Canada’s Extradition Law: A Dangerous Back-Door Bludgeon for Abusive Ex-Spouses

By Matthew Behrens

            The high-profile Vancouver arrest of Huawei chief financial officer Meng Wanzhou once again shines a spotlight on Canada’s problematic Extradition Act, a draconian piece of legislation which has also subjected Ottawa University professor Hassan Diab to a decade-long, ongoing Kafkaesque nightmare based on false allegations.

            Regardless of how one feels about Huawei’s role in facilitating state surveillance and repression – if anything, it is that history which should give rise to actionable court charges – Wanzhou and her lawyers have no doubt already discovered how few rights apply when subject to an extradition request.

            That feeling of utter helplessness generated by a Canadian government accepting at face value any request that comes its way from an extradition partner – no matter how unfair, inaccurate, politically biased, or rights-denying – is one currently being experienced by a number of women who have been subjected to vindictive actions initiated from abroad by violent ex-spouses.

No Gender-Based Impact Analysis

            While the Trudeau government has long boasted of employing a gendered lens to enact its policies, that analysis has certainly not applied to extradition, an area where Justice Minister Jody Wilson-Raybould continues to rely on rape myths and standard sexism to reject the pleas of abuse survivors. This failure of the Trudeau government to respect and honour women’s lives in this context also places additional women and children at risk as well. Indeed, as a member of the group Women Who Choose to Live, I am aware of at least half a dozen cases of women who feel trapped in the cycle of abuse because any move they take to protect themselves and their children from abusive fathers and husbands who live in other countries could make them subject to extradition requests, forced removal from Canada, and overseas detention.

Perhaps the most famous example of this failure to apply a gender-based impact analysis in the extradition context is the still outstanding case of MM, whose name is subject to a publication ban. MM is a Canadian citizen fighting extradition to the United States, where she faces multiple charges for having rescued her kids from an abusive father.

In 2010, MM’s three young children (aged 9, 11 and 14) escaped from their father – who at the time had a sole custody order (obtained under shady circumstances) that prevented MM having contact with the children – and sought refuge in an abandoned house, sleeping on a concrete garage floor. Fearful of going to jail if she took the kids in, MM originally rejected their pleas for shelter. But recognizing the children’s increasingly desperate circumstances, MM’s adult daughter from a previous marriage packed her and the kids in a car and drove them to Canada.
            MM was arrested two days shy of Christmas in a Quebec women’s shelter, where the RCMP had tracked her down by tracing the children’s internet log-in passwords. At the time of the arrest, a Mountie acknowledged that the children "expressed their fear of the father.”
            Since then, MM’s legal journey has traveled the often oblique world of extradition law. After winning in Quebec Superior Court in 2011 – Madame Justice Carol Cohen dismissed the evidence as “so defective and unreliable that it is not worthy of consideration” – the Harper government appealed on jurisdictional grounds. In December, 2015, the Supreme Court of Canada, in a bitterly divided 4-3 decision, upheld the extradition, with the dissenting justices calling the majority’s reasoning “Kafkaesque.”

Rescuing Children Not a Crime

Writing for the minority, Justice Rosalie Abella pointed out that “the defence of rescuing children to protect them from imminent harm does not exist in Georgia [and] the mother will not be able to raise the defence she would have been able to raise had she been prosecuted in Canada.” This contradiction violates a cornerstone of extradition law, the “double criminality” requirement that the Supreme Court acknowledges is a process that ensures Canada is “not embarrassed by an obligation to extradite a person who would not, according to its own standards, be guilty of acts deserving punishment.”

A public campaign to convince the then newly-elected Liberals to reconsider the case included MM’s two-week jailhouse hunger strike, which ended on December 23, 2015 when freshly-minted Justice Minister Jody Wilson-Raybould agreed to examine new information not available to her predecessor. But even with the extensive new submissions put before her, including personal appeals from MM’s kids as well as expert U.S. opinion on MM’s inability under Georgia law to mount a proper legal defence, Wilson-Raybould said no.

In a terrible decision, one that was riddled with the types of misunderstandings that continue to plague anyone who has survived abuse, the Trudeau government showed how little it understands the reality of and limited choices available to battered women and abused children. Despite abundant evidence of the father's abuse of the children, the Justice Minister complained that in saving her kids and taking them to Canada, MM had “deprived [the father] of the reasonable ability to visit his children,” even though the children were clear that they wanted no contact with him (see the children's own statement on the case here). The decision bought into repeated myths about abuse survivors (claiming the fact that children allegedly did not report abuse to guidance counselors and attended school regularly casts doubt on their allegations of abuse).

 The decision further attacked MM for not seeking legal remedies (as if access to good counsel and the courts in the US is easy and affordable)  and for not speaking with police (how many violence survivors have heard that line?)

While Wilson-Raybould could refuse MM’s surrender under Section 44 of the Extradition Act, which allows the Minister to reject any request that is “unjust or oppressive having regard to all the relevant circumstances,” she instead has chosen to keep MM under draconian house arrest, from which she now awaits a decision from the Quebec Court of Appeal. It's been over 12 months since the court heard a judicial review of the ministerial decision.

Trudeau’s Minister of Justice has also continued to ignore the words of Supreme Court Justice Abella and two of her Supreme Court colleagues, who concluded:  “At the end of the day, there is little demonstrable harm to the integrity of our extradition process in finding it to be unjust or oppressive to extradite the mother of young children she rescued, at their request, from their abusive father. The harm, on the other hand, of depriving the children of their mother in these circumstances is profound and, with respect, demonstrably unfair.”

Instead, Wilson-Raybould has rationalized the choice to break up the family by saying “many families who lose the assistance of a family member because that person is detained in custody find that they have to make changes to manage their new reality.”

