Pubdate: Wed, 03 Aug 2005
Source: Globe and Mail (Canada)
Copyright: 2005, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Campbell Clark
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)

JUSTICE MINISTER FACES PRESSURE TO BLOCK EXTRADITION

OTTAWA -- Justice Minister Irwin Cotler will face calls to reject the U.S. 
request to extradite a Canadian marijuana activist over the possibility of 
a stiff sentence for a crime that is no longer prosecuted here.

Mr. Cotler's officials approved the investigation and arrest of Marc Emery, 
who sells marijuana seeds over the Internet, but the minister is likely to 
face demands that Mr. Emery be charged in Canada or set free.

York University law professor Alan Young, a marijuana-legalization activist 
who is expected to join Mr. Emery's legal team, said he would argue that 
the charge of trafficking marijuana seeds is obsolete here because it has 
not been prosecuted since 1968 -- and that even if a Canadian court 
approves the extradition, Mr. Cotler should reject it.

Usually, a justice minister or his officials rubber-stamp court-sanctioned 
extradition requests, and the United States would likely consider it an 
"affront" if Canada refused an extradition request that had received court 
approval here, Mr. Young conceded.

But opponents of the extradition could argue that this is an instance where 
legal co-operation with the United States under the Mutual Legal Assistance 
Treaty has gone awry.

"[Mr. Emery] still has another kick at the can in trying to convince Irwin 
Cotler that this is a case where mutual legal assistance is not operating 
properly," Mr. Young said.

Mr. Cotler's communications director, Denise Rudnicki, did not return 
repeated calls yesterday, even as a British Columbia court granted Mr. 
Emery bail in one of the most controversial extradition cases Canada has 
seen in years.

Mr. Emery was investigated under a Canada-U.S. legal treaty that is used 
regularly to pursue cross-border criminals or fugitives.

By Canadian law, a foreign country can request that a suspect be extradited 
only if they are charged with committing acts that are also crimes in Canada.

Mr. Young said that a law prohibiting the sale of viable marijuana seeds -- 
those that can grow into plants -- is technically on the books since a 1968 
decision that they are a controlled substance, like the plant's leaves and 
buds. However, no more recent case has been reported in law journals.

In the United States, however, Mr. Emery could face a minimum sentence of 
10 years, and a maximum of life in prison if found guilty.

"Suddenly, it doesn't look like the same crime," Mr. Young said.

Mr. Young, a long-time friend of Mr. Emery, said that it is usually 
difficult to fight an extradition request because the standard for evidence 
is relatively low.

After Canada receives a formal extradition request, a judge hears evidence 
- -- usually only affidavits from prosecutors. A judge decides if the 
evidence would be strong enough to put the suspect on trial in Canada, but 
does not need to determine if a conviction would be likely here.

But Mr. Young said he would argue that the Canadian and U.S. crimes of 
trafficking pot seeds may be the same technically, but are actually 
different -- like the difference between manslaughter and murder -- so that 
extradition cannot be applied.

If Canada believes it is still a crime, then Mr. Emery should be prosecuted 
here first, he said.
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