Canadian Demands for Moratorium on Extradition to U.S.

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2010

Canadian Demands for Moratorium on Extradition to U.S.

written by Press Release

B.C. Lawyer Demands Moratorium

on Extradition to U.S.
by Gary Botting
A British Columbia lawyer has asked Federal Minister of Justice Rob Nicholson to impose a moratorium on removing anyone from Canada to the United States until the legality of the Canada-U.S. Extradition Treaty can be determined by the courts, since it was never ratified.

In submissions to the Minister in the extradition case of Clifford Edwards, wanted by the United States for alleged telephone fraud, lawyer and legal scholar Gary Botting said there is no record of any ratification by Order in Council or the Governor General in Council or the Privy Council or Parliament or the Senate “or any other body of government.”

The author of several books on extradition law including Extradition between Canada and the United States and Canadian Extradition Law Practice, Botting said that in 1971 the Privy Council gave permission to former Secretary of State for External Affairs Mitchell Sharp to sign the treaty “subject to ratification” - a condition that is spelled out in Article 18 of the treaty.

Mr. Sharp signed the treaty on 3 December 1971. However no further steps were taken to ratify it, the lawyer said.

A later Secretary of State, Allan J. MacEachen, signed a “Protocol of Exchange” on 22 March 1976 stating that instruments of ratification had been “carefully compared and found to be in due form.” However, Dr. Botting contends that Canada did not actually ratify the treaty. “At best, it was simply signed by Mr. MacEachen without formal ratification.

“It may have been in ‘due’ form, but it was not in good form,” Botting said. “The fact is, Mr. MacEachen – with or without the encouragement of then Prime Minister Pierre Elliott Trudeau – took a shortcut. That shortcut is fatal to the Treaty.”

Mr. MacEachen should have known better, because the precondition was imposed while he himself was President of the Privy Council, said Botting. Canada’s representation to the United States by MacEachen that the unratified Treaty had been ratified “was and remains a violation of the Vienna Treaty on Treaties and therefore a violation of international law,” he said.

“I have a great deal of respect for Mr. MacEachen and the contributions he made during his 43 years in Parliament and as President of the Privy Council,” he added, “but in this case he bypassed both Parliament and the Privy Council.”

In a response to Dr. Botting’s earlier submissions, the Department of Justice stated in a letter dated 23 April, “DFAIT (Department of Foreign Affairs and International Trade) officials have advised that the Canadian Instrument of Ratification which was exchanged pursuant to the protocol is now in the possession of the United States.”

The lawyer said DFAIT’s position supports his own research findings that there was no such document in Ottawa. “But it explains little else. I have searched for an instrument of ratification not only in the National Archives in Ottawa and the DFAIT Library, but also in the U.S. National Archives in Washington, D.C. – to no avail,” he said in his letter to the Minister dated Monday.

He asked the Minister to request the United States to provide the Canadian government with a copy of the missing document – if indeed it exists. “If the Treaty was properly ratified by Canada, what has the United States got to lose by this disclosure? If, on the other hand, the Treaty was not properly ratified by Canada, the United States should not be allowed to hide this fact to its advantage – and to the disadvantage of Canadians facing extradition to the United States.”

Dr. Botting asked the Minister, “With what are the ‘respective Instruments of Ratification’ being ‘carefully compared’ in the Protocol of 1976? Surely not with each other? Perhaps the purported ratifications were made in duplicate? If so, why does Canada not have a copy?”

Canada would have kept a copy of such an important document, if it existed – unless it was a diplomatic embarrassment, he said. But if it were found, “at best, it would show that in 1976, a Secretary of State for External Affairs took it upon himself to ‘ratify’ a treaty that a former Secretary of State for External Affairs had been told he could sign only subject to ratification.” It took five years obtain formal ratification of the treaty by the U.S. Senate, Botting added.

“Canada is a parliamentary democracy,” he said. “A Minister of the Crown, including the Secretary of State for External Affairs, does not have the power to ratify treaties of his or her own initiative – especially when that power has been specifically curtailed by the Privy Council.

“Since the days of Oliver Cromwell, Parliament and the courts have been charged with ensuring that such arbitrary exercise of power on the part of a Minister – even a Prime Minister – does not occur. “If it does, and the fruit of the poisoned tree is at last discovered, the courts are obliged to rule that the poisoned fruit – in this case the unratified Canada-U.S. Treaty – is invalid.”

Botting requested the Minister of Justice to ask the United States to supply the Government of Canada with a copy of the missing Canadian instrument of ratification “which DFAIT now implies is only in the possession of the United States,” and for the Minister to provide the lawyer with a copy. He also asked the Minister to direct the Department of Justice, DFAIT and the National Archives to conduct a diligent search for any Order in Council or other Order that formally ratifies the Treaty – “in effect duplicating my own research.”

Finally, he asked that the Minister immediately refrain from removing anyone from Canada to the United States under the Canada-U.S. Extradition Treaty until the matter of the legality of the treaty is finally determined by the appropriate Court.

“In effect, what is demanded is an ethical, self-imposed moratorium on extradition from Canada to the United States.”

