A unique argument is before the Ontario Court of Appeal (OCA) regarding the case of an Ontario Aboriginal facing extradition and criminal charges in Minnesota, United States. The case has advocates arguing the Canadian government’s unique obligation towards the Aboriginal community, under s.718.2(e) of Canada’s Criminal Code, should prevent an extradition where the accused faces a severe criminal sentence which he would unlikely face in Canada, due to his Aboriginal status.

The Case

The case involves 24- year-old Zachary Leonard of Ontario’s Rainy River First Nations. Leonard was arrested on 5 April 2006 when entering the United States at Fort Frances in a van driven by his cousin, Stacy Peterson. The charges allege that 46,000 ecstasy tablets were hidden inside the vehicle.

Subsequently, Leonard, Peterson, and four others were charged with drug smuggling in Minnesota. The Toronto Star reports Leonard was never the focus of the investigation, according to the Royal Canadian Mounted Police, but rather it was his cousin Peterson and four other “masterminds”.

However, while on bail, Leonard escaped from a Minnesota halfway house in November 2006, and returned to his Manitou Rapids reserve. In July 2010, the Ontario Superior Court issued an extradition order for Leonard, after which Canadian Minister of Justice Rob Nicholson ordered him surrendered.

After failing to get Minister Nicholson to intervene, Leonard’s lawyers are now appealing the extradition order to the OCA.

The Argument

Leonard’s lawyers, Ms. Marlys Edwardh, Ms. Jessica Orkin and Mr. Robert Sinding, will argue before the OCA that, as an Aboriginal, Leonard has an “enhanced right” against extradition on the basis of his constitutional rights.

The main crux of this argument falls on the fact that Leonard’s sentencing in Canada would require courts to take his Aboriginal status into consideration while sentencing. This is something which will be irrelevant if he is extradited and prosecuted in the United States.

And it is a valid argument given the extreme sentencing differences. If Leonard is convicted in the United States, an American court would impose a minimum sentence of 15 to 20 years with no consideration of Leonard’s Aboriginal context.

Yet in Canada, as the Toronto Star speculates, Leonard would likely receive a sentence of less than two years and be able to serve it in the community given that his alleged crime does not involve violence and he does not have a criminal record.

The explanation for this significant difference is simple: in Canada, judges must approach sentencing of Aboriginals differently for two reasons.

The first reason is an amendment to the Criminal Code under s. 718.2(e), which now states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:… (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Secondly, the Supreme Court of Canada (SCC) interpreted and provided mandatory guidelines for s. 718.2(e) in R v. Gladue, [1999] 1 SCR 688. In Gladue the SCC held that s. 718.2(e) alters the method of analysis a sentencing judge “must use in determining the nature of a fit sentence for an aboriginal offender”. In providing the clarification to s. 718.2(e), the SCC laid out thirteen guidelines for interpreting s. 718.2(e), though recognizing Aboriginal status on its own is not enough to warrant more lenient sentences.

Among the guidelines, the SCC held that s. 718.2(e) has an important remedial purpose and it “creates a judicial duty to give its remedial purpose real force.” Nevertheless, the SCC held that individual considerations should guide sentencing judges in deciding a “fit sentence”, but with consideration to the social and historical history of Aboriginal group, as well as alternative sentencing procedures in connection with an accused’s Aboriginal heritage.

Thus, Leonard’s lawyers argue that these guidelines, which must be applied in Canadian courts but irrelevant in United States’ courts, should result in an extradition exemption for Leonard under the Treaty on extradition between the Government of Canada and the Government of the United States of America.

How Far Should s. 718.2(e) Go?

This case poses some very difficult and complex questions for the Canadian judicial system. There are strong public policy reasons for refusing Leonard’s extradition request by the United States, especially given the Canadian government’s clear recognition of its unique obligation towards Canada’s Aboriginal population in regards to criminal sentencing.

In criminal cases, this obligation has been entrenched in s. 718.2(e) of the Criminal Code, the Gladue decision, as well as restorative justice initiatives across the nation. An acknowledgement of and reasons for this focus on Aboriginal restorative justice are given here by Correctional Services of Canada.

For instance, the drastic overrepresentation of Aboriginals in Canadian prisons has prompted the Canadian government to address the issue. Statistics Canada reported in July 2009 that Aboriginals represent only 3.1% of the Canadian population yet an overwhelming “17% of adults admitted to remand, 18% admitted to provincial and territorial custody, 16% admitted to probation and 19% admitted to a conditional sentence”.

However, as the Gladue decision emphasizes, these obligations and concerns must also be balanced against other considerations. In the current context, several alternative factors are at play, including international comity (requiring us to extradite those facing charges elsewhere for our requests to be well received), the fact that Leonard is charged with a serious crime in the United States, and the fact that Leonard illegally fled the United States while on bail.

It should be noted that in Gladue the SCC held that “particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders”. And it is true that Leonard is facing a very serious charge in the Minnesota.

Yet it would not be the first time that an extradition to the United States was not granted. Several cases have already dealt with exemptions to the Treaty on extradition between the Government of Canada and the Government of the United States of America, usually in regards to the death penalty, such as United States v Burns, 2001 SCC 7, Kindler v Canada (Minister of Justice), [1991] 2 SCR 779, and Reference Re Ng Extradition (Can.), [1991] 2 SCR 858. Furthermore, an accused successfully set aside an extradition order after proving a s. 7 Charter breach in United States of America v Cobb, [2001] 1 SCR.

Needless to say the OCA will have a difficult job balancing Canada’s competing interests and obligations. While Leonard’s advocates will have a difficult task in proving his case, they also have some compelling reasons to have their request granted, especially in this particular context. A potential two year sentence provides a strong contrast with a 15 to 20 year sentence in the United States; Leonard might have been unaware or uninvolved with the drug trafficking; and Leonard has no prior criminal record or violent history. These reasons are heightened by a statutorily entrenched duty to take the Aboriginal context into consideration.

This case may well provide some interesting legal clarifications on the interpretation of s. 718.2(e) and its effect upon Canada’s international obligations, and may, therefore, pave a path to the SCC.