[Senate Executive Report 107-14]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
2nd Session SENATE 107-14
======================================================================
SECOND PROTOCOL AMENDING EXTRADITION TREATY WITH CANADA
_______
October 17, 2002.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 107-11]
The Committee on Foreign Relations, to which was referred
the Second Protocol Amending the Treaty on Extradition Between
the Government of the United States of America and the
Government of Canada, signed at Ottawa on January 12, 2001
(Treaty Doc. 107-11), having considered the same, reports
favorably thereon, and recommends that the Senate give its
advice and consent to the ratification thereof as set forth in
this report and the accompanying resolution of advice and
consent to ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background and Summary...........................................1
III. Entry Into Force and Termination.................................2
IV. Committee Action.................................................2
V. Explanation of the Second Protocol Amending the Extradition Treaty
with Canada......................................................3
VI. Text of Resolution of Advice and Consent to Ratification.........8
I. Purpose
The Protocol amends the existing U.S.-Canada extradition
treaty in order to make changes regarding temporary surrender
and the authentication requirements.
II. Background and Summary
The Protocol with Canada is the second protocol to the
U.S.-Canada Extradition Treaty, which was signed in 1971 and
entered into force in 1976. The first Protocol to the Treaty
was signed in 1988, and approved by the Senate in 1991. The
Protocol before the Senate was signed in January 2001, and
submitted to the Senate on July 11, 2002.
The Protocol achieves two purposes. First, it modernizes
the provision on temporary surrender of a person to the
requesting state for the purpose of prosecution. Under Article
7 of the current U.S.-Canada treaty, when a person sought for
extradition is already being prosecuted or serving a sentence
in the requested state, the surrender may be deferred until the
conclusion of the proceedings or the sentence has been served.
The Protocol would add new paragraphs to Article 7 to allow for
temporary surrender to the requesting state for prosecution,
even if the individual has not completed his sentence in the
requested state. These type of temporary surrender provisions
are common to modern extradition treaties. They allow for
prosecution of the offense closer in time to its commission,
which advances the objective of securing justice. Long delays
in commencing trial also raises the danger that witnesses will
be unavailable, or that witnesses' memories will fade with the
passage of time.
Second, the Protocol provides for simplified authentication
requirements with respect to requests from the United States.
This takes advantage of changes in Canadian law regarding the
admissibility of extradition documents in Canadian courts.
Under Article 10(2) of the current Treaty, documentary evidence
in support of a request for extradition must be authenticated
by an officer of the Department of Justice of Canada and
certified by the principal diplomatic or consular officer of
the United States in Canada (in the case of a request emanating
from Canada) or must be authenticated by an officer of the
Department of State of the United States and certified by the
principal diplomatic or consular officer of Canada in the
United States (in the case of a request emanating from the
United States). Article 2 of the Protocol allows requests
emanating from the United States to follow a simplified
procedure, requiring only that evidence be certified by a
judicial, prosecuting or correctional authority. The Protocol
also provides a flexible means to take advantage of any future
changes in applicable laws in either country. New Article
(10)(2)(c) (added by Article 2) would allow admission of
evidence which is ``certified or authenticated in any other
manner accepted by the law of the requested State.''
III. Entry into Force and Termination
Under Article 3, the Protocol enters into force upon the
exchange of instruments of ratification. It terminates upon
termination of the underlying Extradition Treaty.
IV. Committee Action
The Committee held a public hearing on the Protocol on
September 19, 2002, receiving testimony from representatives of
the Departments of State and Justice. (S. Hrg. 107-721) The
Committee considered the Protocol on October 8, 2002, and
ordered that it be favorably reported by voice vote, with the
recommendation that the Senate give its advice and consent to
ratification of the Protocol.
V. Explanation of the Second Protocol Amending the Extradition Treaty
with Canada
What follows is a technical analysis of the Treaty prepared
by the Departments of State and Justice.
Technical Analysis of The Second Protocol Amending the Extradition
Treaty Between the Government of the United States of America and the
Government of Canada of December 3, 1971
On January 12, 2001, the United States signed the Second
Protocol Amending the Treaty on Extradition between the
Government of the United States of America and the Government
of Canada (``the Second Protocol''). The Second Protocol
authorizes: (1) the temporary extradition to the requesting
State of individuals charged with crimes there who are serving
sentences in the requested State, and (2) the modification of
the authentication requirements for U.S. extradition documents
being submitted to Canadian authorities.
On June 17, 1999, Canada enacted new extradition
legislation, which includes a provision on temporary surrender.
