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Marc Emery and the Canada/US Extradition Treaty

Marc Emery is in the paper again today.  For those who’ve been living under a rock for the last week, Marc Emery is the BC marijuana activist recently indicted by Grand Jury in the United States, and then arrested in Canada by our very own RCMP.  Emery stands accused of trafficking in marijuana seeds by mail in the United States (and he freely admits mailing seeds to US customers).

Whatever your views on marijuana, this is going to be a watershed case.  It will be as important to the legalization movement as the first grants of legal rights to gay people were.  Depending on how this case goes, marijuana legalization in Canada may gain steam.

Why do I make this claim? The Canada/US extradition treaty provides for the extradition of criminals and suspected criminals in either country, to the other, when the act committed is a crime in both countries.  However, Article IV of the treaty provides for a set of specific circumstances where extradition may be denied:

(1)      Extradition shall not be granted in any of the following circumstances:

(i)      When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested.

(ii)     When the prosecution for the offense has become barred by lapse of time according to the laws of the requesting State.

(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.

You can already see how Emery’s defence is shaping up. 

  • In the August 5th edition of the Vancouver Sun he said that he gives away nearly all of the profits from the business to marijuana legalization campaigns worldwide.  Recently, for instance, he donated $50,000 to campaigns in Nevada and Alaska.  "That’s why I’m being targeted", says Emery. 
  • He compares himself to Ghandi and King.  A little over the top, but clearly he wants to be seen as a political figure, and not a lawbreaker.
  • He pays income tax on the profits to the Canadian Government — apparently $380,000 over the last four years.  He claims that the Canada Revenue Agency is fully aware of the source of this income as well.  "The federal government was aware, because I told them," he said. "They said to me, ‘You’re the only guy that’s ever admitted that.’ The federal government is more complicit than I am by far."
  • His business was raided in 1997, but no charges ever laid.

His defence lawyers will argue that

  1. De facto, trafficking in seeds is not a crime in Canada.  Although there is a law on the books, it hasn’t been enforced since 1967, and certainly the Federal Government has been aware of Emery’s activities since the mid-1990’s and chosen not to act.
  2. Emery’s extradition request is a political act, rather than a valid extradition under the treaty.  Some American’s, by the way, are already waking up to this possibility — see this article in the Seattle Post-Intelligencer

Under the treaty, the person charged to ultimately authorize the decision to extradite is none other than Minister of Justice Irwin Cotler. He has said he will not comment while the matter is before the BC courts.  If, however, he accepts the argument that the sale of seeds in Canada is de-facto not a criminal act, then it’s hard to see how the government will stem the inevitable march to full legalization.  I don’t think there’s much risk of that, though.  Cotler will sign the extradition order, just as he did in the case of Renee Boje, where there was even less evidence. 

{ 5 comments… add one }

  • Margaret Romao Toigo August 6, 2005, 12:18 pm

    I and many other Americans are working on bringing this issue to the attention of our fellow Americans as Mr. Emery’s story has not received nearly as much press here as it has in Canada.

    Thus far, the Seattle Post Intelligencer is the only US publication that reported DEA administrator Karen Tandy’s statements about Mr. Emery’s arrest delivering a significant blow to the drug policy reform movement here in the US.

    It is one thing for the DEA to exercise its duty to enforce US drug policy, but it is quite another for the DEA to attempt to hinder a political movement while doing so — and to admit it publicly, no less!

  • Jay February 10, 2008, 11:12 pm

    There was no defense put forward!
    This is hardly a watershed case.
    The lawyer knows whether the case would have succeeded or not and it wouldn't have. There is nothing here but the 10 years and hopefully out in 5.
    Grab it – it ain't gonna get better.

  • America's run b September 30, 2008, 4:18 am

    10 year mms means 10 years no such thing as out in 5!
    Mandatory sentences have No probation, No parole, No gain time, ten years means ten years period!

  • Pot Legalization August 6, 2009, 10:22 pm

    Free Marc. End the War.

  • Berne Mills November 16, 2009, 2:25 pm

    Anyone who is looking at the question of Extradition between the U.S and Canada is no doubt aware of Dr. Gary Bottling's book, 'Extradition Between Canada and the United States', Ardsley, N.Y.: Transnational Publishers, Inc. 2005. The question of Extradition has been a botch up since 1975, and reflects the "harmonization" or rather subordination of Canadian Laws and human rights to American justice system. A travesty to Canadian human rights. What disgusts me is the complicity of the current Canadian Government under Prime Minister Harper and that governments treatment of Omar Kahdr. I also think that the Marc Emery case reflects the surrender of Canadian justice to the U.S. system. As an aside I wonder why the DEA has any jurisdiction in Canada and is allowed to have offices in Vancouver and Toronto? The interference by the U.S. in Canadian parliamentary procedure during Chretien's term which stopped the Bill to Legalize Marijuana was also employed on the Mexican government. The war against drugs is lost just like the Iraq and Afghan wars.

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