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Extradition and human rights.



Along with two others, Marc Emery Marc Scott Emery (born February 13, 1958) is a Canadian cannabis activist. He is the publisher of Cannabis Culture magazine. He also ran for mayor of the city of Vancouver in 1996 and 2002 and came in fifth the second time. , a prominent pro-marijuana activist, faces extradition to the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  because of allegedly selling marijuana seeds over the Internet to Americans. A US Federal Grand Jury indicted INDICTED, practice. When a man is accused by a bill of indictment preferred by a grand jury, he is said to be indicted.  Emery on conspiracy to distribute marijuana seeds, conspiracy to distribute marijuana, and conspiracy to engage in money laundering The process of taking the proceeds of criminal activity and making them appear legal.

Laundering allows criminals to transform illegally obtained gain into seemingly legitimate funds.
 (Rod Mickleburgh, "Pot Activist Faces Extradition" 30 July 2005 Globe and Mail). If Emery is convicted in the US, he faces a minimum prison term of 10 years to a maximum of life. Some Canadians have expressed concern that extraditing these individuals would violate their rights under the Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms (also known as The Charter of Rights and Freedoms or simply The Charter) is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982.  (Charter), because US criminal penalties for breaking marijuana laws tend to be much stricter than those of Canada. What are some of the human rights implications of extradition to another country that may have more stringent laws or penalties?

Extradition is generally regarded as different than deportation. While both may result in the removal of a person from a country, deportation is an immigration immigration, entrance of a person (an alien) into a new country for the purpose of establishing permanent residence. Motives for immigration, like those for migration generally, are often economic, although religious or political factors may be very important.  process. Extradition involves the surrender by one country of a person who is alleged to have engaged in criminal conduct in another country. While deportation generally applies to non-citizens, both Canadian citizens and non-citizens can be extradited. The rights of a person subject to extradition are governed by the Extradition Treaty (in this case, the Extradition Treaty Between Canada and the United States The United States and Canada share a unique legal relationship. U.S. law looks northward with a mixture of optimism and cooperation, viewing Canada as an integral part of U.S. economic and environmental policy.  of America, Can. T.S. 1976, No. 3), the Extradition Act (S.C. 1999, c. 18), the Charter, international law and international relations international relations, study of the relations among states and other political and economic units in the international system. Particular areas of study within the field of international relations include diplomacy and diplomatic history, international law, . Canada has signed and ratified a number of international treaties that are relevant to extradition. For example, Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [1987 Can. T.S. Res. No 36] provides that a State must not extradite ex·tra·dite  
v. ex·tra·dit·ed, ex·tra·dit·ing, ex·tra·dites

v.tr.
1. To give up or deliver (a fugitive, for example) to the legal jurisdiction of another government or authority.

2.
 a person to another State where there are substantial grounds the person would be subjected to torture.

There are two main phases to extradition: first, a judge of the Court of Queen's Bench Queen's Bench n. 1) the highest court in Great Britain during the reign of a Queen, so that opinions are identified as a volume of Queen's Bench (QB). 2) in the United States, organizations of women lawyers, dating from when women were a small minority of practicing  or Supreme Court will evaluate the materials submitted by the foreign state and then will decide whether the person should be committed for surrender to the requesting country; second, the Minister of Justice decides whether the person should actually be surrendered. Canadian case law indicates that Charter issues may be raised at both stages (Robert J. Currie, "Charter Without Borders? The Supreme Court of Canada The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system.[1] , Transnational Crime and Constitutional Rights and Freedoms" (2004) 27 Dalhousie L.J. 235 at 246).

In general, there are three requirements for extradition:

* the conduct of the person sought to be extradited must constitute a crime in the requesting country;

* the conduct of the person would constitute a crime if it had been committed in Canada; and

* the crime must be listed in the extradition treaty between the two countries.

Before 1999, there was a fourth requirement--the requesting country had to have jurisdiction over the offence charged before extradition was allowed. Now, extradition can occur even if there is some question as to whether the criminal behaviour occurred in the geographical territory of the requesting country. Some commentators have noted that this provision may attract a Charter challenge for being ambiguous (Gary Botting, Canadian Extradition Law Butterworths, 2005).

