a prima facie case for conviction on proposed new or different charges must be established through a meaningful judicial process before a waiver of specialty can be granted" and thus that "there must be a form of committal hearing with respect to the offence(s) for which a waiver is requested." Frankel JA seemed to find this argument interesting, but as it had not been developed it was left for another day, also refusing to award other forms of relief Graham had requested. In the end, the waiver decision was vacated and the matter was remitted to the Minister for reconsideration.
The key takeaway from this decision is that the principle of specialty is not simply a matter of high-level give and take between states. It has significant implications for the liberty and procedural rights of the individual who is sought and/or extradited. Therefore, the individual must be given notification and allowed to make submissions. This is a significant development; historically, states have tried to maintain inter-state criminal cooperation and human rights protections in separate silos, and every victory for basic human rights is hard-fought. While specialty is a treaty provision and begins purely as an obligation between states, its exercise by domestic governmental actors must be in accordance with domestic (and international human rights law) procedural protections. Simply put, administrative law norms, informed and backstopped by the Charter, apply to specialty. Other states may find this decision informative.
For Graham himself, this is a positive step on what is still an uncertain path. It seems inevitable that the Minister will have to decide that the waiver was not available. This is because the basic requirement of double criminality was never made out -- felony murder is not a crime in Canadian law and therefore the waiver should never have been given and Graham should never have been prosecuted. Full stop. And that is quite apart from the constitutionally-suspect way the case was handled given Graham's s. 35 right as an indigenous person, and the "life without parole" issue.
However, he was extradited, and was convicted. If specialty should not have been waived, he should not have been extradited -- but what is the remedy? Graham may use the decision to renew his habeas corpus application in the US (i.e. the prosecution was never legal because the basis upon which he was apprehended was illegal); but the fate of this route is uncertain, particularly as US courts have historically held that unlawful process in apprehension does not deprive the courts of jurisdiction (under the maxim male captus, bene detentus -- see Chapter 9 of our book). It seems logical that Canada would have to ask that he be repatriated as a remedy, but the courts are leery of ordering the government to do anything, particularly if it touches on the federal prerogative over foreign affairs (see Canada v. Khadr, 2010 SCC 3).
While I never hesitate to criticize IAG for the aggressive manner in which it conducts litigation, in this case they properly conceded that waiver of specialty requires procedural fairness, and now have a policy in place to that effect. A salutary effect of the court's decision is that (barring an SCC appeal) it is settled that this "policy" is actually a legal requirement.
However, there are troubling unanswered questions. Why was IAG so eager to grant a waiver of specialty that would see Graham tried for something that, again, is not a crime in Canada? Why did they so blithely deprive him of notice of the waiver, tanking one of his defences at his trial in the US, and continually refuse even to acknowledge that the waiver had been granted? Why did they needlessly refuse to disclose the waiver communication, even in redacted form? Why did they argue mootness? Why did they wait until mid-way through the JR hearing to concede the obvious point that procedural fairness was required by law? Canada's extradition law is supposed to be protective of the rights of the persons sought; surely those charged with administering it should bear that in mind.
As my friend and colleague, Prof. Sharry Aiken, commented in a recent media story, "It is shocking [that] at the highest level of government the minister was not observing the basic principles of procedural fairness." There is much that needs to be changed in our extradition laws. If you're interested in that topic, please have a look at the The Halifax Colloquium's Proposals for Extradition Law Reform.
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