FTD_Vol34_No3_web

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UNITED STATES OF AMERICA V. LEONARD: WHY GLADUE PRINCIPLES MATTER IN EXTRADITION
obligation to make his own assessment
as to the feasibility of prosecution in
Canada rather than relying on the
charging decision of the prosecutorial
authorities.
Background
The tragic personal and family histories
and current circumstances of both applicants
closely correspond with many of
the systemic factors identified by the
Supreme Court in R. v. Gladue, as requiring
special consideration on account of
the crisis in the Canadian criminal justice
system arising from the disproportionate
incidence of incarceration amongst
Aboriginal peoples. 3
Mr. Leonard and his cousin were
arrested entering the United States on
April 5, 2006, after customs officials
found approximately 46,000 ecstasy
pills hidden in their van. Mr. Leonard’s
cousin was driving the van. Mr.
Leonard was 18 years old at the time of
his arrest, had no adult criminal record,
and had spent for most of his life at
Manitou Rapids, the main reserve of
the Rainy River First Nations.
In the words of Sharpe J.A., Mr.
Leonard had “suffered from the litany
of disadvantages that the Supreme
Court of Canada has attributed to
Canada’s sorry history of discrimination
and neglect in relation to
Aboriginal peoples.” Many of his family
members were victims of forced residential
schooling. He was exposed to
adult substance abuse throughout his
childhood. His mother died when he
was 12 as a result of mixing pills and
alcohol. Mr. Leonard entered foster
care. He abused both alcohol and marijuana
during this adolescence. He has
two children, the eldest of which was
born when Mr. Leonard was 16.
While on bail pending extradition,
Mr. Leonard made significant rehabilitative
efforts, complied with his stringent
bail conditions and committed
himself to parenting his daughters.
Mr. Leonard faced a presumptive
sentence in the United States of 15 to
19 years’ imprisonment. The Court of
Appeal opined that in light of his age,
lack of record, peripheral involvement
in the offence, aboriginal status,
and rehabilitative efforts, Mr. Leonard
would likely receive a conditional
sentence or a short custodial sentence
if prosecuted and convicted in
Canada.
Mr. Gionet was arrested in March
2009 in relation to allegations that in
2003 and 2004 he conspired with two
Americans to import oxycodone into
the United States from Canada. Mr.
Gionet was detained pending extradition
and was held in custody for three
and a half years until the Court of
Appeal’s decision in September 2012.
Like Mr. Leonard, Mr. Gionet was
exposed to adult substance abuse and
battled drug and alcohol abuse from a
young age. Mr. Gionet’s mother was a
victim of the residential school system.
She and Mr. Gionet’s father are both
alcoholics. Mr. Gionet began using
alcohol in grade 9 and now self-identifies
as an alcoholic. He first began
using illegal drugs in grade 11. His use
of oxycodone eventually became an
addiction that resulted in the loss of his
job, his home and his vehicle, and
strained his personal relationships.
Since 2004, Mr. Gionet has worked to
overcome his addiction. Since his
incarceration for extradition, he has
benefited from substance abuse programmes
and has not used oxycodone.
While in custody he also took advantage
of programming for Aboriginal
offenders and participated in one-onone
counselling with a mental health
worker and elder at the Indian
Friendship Centre. He has, since the
time of the alleged offences, developed
a common-law relationship and
become a loving parent to two children.
Though not as stark a difference as
in Mr. Leonard’s case, Mr. Gionet faced
a substantially more severe sentence in
the United States (between six to ten
years) than he would have in Canada
(where the range would likely be
between three to five years, even if
Gladue factors were not taken into
account).
Extradition and the Charter
The process of extradition from
Canada has two stages: a judicial one
and an executive one. The first stage
consists of a committal hearing. Mr.
Leonard and Mr. Gionet were separately
committed for extradition, pursuant
to s. 29 of the Extradition Act. Both
men appealed the committal decision.
Those appeals were dismissed. 4
After an individual has been committed,
the Minister reviews the case to
determine whether the individual
should be surrendered to the requesting
state. This stage of the process is
largely political in nature, but the
Minister’s discretion is not absolute. It
must be exercised in accordance with
the Charter and the restrictions set out
in the Extradition Act. 5
Section 44 of the Extradition Act
compels the Minister to refuse surrender
when he is satisfied that it would
be “unjust or oppressive” or where
extradition is sought for the purpose of
a prosecuting or punishing a person on
a discriminatory basis.
The Minister must also refuse surrender
where it would violate s. 7 of the
Charter. The analysis under s. 44 of the
Act and s. 7 of the Charter will often
overlap. Where surrender would be
contrary to the principles of fundamental
justice, it will also be unjust and
oppressive. 6 In determining whether
surrender would violate an individual’s
rights under s. 7 of the Charter, the test
to be applied is whether ordering
extradition would “shock the conscience.”
7
In the United States of America v.
Cotroni, the Supreme Court of Canada
held that extradition of a Canadian citizen
constitutes a prima facie violation
of that citizen’s s. 6(1) Charter right to
remain in Canada, but that the infringement
can be justified under s. 1. The
Court further held that the prosecutorial
authorities and the Minister have an
“obligation flowing from s. 6(1) to
assure themselves that prosecution in
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