BC: Local Judge Approves Feds' Place In Pot King Extradition

URL: http://www.mapinc.org/drugnews/v06/n744/a05.html
Newshawk: Educators For Sensible Drug Policy: http://www.efsdp.org
Votes: 0
Pubdate: Wed, 07 Jun 2006
Source: Nelson Daily News (CN BC)
Copyright: 2006 Nelson Daily News
Contact: news@nelsondailynews.com
Website: http://www.nelsondailynews.com/
Details: http://www.mapinc.org/media/288
Author: Darren Davidson



WINLAW VS OTTAWA: Paddy Roberts Promises Appeal Of His Case Aimed At Keeping Justice Department Out Of His Private Charge Against Pot Seed Seller Mark Emery

A Winlaw man is vowing to continue his fight against Ottawa in a bid that could make or break the Bush administration's plans to extradite B.C. pot seed king Marc Emery to face charges in the U.S.

Paddy Roberts says he and Nelson lawyer Don Skogstad will be appealing a B.C. Supreme Court judge's decision to dismiss a motion that would have barred the federal attorney general from taking control of a conspiracy case Roberts has launched against Emery and two co-accused. The trio are facing extradition to the States on charges of conspiracy to launder money and distribute marijuana and marijuana seeds. Conviction on the charges would carry a sentence of at least 12 years.

Roberts called Justice Robert Crawford's ruling nonsense. The decision was made two weeks ago in Nelson.

"The United States government got the decision they wanted," Roberts told the NDN. "There was nothing in statutory law that supported Justice Crawford's position. The Criminal Code of Canada does not allow the Attorney General of Canada to intervene in these proceedings."

Roberts and Skogstad are trying to keep the feds out of the case because of their expectation that Ottawa will try and stay the pair's proceedings against Emery, clearing the way for his extradition.

International law states that a person can't be tried in one country if he or she is facing identical charges in another. The charges Roberts has brought before Emery and co-accused Michelle Rainey and Greg Williams are essentially the same as those the U.S. have pressed.

The chairman of the nationalist Bloc British Columbia party and a well-known watchdog of the RCMP and judicial system, Roberts admits that the ruling would have been appealed by either he or federal prosecutors, depending the Crawford's decision. His appeal will be filed with the B.C. Court of Appeal.

In all likelihood, the final ruling on Roberts' fight to keep Ottawa out of the Emery case will be settled in the Supreme Court of Canada, a process that will take at least a couple of years, Roberts estimates.

"And nobody's going anywhere until this is settled."

According to the Globe and Mail, the federal Department of Justice tried to dismiss the charge earlier this year, but Roberts filed a legal motion that argued a Criminal Code offence, such as conspiracy to violate the laws of another country, may only be prosecuted by provincial Crowns. The province has said it has no stand on the case.

In an oral ruling released on the eve of the long weekend the Globe noted, Crawford sided with the arguments put forward by the federal government. The judge found that since the alleged conspiracy is drug-related, the prosecution is within the jurisdiction of the federal Justice Department.

"It seems quite clear that it gives the United States government, through the agency of the federal Minister of Justice, approval to interfere in the administration of justice in B.C.," Roberts told the Globe.

"Normally our courts are not supposed to render judgements based on political considerations," Roberts added. It wouldn't have taken the judge more than half an hour to write a decision granting the prohibition, and that decision would have been unappealable. But that didn't happen."

The federal Justice Department in Vancouver has refused comment on the case.

- -with files from the Globe and Mail.



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MAP posted-by: Steve Heath

Paddy PLEASE don't give up!

I KNOW you can do something to Appeal this atrocity!

I don't want to see Michelle spend time in a horrible, disreputable Federal U.S Women's Prison on her own - let alone the others going thier way...

You are doing an amazing job Paddy.

Make them think outside of the box.

You can do it!

Love and a squish,

Alison
xx

Keep up the GREAT work Paddy. Your arguements are backed up by the law and I believe that the Appeals Court will rule in our favor!

I do not understand Canada`s willingness to grant auyhority to the US in this case.Can anyone to the North explain Canada`s reluctance to reject US demands that Marc be extradited to face charges here? If any crimes were committed,they were done on Canadian soil,Yes? Were they not operating a business and paying taxes on the proceeds,Yes?Has Marc become an embarassment to your government in some way that makes it more expediant to give him up?Personally, I doubt very much if the Canadian government was unaware of the nature of the BC3 buisness .

I believe it has to do with international extradition treaties signed by the U.S. and Canada wherein they agree to hand over criminals that have broken the laws of the country requesting the extradition.

The U.S. has always acted as it were the police of the world and is not afraid of going into other sovereign countries and dictating U.S. laws.