Extradition: An Abuser’s Bludgeon

            More recently, the case of KT – her real name subject to a publication ban – has again shone a light on how easy it is for an ex-spouse to continue persecuting a woman and their children under the guise of extradition. Indeed, as noted by the BC Supreme Court, KT imputes to her ex-husband “a goal of wishing to harm her, using the extradition proceedings and a potential prison sentence as a bludgeon.” Had the court applied a gender-based impact analysis, perhaps it would not have dismissed as “irrelevant” proposed evidence about the best wishes of the children (who clearly do not wish to be forcibly returned to the father). Also dismissed was the affidavit of the survivor of male violence against women, KT herself, whose documentary evidence of bruising and UK police reports illustrate a history of assaults that include being hit by her ex-spouse’s car.

            Married in Britain in 2000, Canadian-born KT reports that she endured years of physical and psychological abuse. Following a divorce, she was awarded custody of two children, with the father retaining visitation rights. The order stipulated that KT could take the children out of the UK for periods of up to 28 days.

            When she decided to permanently move back to Canada in October, 2015, the two children came with her to see where she would be living and to help her adjust to life back in Canada. Both boys had the full intention of returning to the UK to continue with their schooling. But while the boys were in contact with the father via skype shortly after their arrival in Canada, things turned sour, with the father becoming angry and threatening to have the boys arrested. When it became apparent that the boys were questioning whether they had to go back to the UK, the father initiated court proceedings to have the children apprehended and immediately returned to the UK (even though KT had the right to have the boys with her for up to 28 days).

            The father brought a Hague Convention application to forcibly return the boys (then aged 14 and 12), initiating a protracted series of back-and-forth court decisions (one of which found that the voices of the children had not been properly considered in this process) and subsequent police actions that traumatized the boys. The father’s actions infuriated the boys who, without KT’s knowledge, moved to an aunt’s house in BC to avoid their father.

Eventually, the father provided consent to the boys remaining in Canada on the basis that he would have access to them and that the boys would be allowed to visit the U.K. However, as often happens in such disputes, negotiations failed to resolve all outstanding issues, and an extradition request (which would not result in the return of the boys, ironically, but which would certainly punish the mother, KT) was initiated from the UK by the abusive ex-spouse.

            Canada’s Justice Minister, Judy Wilson-Raybould, signed off on the request, and the issue of whether the extradition for alleged child abduction could proceed was sent to the courts. Among the pieces of “evidence” in the British ROC – “Record of the Case,” which is always presumed to be reliable by Canadian authorities, no matter what is in it – were such hearsay pieces as the following:

         “a next door neighbour in the U.K. heard ‘a lot of movement’ outside K.T.’s home on the night of October 17-18, 2015, and witnessed a number of vehicles coming and going;  that neighbour also saw a moving van arrive on October 19 and remove six to eight large packing boxes labelled, ‘[T.] Calgary’.”

            But the BC Supreme Court refused to allow KT to adduce any evidence to prevent the extradition. For example, the history of the abuse she suffered was deemed not relevant. The Court also refused to consider affidavits from the children that “depose that they do not wish to live in England ever again.  They depose that they have asked [the father] several times if they could visit him in the U.K. during school holidays, the eldest once even offering to pay for his own flight.  However, [the father] declined each time, saying more than once that he wants to see the results of the extradition proceedings.”

            In other words, extradition was clearly, as KT explained, being used by her abusive ex-husband as a bludgeon. The BC Supreme Court even refused to consider evidence from a social worker who “details the boys’ affection for and commitment to their mother, and their guarded attitude toward their father.  He reports that despite more interviews with social workers and others in England than the boys could keep track of, they felt that the professional community there did not listen to them.  [He] reports that the boys have expressed clear and unequivocal views that they wished to remain in Canada with their mother or, if not with her, with their aunt.  The boys ‘believe their future is here and there is little for them in England’, and they question the apparent attempt of the legal system to trump their views and their voiced opinions.”

            In her reasons for upholding the surrender of KT to the UK, Wilson-Raybould said  that she could only turn down the extradition if the conscience of Canadians would be shocked or that it would be contrary to the principles of fundamental justice. However, no evidence is provided that she has tested whether Canadians would have their conscience shocked by the details of this case. Apart from the failure to apply a gender-based impact analysis to this case, how did the extradition even get off the ground when it was clear that the alleged facts which underpin the allegations show there was no violation of the law? Indeed, the alleged at of “child abduction” was not in fact an abduction because the kids were overseas within the terms of the custody order, the father was able to communicate with the boys, and the mother attempted to have the boys communicate with the father even after he had threatened to have them arrested.

            In a world where spiteful men will do anything to punish the women survivors who have escaped them, such cases as MM and KT send a very clear and dangerous message to abusers:  Canada’s “feminist” government will open the door to another round of judicially-sanctioned battering under the guise of respecting extradition treaties.

Overhauling Extradition Act

            As MM and KT await their fates, efforts continue to force the Trudeau government to overhaul the Extradition Act and halt further proceedings until the process is brought into line with concepts like human rights law, fundamental justice, and procedural fairness. Unfortunately, Wilson-Raybould and a battery of Justice Department lawyers – some of whom are implicated in clearly unsavoury practices in the Hassan Diab case – seem unmoved by the countless examples of abuses carried out under the umbrella of the Extradition Act. 

Meanwhile, although the federal government spouts disingenuous language about rule of law and independent judiciaries in the high-profile Wanzhou U.S. extradition case, foreign governments rest easy in knowing that Canada will almost always refuse to uphold the rights of any citizen, refugee, or foreign national sought under extradition. Over the past decade, Canada has surrendered individuals in 90% of the cases. Whether MM and KT get added to those statistics will ultimately depend on whether public pressure can force a government that says its respects and honours women to put its rhetoric into action.