Monday, July 24, 2006

Ferras -- Case Comment -- Thumbs Up

If a criminal trial is the supreme expression of distrust in our own state, the extradition hearing is all about ambivalence about our neighbours. We aren't supposed to enter into extradition treaties with states that don't give fair trials. At the same time, we do require a judge to give some scrutiny to the charges and the evidence for them before we let someone lawfully here face another legal system. Even after the judge has passed on the matter, the Feds retain some executive discretion, which is subject to the constitutional requirement that extradition not be permitted if the punishment in the receiving state would shock the Canadian conscience.

In short, there are some tricky questions in extradition, since we are simultaneously acknowledging the rights of other countries to punish for crimes committed by people now within our borders, but putting some limits on that right.

On Friday, the SCC released a major decision about the constitutional requirements of extradition hearings, along with separate brief reasons in a companion set of appeals.

The case goes under the name Ferras, although there were a number of other alleged miscreants in each of the two sets of appeals. Ferras allegedly ran a "boiler room" scam. Leroy "Scabby" Latty and Lynval "Frankie" Wright helped cement the unity of the Anglosphere by co-ordinating the transportation of coke between London and New York by American Airline stewardesses out of an operation in Toronto.

Section 7 of the Charter guarantees the application of "the principles of fundamental justice" to any deprivation of "life, liberty and security of the person." There is no doubt that this includes extradition. The principles of fundamental justice give the courts abundant wiggle room to ensure that procedures are up to snuff. (What they don't do -- properly and historically understood -- is give the courts the right to interfere in substantive policy choices as in Chaoulli.)

The McLachlin Court uses this leeway as follows:

a. To override a strange 1970s-era decision that prevented the extradition hearing judge from providing any scrutiny to the "evidence" provided in favour of guilt. Now, the judge is to decide whether the evidence is enough that a properly instructed Canadian jury could convict on the parallel offence in Canada.

b. To require the foreign governments to certify that the evidence used to justify extradition is available for the trial in the receiving country.

At the same time, they upheld the use of hearsay, kept the threshold for sufficiency of evidence low and ridiculed the idea that foreign governments have to give the 2-for-1 recognition of pre-trial custody Canadian courts do.

I see Ferras as representing the style of the McLachlin court at its best: very pragmatic and open to discussion of the underlying policy tensions. There are some problems with this style - it may encourage excessive innovation in the law and too much abstract law clerky discussion. I was a bit troubled by the fact that the case hardly comes to grip with the facts at all until a few paragraphs near the end. That isn't my understanding of how common law jurisprudence is supposed to work. (More on this later.)

But the middle-of-the-road policy-laden approach seems appropriate for constitutionality of extradition procedures, and I think the resulting compromise is sensible enough, so I'm going to give the coveted Pith & Substance Thumbs Up.

Case Comment ofUnited States of America v. Ferras; United States of America v. Latty, 2006 SCC 33 and United Mexican States v. Ortega;United States of America v. Fiessel, 2006 SCC 34

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