This is a really interesting situation, and a case any lefty / constitutional lawyer would love to get his/her mitts on. (I assisted in one extradition case when I was articling, but they're not very common.)
It is also, obviously, rather significant in terms of the nature of the Canada-US relationship.
CTV said:
The warrant cited a request from U.S. officials.
... "I can express a pretty significant disappointment that police would choose to go this route to go after Marc and others who have been operating there for years with no harm to anyone," Tousaw told CTV.ca News.
This search was conducted
in response to a request from the US govt, on the authority of the federal Minister of Justice; the police didn't have a lot to do with it.
(From other experience, I can assure everyone that there had been at least months of investigation, including wiretaps, including Internet surveillance, witness interviews and other surveillance, and the affidavits in support of the request for the wiretap warrants and search warrants would probably have run to the 100s of pages.)
"Request" has a very technical meaning here. It's a
"request for mutual legal assistance". It's made under a bilateral agreement between the two countries involved. It's how we went after evidence of corruption against Karlheinz Schreiber and the boys (Brian Mulroney, Frank Moores) in Switzerland, remember?
1997 Justice press release"This signing is yet another step in helping us to create an international network of mutual legal assistance," said Minister McLellan. " I would like to thank Minister Parkanova and the government of the Czech Republic for taking this step with us."
This is the second such treaty Canada has recently signed with another state. In early September, Canada signed a mutual legal assistance treaty with Trinidad and Tobago. Canada currently has 16 of these treaties in effect, including those with the United States, the United Kingdom, Australia and France.
It's international cooperation and the rule of law and all that jazz. It's what we Canadians do, and actively promote throughout the world.
Here's the actual treaty itself:
Canada-US mutual legal assistance treatyTHE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA,
DESIRING to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime through cooperation and mutual assistance in law enforcement matters,
HAVE AGREED AS FOLLOWS:
... Article II
Scope of Application
1. The Parties shall provide, in accordance with the provisions of this Treaty, mutual legal assistance in all matters relating to the investigation, prosecution and suppression of offences.
2. Assistance shall include:
a) examining objects and sites;
b) exchanging information and objects;
c) locating or identifying persons;
d) serving documents;
e) taking the evidence of persons;
f) providing documents and records;
g) transferring persons in custody;
h) executing requests for searches and seizures.
3. Assistance shall be provided without regard to whether the conduct under investigation or prosecution in the Requesting State <here, the US> constitutes an offence or may be prosecuted by the Requested State<here, Canada>.
4. This Treaty is intended solely for mutual legal assistance between the Parties. The provisions of this Treaty shall not give rise to a right on the part of a private party to obtain, suppress or exclude any evidence or to impede the execution of a request.
... Article V
Limitations on Compliance
1. The Requested State may deny assistance to the extent that
a) the request is not made in conformity with the provisions of this Treaty; or
b) execution of the request is contrary to its public interest, as determined by its Central Authority. ...
Article XVI
Search and Seizure
1. A request for search and seizure shall be executed in accordance with the requirements of the law of the Requested State. ...
DONE in duplicate, in the English and French languages, each language version being equally authentic, at Quebec City, this 18th day of March, 1985.
BRIAN MULRONEY For the Government of Canada
RONALD REAGAN For the Government of the United States of America
Haha, just threw that last bit in for fun.
What has happened is that the US has
made a request for the extradition of Emery and his associates, and
made a request for mutual legal assistance so that it can acquire the evidence that it believes is located in Canada, that it needs in order to make out its case against Emery. That is all on the up and up -- it is entitled to do these things under the treaties.
We have an extradition treaty with the US as well, of course, and it is what the extradition request is made and considered, and ultimately (possibly) the extradition carried out, under:
Canada-US extradition treatyArticle 1
Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty committed within the territory of the other ... .