\1\ The United States currently has no similar law. Absent the
authorization provided by the Second Protocol, surrender
through the extradition process of persons already convicted
and sentenced in the country from which extradition is sought
must generally be deferred until the completion of their
sentences, by which time the evidence in the other country may
no longer be compelling or available. Pursuant to the Second
Protocol, such individuals, upon the granting of requests for
their extradition, can be temporarily surrendered to the
requesting State for purposes of immediate prosecution and then
returned to the requested State for the completion of their
original sentences.
---------------------------------------------------------------------------
\1\ Bill C-40, Chapter 18, Part 2,--66
---------------------------------------------------------------------------
The Second Protocol also makes several technical changes
that would streamline the Extradition Treaty's authentication
provisions. Under Article 10(2) of the Extradition Treaty,
documentary evidence in support of an extradition request from
the United States must be authenticated by the Department of
State and by the principal diplomatic or consular officer of
Canada in the United States. Similar requirements are in place
for requests from Canada. Canada's June 17, 1999 extradition
legislation provides that no authentication of documents is
required unless a relevant extradition agreement provides
otherwise. \2\ The Second Protocol eliminates the need for
State Department and diplomatic/consular authentication for
documents in support of U.S. requests. Instead, Article 2 of
the Second Protocol allows for a judicial authority or
prosecutor in the United States to provide the necessary
certification when the person is sought for prosecution. When
the person sought has already been convicted, documents
supporting the U.S. request can be certified by a judicial,
prosecuting or correctional authority. Although the Second
Protocol retains the existing authentication provisions for
extradition requests from Canada, it also provides the
alternative that documents may be certified or authenticated in
any other manner accepted by the law of the requested State.
This alternative enables both countries to take advantage of
any new changes to their laws.
---------------------------------------------------------------------------
\2\ Bill C-40, Chapter 18, Part 2,--33(4)
---------------------------------------------------------------------------
The Second Protocol serves as a supplement to, and is
incorporated as a part of, the existing Extradition Treaty
between the United States of America and Canada, signed at
Washington on December 3, 1971, as amended by an Exchange of
Notes of June 28 and July 9, 1974, and a Protocol signed at
Ottawa on January 11, 1988. \3\ The temporary surrender
mechanism established by the Second Protocol is a standard
feature in extradition treaties concluded in recent years. \4\
In addition, on November 13, 1997, the United States and Mexico
signed a Temporary Surrender Protocol to the Extradition Treaty
Between the United States of America and the United Mexican
States of May 4, 1978. The addition of this mechanism to the
U.S.-Canada Extradition Treaty, along with the streamlined
authentication procedures, will serve to improve the bilateral
extradition process in light of modern treaty practice and
patterns of criminal behavior.
---------------------------------------------------------------------------
\3\ 27 UST 983; TIAS 8237
\4\ Temporary surrender provisions are found at Art. 15, United
States-Switzerland Extradition Treaty, signed Nov. 14, 1990, entered
into force Sept. 10, 1997; Art. 12, United States-Belgium Treaty,
signed April 27, 1987, entered into force Sept 1, 1997; Art. 13, United
States-Malaysia Treaty, signed August 3, 1995, entered into force June
2, 1997; Art. 14, United States-Hungary Treaty, signed Dec. 1, 1994,
entered into force March 18, 1997; Art. 11, United States-Philippines
Treaty, signed Nov. 13, 1994, entered into force Nov. 22, 1996; Art.
11, United States-Bolivia Treaty, signed June 27, 1995, entered into
force Nov. 21, 1996; Art. 13, United States-Jordan Treaty, signed March
28, 1995, entered into force July 29, 1995; and Art. 12, United States-
Bahamas Treaty, signed March 9, 1990, entered into force Sept 22, 1994.
---------------------------------------------------------------------------
The Office of International Affairs, Criminal Division,
United States Department of Justice, and the Office of the
Legal Adviser, United States Department of State, prepared the
following technical analysis of the new Treaty based on their
participation in its negotiation.
Article 1
Article 1 amends the Extradition Treaty by adding a new
article entitled ``Article 7 bis'' after Article 7. Paragraph 1
of the new article describes the new mechanism of temporary
surrender for individuals serving sentences in the requested
State.
Article 1, paragraph 1, of the Second Protocol sets forth
the substantive authorization for the requested State to allow
the temporary surrender to the requesting State of individuals
who have been found extraditable, but have already been
convicted and sentenced in the requested State. Article 7 of
the Extradition Treaty contemplates only the surrender outright
of such individuals, or the deferral of their surrender until
the punishment imposed against them has been fully executed. To
prevent the injustice potentially created by prolonged delays
prior to surrender, the expedited transfer procedure of the new
Article 7 bis provides another option to assist both
governments in the effective pursuit and prosecution of
criminal defendants.
