How long should the arm of the law be?
Extradition is a controversial issue that creates tension between legal systems
Tina Howe and Maria Cooke wouldn’t have looked suspicious as they drove a blue minivan through the Sumas border crossing into Washington state in June 2007.
But as the Dodge Caravan cruised down the I-5, its roof flew off and landed on the freeway, “scattering thousands of ecstasy pills across the road,” U.S. court documents say.
“Washington state troopers quickly responded and discovered a pink and blue haze of dust rising from the highway, which they later determined was the result of cars smashing the ecstasy pills into the road.”
It was just the beginning of a 2½-year judicial odyssey for the Metro Vancouver women, who were charged with several conspiracy drug counts that could land them in prison for years.
Cooke went so far as to strike a plea agreement in which the U.S. Attorney was requesting a reduced seven-year jail term. Then she failed to return to Seattle for a sentencing hearing in December 2008.
Howe, the suspected instigator of the rookie smuggling attempt on behalf of B.C. traffickers, missed her trial completely.
Now both women are on the long list of British Columbians who are the subject of extradition requests from the United States.
In many cases these extraditions are stalled because the paperwork is caught in government bureaucracies from Ottawa to Washington, D.C. Other accused were released on bail in B.C. and refuse to turn themselves in to foreign authorities. In at least one case, Canada is not sending a man south because of a medical condition.
There are now 34 B.C. residents wanted by foreign police agencies, mostly in the U.S.
The list does not include a rash of more recent indictments south of the border, such as the one unsealed last month implicating suspected B.C. traffickers Sean Doak, Colin Martin, James Cameron and Adam Serrano in a multimillion-dollar helicopter smuggling ring.
There are also U.S. charges against United Nations gang members still in Canada. And an outstanding indictment against Hells Angel Brian Lee Hall, who was arrested on the extradition request in July 2008.
A question of where
Critics of the extradition process say Canadians should be charged in their own country if there is evidence of crimes that involved cross-border transactions.
Simon Fraser University criminologist Rob Gordon says he does believe there is some “jurisdiction shopping” by law enforcement who want to see criminals dealt with effectively in the courts.
“I think there is some truth to that, especially with regard to the illegal drug trade. I think there are actually two issues that probably drive the preference for United States prosecutions,” he said. “One I think is the perceived sentencing practices in the United States and the other is more procedural — there are lots of impediments to a swift trial here.”
Across Canada, there are 107 Canadians with extradition requests from foreign states wanting to prosecute them on charges ranging from murder to money laundering. Almost half the cases are drug charges, with most of the requests coming from the United States.
RCMP Staff Sgt. Dave Goddard, of the federal drug enforcement branch, said police are not allowing Americans to take the lead in arresting Canadians in cases such as the helicopter smuggling probe, dubbed Operation Blade Runner.
“People get the impression that we are using U.S. law enforcement to prosecute our cases and that is not true. Our evidentiary rules are different. Our burden of proof is different. Our disclosure laws are different,” Goddard said.
“It is not that we don’t contemplate charges here in Canada. It is just that we investigate ’til we secure enough evidence or garner enough evidence that we can proceed with charges here.”
That can take a lot longer in Canada than it does in the U.S., he said.
Evidence rules different
“The level of evidence we require to lay a charge up here is probably much higher than it is in the United States.”
Goddard stressed that he is not criticizing the American system, simply pointing out that there are stark differences between the two countries.
As a result, there are often parallel probes, like in Blade Runner, where the Americans win the race to charge approval.
“Their rules of evidence are so much different that they can get their cases — such as those that were designed in Blade Runner — before the grand jury well before disclosure being done up here in Canada,” Goddard explained. “If we have the evidence here, we will prosecute the likes of Sean Doak and Colin Martin.”
He said he does expect Canadian charges to be laid in the same case.
“Those evidence packages will be forwarded to the Public Prosecution Service of Canada,” he said. “But our disclosure laws are somewhat more cumbersome and it does take a lot longer mainly because of the way our judicial system works. Whether it is good, bad or indifferent is not for me to say. It is what it is and it is a longer process in Canada than it is in the United States.”
Charge approval is not the only process that is lengthy in Canada. Extradition cases can linger for years. Last October, financial fugitive Rakesh Saxena was extradited to Thailand after a Canadian court battle that lasted more than 13 years.
And in January 2008, Vancouver gangster Ranjit Cheema lost his last-ditch attempt to avoid extradition to the U.S. on drug charges dating back a decade. The oldest request still on the books in Canada is for Simon Raghoonanan, who Trinidad requested for extradition on Jan. 18, 2001. Raghoonanan is charged in connection with the 1996 murder of a witness in a gang case.