Schedule
... 26. Offenses against the laws relating to the traffic in, production, manufacture, or importation of narcotic drugs, Cannabis sativa L., hallucinogenic drugs, amphetamines, barbiturates, cocaine and its derivatives.
<I'm not seeing money laundering in there, or in the 1974 protocol, but I'm no expert>
... Article 4
(1) Extradition shall not be granted in any of the following circumstances:
... (iii) When the offense in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offense of the above-mentioned character. If any question arises as to whether a case comes within the provisions of this subparagraph, the authorities of the Government on which the requisition is made shall decide. ...
What we can now expect to see, if I've sussed out what's going on accurately, is protracted proceedings in which Emery maybe claims that he is exempt from extradition under (1)(iii) just above there -- political prosecution, heh -- but certainly makes various Charter arguments against extraditing him. Recall that the Supreme Court did refuse to allow extradition to the US in the fairly recent case of the two men charged with murder in a northwestern US state and liable to the death penalty.
The arguments will be very interesting. In the death-penalty extradition case, the decision was essentially based on procedure -- the inability of the US state to guarantee
procedural fairness in applying the death penalty, not the unconstitutionality in Canada of the death penalty or of extraditing someone to be executed. We haven't gone quite as far as, say, France, which has formally announced its refusal to deport in death penalty cases.
But Emery will have substantive Charter arguments as well, about the nature of the laws that relate to cannabis -- and the cruel and unusual sentences imposed for drug offences in the US. He wouldn't have much of a Charter argument against money-laundering charges, for instance.
Karlheinz Schreiber had argued that the search in Switzerland did not meet Charter standards. The fed govt here wondered how the hell they were supposed to ensure that a search in another country met Charter standards. The Supreme Court disposed of the question in the govt's favour:
Schreiber v. Canada, 1998
Per L'Heureux-Dubé, McLachlin, Bastarache and Binnie JJ.:
By virtue of s. 32 of the Canadian Charter of Rights and Freedoms, the Charter is applicable to all matters within the authority of Parliament and the government of Canada. The specific actions undertaken by Canadian officials must be assessed to determine if they infringe a right or freedom guaranteed by the Charter.
Section 8 of the Charter protects S from intrusions upon his privacy by the government of Canada through unreasonable use of the power of search or seizure.
By itself, the sending of the letter of request does not engage s. 8 of the Charter. All of those actions that rely on state compulsion in order to interfere with S's privacy interests were undertaken in Switzerland by Swiss authorities and are not subject to Charter scrutiny. Drawing a line between those Canadian actions that did not implicate the Charter, and the actions by Swiss authorities that would have implicated the Charter had they been undertaken by Canadian authorities, is consistent with this Court's jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions. ...
This might actually go in Emery's favour in his case -- according to the SCC, Canada's standards apply when the search is carried out in Canada. So if he has a successful Charter argument of some sort against the search, the US would be shit out of luck in that regard.
He will probably also challenge Canada's entitlement to extradite him at all, arguing that the provision of the treaty relating to cannabis is unconstitutional.
Like I say, it should be long and interesting.
But let's keep in mind -- Canada was, at least as far as I can tell from the scant facts -- NOT acting as a puppet of the US, it was acting under and in accordance with the international obligations that it had voluntarily assumed:
- to provide mutual legal assistance by conducting searches that would be legal if the Cdn police authorities were conducting them;
- to provisionally arrest a person for extradition where the other party to the treaty has requested extradition.
Emery *is* entitled to a hearing on the extradition request, under the
Extradition Act:
11. (1) A request by an extradition partner for the provisional arrest or extradition of a person shall be made to the Minister.
(2) A request by an extradition partner for the provisional arrest of a person may also be made to the Minister through Interpol.
... 12. The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that
(a) the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); and
(b) the extradition partner will make a request for the extradition of the person.
... 15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.
... 24. (1) The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.
I mean, we could just send him to, oh, the Netherlands so he could be tortured or something until he confessed, of course.
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