Temporary surrender under the Second Protocol applies only
to those who have been convicted and sentenced in the requested
State. It does not cover persons who are simply facing charges
in the requested State or against whom proceedings have been
initiated, but not yet completed, because of jurisdictional and
speedy trial issues that might otherwise be implicated.
Similarly, as in analogous provisions of other extradition
treaties to which the United States is a party, the Second
Protocol does not apply to those being sought by the requesting
State for service of a previously-imposed sentence, because the
rationale for this mechanism--the prosecution of the extraditee
while the case is still viable--is not implicated for those who
already have been convicted in the requesting State.
During the negotiations, the delegations discussed the
circumstances under which each State anticipates making
requests for temporary surrender. Both delegations expressed
the view that the mechanism should not be used for every case
in which a person sought in the requesting State is serving a
sentence in the requested State. Rather, it is envisioned that
temporary surrender should be reserved for cases in which
witnesses or evidence may not be available in the requesting
State for a later trial, the person is serving a lengthy
sentence in the requested State, the offense charged in the
requesting State is particularly serious or sensitive, or other
conditions indicate that the ends of justice will best be
served by temporary surrender.
Paragraph 1 goes on to explain that the temporary surrender
of the person shall not divest the Courts in the requested
State of jurisdiction over any appeal or habeas corpus
application relating to the conviction or sentence that may be
available under the laws of the requested State. The
negotiators included this language to make clear that the
temporary surrender will not impair the ability of the Courts
in the requested State to consider appropriate challenges to
the original conviction or sentence in that State, or otherwise
compromise the appellate process due to the defendant's
absence. This process contemplates only post-conviction appeals
in the United States, and post-conviction or post-acquittal
appeals in Canada, as the latter's law provides for appeals of
acquittals by the Government. The negotiators concurred that
only in rare circumstances will the Parties effect the
temporary surrender of an individual before the appeals process
has been completed in the requested State.
Article 1(2) states that the surrendered person shall be
kept in custody in the requesting State. The negotiators agreed
that the mandatory language in the Second Protocol was intended
to preclude the release of a person temporarily surrendered.
Canada's temporary surrender legislation requires that a
person be returned within 30 days of the conclusion of the
trial, unless a relevant extradition agreement provides for
another time limit. Recognizing that 30 days from trial might
not capture related sentencing proceedings and could restrict
the time available to a person to consult with his attorney in
the requesting State regarding the filing of an appeal,
paragraph 2 provides that a person `` . . . shall be returned
to the requested State within forty-five (45) days after the
conclusion of the proceedings for which the person's presence
was required or at another time as specified by the requested
State, in accordance with conditions to be determined by the
Parties for that purpose.''
Article 1(2) contemplates that authorities in the United
States and Canada will consult to determine appropriate
conditions for the temporary surrender of an individual,
including arrangements for the transfer and maintenance of
custody of the prisoner and the return to the requested State,
as well as any extraordinary matters that may be relevant, such
as the proper handling of individuals requiring medical
treatment or the disposition of a prisoner who commits new
crimes in the requesting State during the period of temporary
surrender. Canada's temporary surrender law provides for what
is understood to be the rare circumstance in which the Minister
of Justice may require an assurance that the person to be
surrendered temporarily will be returned no later than a
specified date, in which case the Parties will have to decide
on the timing of the transfer. As in paragraph 1, the
negotiators included language ensuring that the transfer of the
prisoner back to the requested State would not divest the
Courts of the requesting State of jurisdiction over any appeal
or habeas corpus application that may be available under the
law of the requesting State, relating to the matter for which
the prisoner was temporarily surrendered.
Paragraph 3 establishes that the time spent in custody in
the requesting State may be credited to the sentence in the
requested State. Canadian law provides for credit without
regard to conviction in the requesting State, and the Canadian
negotiators felt strongly about including such a provision in
the Second Protocol. Credit for time served may differ among
U.S. state and federal authorities. Accordingly, the
negotiators agreed to use the permissive ``may'' formulation in
this paragraph in order to provide flexibility for different
approaches.
In light of the agreement in paragraph 3 that the requested
State's sentence may be running during the period of temporary
surrender, paragraph 4 establishes that when the sentence that
the transferred person was serving in the requested State
expires during the temporary surrender period, the requested
State may waive the return of the person and the surrender will
be considered ``final.'' This provision makes administrative
and economic sense, and avoids needless transport of the
prisoner back to the requested State only to have the person
finally extradited to the requesting State.