B.C. case dates to 1999
In B.C., the longest-running case involves Robert and Terry Shull, both wanted in Massachusetts since April 1999 on charges of telemarketing fraud.
And then there is the case of Zalig Fester, charged in August 2005 with conspiring to import and distribute ecstasy into the U.S. through the infamous tunnel burrowed under the border between B.C. and Washington state.
Fester is in a B.C. jail serving a sentence of just under six years for shooting his former girlfriend’s new boyfriend in October 2005 after showing up at her house wearing a bulletproof vest with two loaded guns. He hit the boyfriend in the ankle and pointed a gun at his head, threatening to kill him.
“Fortunately, the police arrived at that moment,” a 2008 B.C. Appeal Court ruling said. “One officer pointed a gun at Mr. Fester’s head, and he surrendered.”
The court refused to reduce Fester’s sentence, noting the trial judge had considered all of the issues he raised, including his Crohn’s disease “which makes incarceration more difficult for him.”
That medical condition is what is holding up his extradition, which was ordered by B.C. Supreme Court Justice Eric Rice last September.
“The latest inquiry was he has got health problems and the Canadians were concerned we could not adequately deal with his health problems here,” said Asst. U.S. Attorney Doug Whalley, who is based in Seattle. “So I am supposed to find out from the Bureau of Prisons if we can handle him.”
Whalley said the delays in processing extradition requests can also be on the U.S. side.
“It is a relatively cumbersome process. I started doing as many as I could two years ago because it got easier to do them if you did a lot. I can start an extradition today and probably complete it in about a month,” he said.
The paperwork then goes to Washington, D.C., where it can sit for another period of time. It then gets filed with the Canadian government in Ottawa, before eventually coming back to the jurisdiction in which the accused person is living.
If an extradition warrant is issued, Canadian authorities arrest the person and the court process begins.
Whalley said he sometimes receives questions about evidence in a case.
“How did they know it was marijuana? And who handled the drugs between the time it was seized and the time it was sent to the lab? [These are] things they consider important,” he explained.
Most B.C. residents listed on extradition requests are wanted in Whalley’s jurisdiction — Western Washington.
“I show about 15 where a completed packet has been sent to D.C.,” he said. “Some of those we have had reports back from the Canadians and some of them we haven’t. There are probably about three to four others around the office that I don’t know about, but I try to keep track of them.
“The last three or four years, we have successfully returned about 17 defendants. Some surrendered once they were arrested on the extradition package. Some surrendered while it was in the process and some were extradited.”
Some ‘lured into’ U.S.
Eastern Washington, where Blade Runner occurred and where both UN associate Joe Curry and former Bacon associate Dustin Haugen are wanted, has the next most requests for B.C. residents.
Curry was in B.C. Supreme Court again Friday as lawyer John Conroy argued that the case against his client is too circumstantial to warrant extradition. Conroy said in an interview that Canada is one of the few countries that will ship citizens to foreign jurisdictions for trials.
“Many, many countries will not extradite their nationals. They’ll charge people in their own country,” he said. And he said there have been examples of Canadians “who are lured into the U.S.” where they are arrested and prosecuted.
A number are also wanted in Central California, Thom Mrozek, spokesman for the U.S. Attorney in Los Angeles said in an interview.
Some of those are drug cases like that of Minh Tan Le, accused of a role in an ecstasy ring operating up and down the west coast of North America and in Australia.
On Feb. 5, 2009, B.C. Supreme Court Justice William Ehrcke ordered Le deported, saying the wiretap evidence obtained both by the Drug Enforcement Administration and the Combined Forces Special Enforcement Unit-B.C. showed Le worked with his cousin in the U.S. “to supply drugs for distributors in California and to ship large quantities of methamphetamine to Sydney, Australia.”
Mrozek said that despite the B.C. court order, the U.S. Attorney’s office was told that Le, who was out on bail, did not turn himself in to be surrendered to the Americans.
A lot of the California requests are telemarketing and fraud cases, Mrozek said.
Whalley, the Assistant U.S. Attorney, says he understands why the process takes a long time at the Canadian end.
“It is hard to blame the Canadian courts because what they are doing is ordering a person out of the country to the United States so they demand pretty tough evidence that it is a good case — not a great case — but a case that is sufficient,” he said.
BY KIM BOLAN,
JANUARY 15, 2010