Ask the Canuck law-talkin' guys about the Constitution of Canada!

[Muffin]

@Northern_Piper

You’re right - it is an obvious work-around, which is why it is not permitted. In extradition law there is the doctrine of “specialty”. This doctrine means that if extradition is granted, the requesting state can only prosecute the individual for the crimes set out in the extradition application and the extradition Court’s order. If the individual is acquitted, or is convicted and serves his sentence, he then must be given a reasonable opportunity to leave the country and return to the first country. This principle is incorporated in all extradition treaties, so far as I know. I haven’t looked, but I assume it is in the Canada - US extradition treaty.

Yup. Article 12.

Love your sig line.

[ctnguy]

@Northern_Piper

You’re right - it is an obvious work-around, which is why it is not permitted. In extradition law there is the doctrine of “specialty”. This doctrine means that if extradition is granted, the requesting state can only prosecute the individual for the crimes set out in the extradition application and the extradition Court’s order. If the individual is acquitted, or is convicted and serves his sentence, he then must be given a reasonable opportunity to leave the country and return to the first country. This principle is incorporated in all extradition treaties, so far as I know. I haven’t looked, but I assume it is in the Canada - US extradition treaty.

So, not only was L&O wrong about Canadian Charter law, it was actually wrong about extradition in general? Somehow, I am not very surprised… :dubious:

(Seriously, thanks for the comprehensive answers.)

[ctnguy]

@ctnguy

Why did the court issue its ruling in US v. Burns anonymously as “The Court”, rather than under the name of a judge? I noticed that the very similar ruling of the South African Constitutional Court (Mohamed v President) was also issued anonymously. Is there something special about extradition or the death penalty that leads courts to do that, or is it just a coincidence?

@Northern_Piper

The SCC often issues anonymous unanimous reasons in very high profile constitutional cases. I think the reason is that they want to emphasise that it’s the decision of the Court as a whole, and to flag that it is a significant ruling. As for the South African court, I don’t know, but in general, the decisions of the SCC have been very influential in South Africa, so it may be that the South African court is following this practice as well.

The South African ConCourt usually only issues anonymous unanimous opinions in cases involving the integrity of the system of government itself - things like the validity of elections, personal accusations against the President, claims of biased judges, etc. (Or, in one memorable case, when the appellant requested the recusal of so many judges that the court wouldn’t have had a quorum. :smack:) Which is why it seemed unusual that they did it for the extradition case which was a much more “normal” sort of case. (It occurs to me that they might have considered it extremely high-profile because of the terrorism/extraordinary-rendition connection.)

[Northern_Piper]

@ctnguy

(Also, if there are any Yankee law-talkin’ guys in this thread, why would the New York DA care about waiving the death penalty when New York hasn’t executed anyone since 1963?)

@Elendil_s_Heir

There have been recurring proposals to reinstate the death penalty in NYS, although they haven’t gone anywhere in years. Maybe the DA just wanted to keep his or her options open in case the law changed?

It just occurred to me - in the Law and Order Multiverse, the death penalty is still in use - remember that the episode where Claire Kincaid is killed by a drunk driver is unusual because it’s not the standard “find the perp and put him on trial” pattern. Instead, it follows each of the four the day a killer they caught gets executed: (“Aftershock”. Law & Order, episode 23, season 6. 1996-05-22.)

[Northern_Piper]

@ctnguy

The South African ConCourt usually only issues anonymous unanimous opinions in cases involving the integrity of the system of government itself …

Perhaps they considered the issue of the death penalty as going to the integrity of the government?

[Northern_Piper]

@Muffin

Yup. Article 12.

Thanks for finding that, Muffin. Here’s the text of article 12:

[QUOTE=Canada - US Extradition Treaty]
ARTICLE 12

(1) A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:

(i) He has left the territory of the requesting State after his extradition and has voluntarily returned to it;

(ii) He has not left the territory of the requesting State within thirty days after being free to do so; or

(iii) The requested State has consented to his detention, trial, punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.

(2) The foregoing shall not apply to offenses committed after the extradition.
[/QUOTE]

So, 30 days to get out of Dodge once proceedings in the requesting state have finished.

[QUOTE=Muffin]
Love your sig line.
[/QUOTE]

Catchy, isn’t it?

[Northern_Piper]

@Muffin

The Assange matter in Europe is worth watching for this sort of issue.

This is what I posted on this point in one of the Assange threads:

@Northern_Piper

It’s a general principle of extradition law that when a country surrenders someone to another country, it’s only for the purpose of the crime alleged in the extradition request. The requesting country can’t “bait and switch” - ask for extradition on a relatively minor matter, then once the person is extradited, charge with a much more serious crime, or a greater number of crimes. This principle is called the “rule of specialty.”

One aspect of the rule of specialty is that the requesting country cannot then turn around and extradite him to a third country. The US recognizes this principle, as this document from the State Department[pdf] states:

A person extradited under this Agreement shall not be arrested, detained, tried or punished in the jurisdiction of the requesting Government for an offense other than that for which extradition has been granted nor be extradited by that Government to a third country unless … [various conditions set out]

Note: I’m not sure what this document is; appears to be an extract from a US extradition treaty.

Britain’s Extradition Act 2003 sets out this principle as well. It divides countries into 2 categories. Category 1 countries are the European countries that have agreed to the European Arrest Warrant system, and includes Sweden. Category 2 countries are other countries that Britain has an extradition treaty with, such as the US.

Section 58 of the UK Act sets out the process that must be followed if a Category 1 country such as Sweden has received a fugitive from Britain, and then applies to Britain to extradite that person to a Category 2 country, such as the US. The Secretary of State essentially has to decide if the accused could have been extradited to the Category 2 country if the accused were still in the UK.

So, given all that, what’s the point in some secret conspiracy by the US to try to get Sweden to extradite, and then apply to Sweden to extradite?

The argument that the whole purpose of the Sweden extradition request is to let Sweden just turn around and hand him over to the US seems pretty far-fetched, in light of this principle of extradition law. Since the UK’s permission would be needed, why is it better for the US to need to seek permission from both the UK and Sweden, rather than just the UK? Doubles the chance that extradition will be refused.