PRESS RELEASE

For release on Monday, 3 May 2010 at 12 noon EST (9 a.m. PST)
Further details are obtainable from the office of

3 May 2010

VIA FAX 1-613-990-7255
The Honourable Rob Nicholson, P.C., Q.C.
Minister of Justice and Attorney General of Canada
Department of Justice
284 Wellington Street, Room 2274
Ottawa, ON K1A 0H8

Dear Mr. Minister:

Re: United States of America v. Edwards: Further Submissions

For reasons that follow, I ask that you immediately impose a moratorium on removing anyone from Canada to the United States pursuant to the Treaty on Extradition between the Government of Canada and the Government of the United States (Canada-U.S. Treaty) until the matter of the legality of the Treaty is finally determined by the appropriate Court. In support of this request, I wish to make further submissions with respect to the non-ratification of the Canada-U.S. Treaty, since the “Protocol of Exchange” of 1976 (attached to Mr. Johnson’s Summary as Appendix 1) is the very document alluded to in my original Submissions that causes the most offence.

The “Protocol of Exchange” states that the “Instruments of Ratification of the aforesaid Treaty” had been “carefully compared and found to be in due form.” However, it is my contention that the purported Canadian “instrument of ratification” was not by any means in good form since at best it was simply signed without formal ratification by the then Secretary of State for External Affairs Allan J. MacEachen. There is no record of any ratification by Order in Council or the Governor General in Council or the Privy Council or Parliament or the Senate or any other body of government. The fact is, Mr. MacEachen – with or without the encouragement of Prime Minister Pierre Elliott Trudeau – took a shortcut. That shortcut is fatal to the Treaty.

Mr. MacEachen’s representation in the Protocol of Exchange ignored a precondition imposed by the Privy Council, and violated Article 18 of the original signed draft of the Canada-U.S. agreement. Furthermore, as I have already submitted, Canada’s representation to the United States that the unratified Treaty had been ratified was and remains a violation of the Vienna Treaty on Treaties and therefore a violation of international law.

In the fall of 1971, the Privy Council (of which Mr. MacEachen was then President) by Order in Council gave permission to then Secretary of State Mitchell Sharp to sign the draft Canada-U.S. Treaty “subject to ratification.” Mr. Sharp duly signed the Treaty on 3 December 1971.

Article 18(1) of the signed Treaty stated, “This Treaty shall be ratified and the instruments of ratification shall be exchanged at Ottawa as soon as possible.” No ratification occurred before an Exchange of Notes revising the signed Treaty took place in June and July of 1974. At that time, Mitchell Sharp remained Secretary of State for External Affairs.

In signing a document purporting to be an instrument of ratification, Secretary of State MacEachen by-passed both Parliament and the Privy Council. Perhaps he had confused his roles, for according to Parliamentary Records he was:

President of the Privy Council    1976.09.14 - 1979.06.03
Secretary of State for External Affairs    1974.08.08 - 1976.09.13
President of the Privy Council    1970.09.24 - 1974.08.07

Curiously, “DFAIT officials have advised that the Canadian Instrument of Ratification which was exchanged pursuant to the protocol is now in the possession of the United States” (page 22 of Mr. Johnson’s Summary). I have searched for this document not only in the National Archives in Ottawa and the DFAIT Library (with the assistance of staff) but also in the U.S. National Archives and Records Administration at Washington D.C. and College Park, MD – to no avail.

I would ask that you request the United States to provide you with a copy of the Canadian Instrument of Ratification. If the Treaty was properly ratified by Canada, what has the United Sates got to lose by this disclosure? If, on the other hand, the Treaty was not properly ratified by Canada, the United States – according to DFAIT the only repository of the Canadian Instrument – should not be allowed to hide this fact to its advantage and to the disadvantage of Canadians facing extradition to the United States.

Further, with what are the “respective Instruments of Ratification” being “carefully compared” in the Protocol of 1976? Surely not with each other! Perhaps the purported ratifications were made in duplicate? If so, why does Canada not have a copy? Indeed, Canada would have kept a copy of such an important document, if it existed, or if it was not a diplomatic embarrassment. It would show that in 1976 a Secretary of State for External Affairs took it upon himself to “ratify” a treaty that a former Secretary of State for External Affairs had been told he could sign only “subject to ratification.” Indeed, it took the United States five years obtain ratification of this same Treaty by the U.S. Senate.

Canada is a parliamentary democracy. A Minister of the Crown, including the Secretary of State for External Affairs, does not have the power to ratify treaties of his or her own initiative – especially when that power has been specifically curtailed by the Privy Council by the precondition that a Treaty may be signed by the Secretary of State “subject to ratification.”

Since the days of Oliver Cromwell, Parliament and the Courts have been charged with determining that such arbitrary exercise of power on the part of a Minister – even a Prime Minister – does not occur. If it does, and the fruit of the poisoned tree is at last discovered, the Courts are obliged to rule that the poisoned fruit (in this case the unratified Canada-U.S. Treaty) – is ultra vires and invalid.

I would accordingly make four requests of you:

1. That you ask the United States to supply the Government of Canada, and you, with a copy of the “Canadian Instrument of Ratification,” which DFAIT now implies is only “in the possession of the United States” (page 22 of Mr. Johnson’s letter).

2. Assuming that the United States is able to comply with this request, that you or your staff disclose to me, on behalf of my client, a copy of the purported Canadian Instrument of Ratification.

3. That you direct the Department of Justice, DFAIT and the National Archives to conduct a diligent search for any Order in Council or other Order that formally ratifies the Treaty – in effect duplicating my own research.

4. That in the meantime you refrain from removing anyone from Canada to the United States pursuant to the Canada-U.S. Treaty until the matter of the legality of the Treaty is finally determined by the appropriate Court. In effect, what is demanded is an ethical, self-imposed moratorium on extradition from Canada to the United States.

Sincerely,

Gary Botting

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