Before 1999, people relied on Charters. 7 to argue that extradition should be disallowed in situations that "shocked the conscience of the court". Circumstances that possibly "shock the conscience" of the court so as to prevent extradition, include facing stoning to death for adultery or cutting off the hands of a thief. In some cases, the "youth, insanity, mental retardation mental retardation, below average level of intellectual functioning, usually defined by an IQ of below 70 to 75, combined with limitations in the skills necessary for daily living.  or pregnancy" of the person might be relevant factors considered by the court (United States v. Burns United States v. Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian , [2001] 1 S.C.R. 283 at para. 67). In Burns, the Supreme Court of Canada made it clear that surrendering people to the US to face the death penalty without assurances they would not be executed violated the Charter s. 7 right to life, liberty and security of the person, and this violation could not be saved under Charter s. 1. Thus, in all but exceptional cases, extradition had to be made conditional upon the Minister of Justice asking for and obtaining assurances that the accused would not be executed. In 1999, Parliament passed subsection 44 (2) of the Extradition Act, which allows the Minister to decide not to extradite in cases involving the death penalty. Since Burns, the Minister has been obtaining assurances that accused persons would not be executed (Botting).

Since 1999, when subsection 44(1) was added to the Extradition Act, in addition to determining whether surrender would violate the Charter, courts now also look at whether surrender would be "unjust or oppressive having regard to all the circumstances". Factors which may be considered by the Minister include "the criminal justice system and the conduct of the proceedings in the requesting country before and after the request for extradition, the potential punishment facing the individual if surrendered, humanitarian issues relating to the personal circumstances of the individual, the timeliness and manner of prosecuting the extradition proceedings in Canada, and Canada's treaty obligations and its status as a responsible member of the international community." (United States v. Bonamie, (2001), 90 C.R.R. (2d) 269 (Alta. C.A.).

Cases examining whether a surrender would be unjust or oppressive have had mixed results. For example, the Ontario Court of Appeal The Court of Appeal for Ontario (frequently referred to as Ontario Court of Appeal) is headquartered in downtown Toronto, in historic Osgoode Hall.

The Court is composed of 22 judges who hear over 1 500 appeals each year, on issues of private law, constitutional
 found that surrender would be unjust or oppressive in a case involving the request for surrender by the Philippines, where the person's co-accused (including his father and his lawyer) had had their trial delayed for ten years while they remained incarcerated incarcerated /in·car·cer·at·ed/ (in-kahr´ser-at?ed) imprisoned; constricted; subjected to incarceration.

in·car·cer·at·ed
adj.
Confined or trapped, as a hernia.
. The key factors were the likelihood of the person experiencing "serious violations of the fundamental right to trial within a reasonable time and the fundamental right not to be held indefinitely in custody without bail" (Canada (Minister of Justice) v. Pacificador (2002).

On the other hand, in a case similar to that of Emery, a Canadian citizen and a landed immigrant subject to an extradition request provided evidence to the court that if convicted for trafficking in cocaine in the United States, they could face life imprisonment Imprisonment
See also Isolation.

Alcatraz Island

former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]

Altmark, the

German prison ship in World War II. [Br. Hist.
 without possibility of parole. The Ontario Court of Appeal held that although such a sentence would rarely be imposed in Canada, it is available here, and therefore did not sufficiently violate the Canadian sense of fundamental justice so as to violate the Charter (United States v. Latty, (2004). The Supreme Court of Canada granted leave to appeal this decision in 2004.

Emery's case may have to await the Supreme Court's decision in Larry before the issue of whether his extradition to a country with stricter penalties can be determined. These cases illustrate the way that Canadian courts will address Charter arguments if there is an international aspect to the case. While the Charter applies to the process, the larger issues surrounding extradition are influenced by the recent emphasis on global cooperation to resolve transnational crimes.

Linda McKay-Panos, BEd, LLB LLB
abbr.
Latin Legum Baccalaureus (Bachelor of Laws)


LLB Bachelor of Laws [Latin Legum Baccalaureus]

Noun 1.
, LLM LLM
abbr.
Latin Legum Magister (Master of Laws)


LLM Master of Laws [Latin Legum Magister]

Noun 1.
 is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta. Thanks to Brian Seaman for suggesting this topic.
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Title Annotation:human rights law
Author:McKay-Panos, Linda
Publication:LawNow
Geographic Code:1CANA
Date:Feb 1, 2006
Words:1187
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