Paragraph 5 provides that when an individual has been
surrendered temporarily, convicted and sentenced in the
requesting State for the offense for which temporary surrender
was granted, and returned to the requested State, the
individual may be finally surrendered to the requesting State
without a further request for extradition. The operation of
this paragraph is subject to paragraphs 6 and 7, which are
discussed below.
Paragraph 6 was proposed by the Canadian delegation, in
accordance with their new law, to establish that the final
surrender of a person shall take place when the person has
finished serving the custodial portion of the sentence in the
requested State, or at an earlier time specified by the
requested State. This paragraph allows the requested State to
effect the final surrender of a person who has been released on
parole, or under other conditions, and permits the possibility
of final surrender at any earlier time permissible under the
requested State's law, even if the sentence technically is not
concluded.
Paragraph 7(a) contemplates that there shall be no final
surrender of an individual when the requesting State advises
that it is no longer required because the sentence imposed has
expired, or for other reasons. One example of this might be
when the requesting State convicts a person temporarily
transferred there and imposes a sentence intended to run
concurrently with one in the requested State. In such a case,
the requesting State may not want final surrender of the person
from the requested State, or the sentence may expire in the
interim. Paragraph 7(b) accounts for a situation in which,
during the intervening period between return of the person to
the requested State and final surrender, the order of surrender
is revoked by the Canadian Minister of Justice or the U.S.
Secretary of State.
Article 2
Article 2 of the Second Protocol deletes Article 10(2) of
the Extradition Treaty and replaces it with streamlined
procedures for the authentication of U.S. extradition
documents. Canada's new extradition legislation provides that
no authentication of documents is required unless a relevant
extradition agreement provides otherwise.
Article 2(2) of the Second Protocol establishes a framework
for the admissibility of documentary evidence in support of a
request for extradition. Paragraph (2)(a) requires that, in the
case of a request from Canada, documents must be authenticated
by an officer of the Department of Justice of Canada and
certified by the principal diplomatic or consular office of the
United States in Canada. These requirements mirror our current
practice concerning documents in support of Canadian
extradition requests. Although the Canadian delegation
expressed its hope that the United States could dispense in the
Second Protocol with the more cumbersome requirements for
admissibility of their documents in U.S. courts, the U.S.
delegation explained that it was limited in what it could do by
the requirements of Title 18, United States Code, Section 3190.
Nevertheless, the Canadian delegation permitted the United
States to take advantage of Canada's new law, agreeing to
design paragraph (2)(b) so that the United States would no
longer be required to have its documents in support of
extradition requests to Canada authenticated by an officer of
the Department of State of the United States and certified by
Canada's principal diplomatic or consular officer in the United
States.
Paragraph (2)(b) goes on to state that, in the case of a
request from the United States for a person who is sought for
prosecution, documents are admissible in Canada if they are
certified by a judicial authority or prosecutor who attests
that the evidence is available for trial and is sufficient to
justify prosecution under the law of the prosecuting
jurisdiction. This attestation tracks the provision of Canadian
law that was designed for requests from common law legal
systems. The new procedure will eliminate the need for
authentication by State Department and diplomatic/consular
officials, which can be time consuming and cumbersome for all
parties involved. In our current extradition practice, the
United States is certifying and authenticating documents both
in accordance with the new Canadian Extradition Act and the
requirements of the Extradition Treaty.
Under paragraph (2)(b), when the person sought has already
been convicted, documents supporting the U.S. request must be
certified by a judicial, prosecuting or correctional authority
who attests to the fact that the documents are accurate. As in
the case of a person who is sought for prosecution, this
procedure will reduce the administrative burden of preparing
documents in support of extradition requests to Canada.
Paragraph (2)(c) provides the alternative that documents
may be certified or authenticated in any other manner accepted
by the law of the requested State. This will enable both
countries to take advantage of any new changes to their laws.
Article 3
Paragraph 1 establishes that this Second Protocol shall
form an integral part of the Extradition Treaty.
Paragraph 2 provides for retroactivity, stating that
notwithstanding paragraph (2) of Article 18 of the Extradition
Treaty, the Second Protocol shall apply in all cases in which
the request for extradition is made after its entry into force
regardless of whether the offense was committed before or after
that date.
Paragraph 3 states that the Second Protocol shall be
subject to ratification, and shall enter into force upon the
exchange of instruments of ratification. It shall terminate
upon termination of the Extradition Treaty.
VI. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Second Protocol Amending the Treaty on
Extradition Between the Government of the United States of
America and the Government of Canada, signed at Ottawa on
January 12, 2001 (Treaty Doc. 107-11).
-