I just signed up with L.E.A.P. ,I hope I can help.There is a lot about this drug war that stinks to high heaven.There are just too many things that do not add up.

Give Up? No, that won't be happening.

We're still waiting for Justice Crawford's decision in writing to try and be specific on grounds of appeal. If we don't get them Monday, we will have to file the appeal on general grounds of errors in law to get in under the time deadlines.

I am going to try and contact Tom Berger, the former justice of the B.C. Supreme Court, to make him aware of what the issues are and ask him if he might assist our team in the appeal.

No BC Court has ever approved federal involvement in the prosecution of criminal law, except under compulsion from superceding Supreme Court of Canada judgements. The courts in BC recognized our constitutional arrangements as being divided in respect to criminal law. The division was between the federal power to make criminal law, and the provincial power to control the administration of justice, which included as a primary function policing and the prosecution of criminal law charges.

It wasn't an issue until about 1970, when the feds changed the Criminal Code, which sets out all procedures by indictment, to create a role for a federal AG. The provincial AG's said "Hey, what the hell?" and in a number of provinces they challenged the change in the provincial court systems.

Here in BC, the main case that dealt with the issue was R. v. Kripps Pharmacy. It went all the way to the BC Court of Appeal. The central judgement was in the Supreme Court and was given by then Justice Tom Berger. It was later confirmed by the BC Court of Appeal.

Those judgements were overuled by the Supreme Court of Canada as a result of another judgement they made the same day about the same issue, but not quite the same issue.

Anyways, here is the key section of Tom Berger's judgement...

------------------------------------------



In Hauser, Dickson J. at pages 507 and 508:


"...The import of the federal case is to be found in para. 18 of the factum of the Attorney-General of Canada and I cannot do better than to quote it:


18.

By whom and in what circumstances proceedings for violations of the criminal law may be instituted, conducted, terminated, appealed, etc., are matters clearly relating to the criminal law and procedure in criminal matters within the meaning of Head 27 of Section 91 of the British North America Act. The authority to make laws in relation to classes of subject must be taken to carry with it the authority to determine the manner in which those laws shall be enforced and of the essence of enforcement is authority to prescribe the necessary rules pertaining to the initiating and conduct of any litigation required for the purposes of enforcement.

So, here he lays out what the feds say, that if they are to make the law, they must have the power to enforce it.



In the absence of s. 92(14) I would agree with that submission. It seems reasonable that, unless a contrary intention appears in the British North America Act, 1867, authority to make laws in relation to a class of subject should carry with it the authority to enforce those laws. The difficulty facing the federal Crown, however, is that administration of justice is an exclusive provincial head of power and it includes the administration of criminal justice. That was decided in Di Iorio and Fontaine v. Warden of Common Jail of Montreal and Brunet (1976) 33 C.C.C. (2d) 289, 73 D.L.R. (3d) 491, (1978) 1 S.C.R. 152. The power to administer criminal justice includes the power of enforcement. That has been demonstrated by a century of experience during which the Provinces enforced the criminal laws. And the power of enforcement includes, in my view, the conduct of enforcement proceedings. Parliament has power to make criminal law and to define procedures, but the Provinces are empowered under our Constitution to enforce those laws in a manner consistent with those procedures."


¶ 40 It is also noted under the heading of "inherent execution" power, Dickson J. in Hauser at 511 states:


"...The quarrel here is not over the right of Parliament to enforce its own enactments but rather, and this bears repeated emphasis, the attempt by Parliament to exclude the Provinces from the right to supervise criminal prosecutions."


¶ 41 In essence, the various attempts to place final executive power in the Federal Attorney General, while it may be desirable in certain situations, cannot be done in the field of criminal law and still maintain the over-riding authority of the provinces under Section 92(14).

¶ 42 I am not unaware of the practical administrative difficulties my conclusion will create, if I am right. Those same difficulties, however, arose pending the decision in Hauser. The Provincial Attorney General simply authorized federally employed prosecutors to act on his behalf. That is not a mere legal tactic to patch up a defect in the constitution. That appointment is the proper exercise of the supervisory function of the Provincial Attorney General in the administration of justice in the province as that duty and right is assigned to him under Section 92(14) of the British North America Act. If he is dissatisfied with the manner of enforcement, he withdraws that authority.

----------------------------------------------------

The Attorney General of BC has not given any authority to the AG of Canada in the Nelson charges.

Then this should be going all the way to the supreme court of BC.
offer that man a pen.

Again I will say thank you for your continued support and not giving up on a good Irish\Ukrainian girl!!! We will prevail!
xxooMichy

Yes, all 3 of you will prevail, and we're all behind you guys.

Dez