2011-04-15 Extradition and Canada's Sovereignty: The Prince of Pot and more

Vancouver native Marc Emery, was today denied a transfer to Canada to serve the final four years of his five year sentence. Emery's lawyer Kirk Tousaw said US authorities told his client that the US government refused his transfer on April 6 despite a recommendation from his sentencing judge that he be transferred and despite his meeting all the requirements, due to the “seriousness of the offence” and “law enforcement concerns.”

Marc's serious offense is selling marijuana seeds by mail to the US, a serious offense on the US side of the border, where the law equates one marijuana seed to one plant to 100 kilos of marijuana, but almost never prosecuted in Canada where seed shops are common, and the last conviction was against Emery in 1998 when he was fined $2,000. In fact on Wednesday, an Ontario court struck down Canada's laws that prohibit the possession and growing of marijuana as unconstitutional. The judge suspended his ruling for three months, to give the federal government time to appeal or respond; if they are unsuccessful, marijuana will be legal to possess and cultivate in Ontario in three months, which will set precedent for all of the other provinces. That would explain why the US has "law enforcement concerns," as Emery in Canada would have no chance of being in jail, much less serving repeated solitary confinement. According to the US - Canada Extradition Treaty, extradition applies only in cases where the “offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.”

Extradition is also not permitted on political grounds. The US DEA’s office described his arrest: “Today’s arrest of Mark Scott Emery, publisher of Cannabis Culture Magazine and founder of a marijuana legalization group, is a significant blow, not only to the marijuana trafficking trade in the United States and Canada, but also to the marijuana legalization movement. Hundreds of thousands of dollars of Emery’s illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canada. Drug legalization lobbyists have one less pot of money to rely on.” The entire document described Marc’s political activity, not his seed selling. It is illegal in Canada to extradite a person for political activity, and yet Marc was extradited.

“This refusal is a terrible affront to the sovereignty of Canada,” Tousaw said. “Marc is a target of political persecution that appears to have transcended his conviction and now infects the treaty transfer process. He qualifies under every relevant factor and should have been allowed to serve out his jail term in Canada, close to his wife Jodie and in the country in which all of his activity took place. We call upon Prime Minister (Stephen) Harper and the leaders of the Liberal Party and NDP to stand up for this."

But actually the terrible affront to Canadian sovereignty began long before this refusal or Marc's extradition. Extradition between the US and Canada was changed in 1999 to allow simply a request from a prosecutor to enable extradition from Canada to the US, while still requiring the full legal process in reverse. Vancouver extradition lawyer Gary Botting says, “The new Act effectively reduces extradition in Canada from a traditionally judicial process (as it remains in the United States) to an essentially administrative process.”

According to Botting, the Canada US Extradition Treaty has never been ratified and is not, in his opinion, even legal. Whether it is, or is not, there is still far more room for due diligence to be demanded in the extradition requests from the US. Requests which do not meet the dual criminality requirement, which would not be prosecuted in Canada, need to be refused (this would obviously include all Canadians operating in Canada, see contrary examples here.). The Canadian government needs to demand at all times that the death penalty not be imposed, in accordance with the UN’s resolution. When Canadians are tried and sentenced in the US, the Canadian government needs to start meeting their responsibilities to bring prisoners home to serve their sentences.

The refusal of Emery's transfer raises concerns for other Canadians expecting transfer home as well. Omar Khadr certainly meets both the “seriousness of the offence” and “law enforcement concerns,” since he was tried for murder and it is unlikely that Canadians will be sympathetic to further harsh treatment of a man arrested as a child, who will have spent nine years in US torture camps, eight without a trial, and ended with a conviction in what was widely referred to as a political show trial at Guantanamo. Khadr's first year will be up at the end of October.

Canada is having another election on May 2, after opposition MPs voted 156-145 in favour of a motion finding Prime Minister Stephen Harper in contempt of Parliament and expressing non-confidence in the government. The current governing party was created in 2003 from a coalition of the right wing and ultra right wing parties in Canada, while the opposition is made up of several diverse left leaning parties and the separatist party of Quebec. The political situation has caused repeated elections, in 2004, 2006, 2008, and 2011, as the left and the separatists are able to keep the right in a minority position but not gain power themselves. Voter turnout has plummeted, leading to a 58.8% turnout in 2008, caused possibly in part by voter ennui, but also a sense that the important issues (extradition to the US among them) would be no different with either of the leading parties. Canada has refused to seek extradition or repatriation of Khadr under two Liberal prime ministers as well as the current Conservative one.