Conservatives' Emery Extradition Shocks the Conscience of the Nation

Canada’s Justice Minister, Conservative MP Rob Nicholson (member for the riding of Niagara Falls) today decided to surrender Canadian citizen Marc Emery for extradition to the United States. Arrested on Canadian soil in 2005, and on bail since then, Emery is wanted by America for having sold cannabis seeds to Americans and others around the world via Canada post between 1998 and 2005.

Although selling cannabis seeds is technically illegal in Canada, Canadian authorities have rarely ever charged any of the numerous seed sellers doing business in Canada, in broad daylight. And the few that have been charged – including Emery – have received only small fines (in the $200 range) or community service as a sentence. Nicholson’s surrender of Emery was unconditional, and – though he was authorized by Canada’s Extradition Act to seek assurances that Emery would not be prosecuted except for the less serious offenses to which he has already agreed to plead guilty – Nicholson shockingly chose not to do so.

In his written reasons, Nicholson made the following conclusions:

I have decided to order Mr. Emery’s unconditional surrender to the United States on the American offences for which his extradition was sought.

The key word in that quotation is “unconditional”. The second of three steps in an extradition from Canada is the obtaining of a “committal order” from a judge. Emery is facing three U.S. charges, two of which include 10 year mandatory minimum sentences. In September of 2009, Emery and US prosecutors agreed to a plea deal: if surrendered by Canada’s Justice Minister, Emery would plead guilty to the one charge having no mandatory minimum, and both sides would seek from the sentencing judge only a 5 year term of imprisonment. In his submissions to the Justice Minister dated January 4, 2010, Emery’s lawyer asked, in part, that the Justice Minister exercise his authority under subsection 40(3) of the Extradition Act to make Emery’s surrender conditional upon the USA first assuring the Minister that Emery would be prosecuted only of the offence to which he agreed to plead guilty. Nicholson flatly refused to even bother seeking such an assurance. He thereby implied, essentially, that Canada has no objection if the U.S. wants to prosecute Emery for all three offenses and lock him up for the rest of his life: Emery is 51 years of age, such that 20+ years in prison would probably amount to a life sentence without parole.

Nicholson went on to say:

As Minister of Justice acting under section 40 of the [Extradition] Act, my role in the extradition process is essentially political in nature…

The Extradition Act does not require the Justice Minister to extradite anyone. Its language is permissive, not imperative. Murderers, pedophiles, you-name-it: nothing in Canada’s Extradition Act requires Canada’s Justice Minister to surrender a person for extradition. As Nicholson said, his role is “essentially political”: he is free to deny the surrender of a person and to base such a decision upon political considerations.

However, the Extradition Act does prevent the Justice Minister from deciding to surrender a person where the person is being prosecuted for his political beliefs/conduct, or where such beliefs/conduct are such that he would face prejudice in the country seeking the person’s extradition. Nicholson knows, or ought to know, that all of Emery’s seed selling efforts were a political campaign, the proceeds from which notoriously were spent on anti-prohibition campaigns by mainstream politicians and political parties, cannabis legalization groups, U.S. cannabis legalization ballot initiatives, and court cases in which marijuana legislation was challenged. A full-length documentary – “The Principle of Pot” – was released this year, and media releases provided the Justice Minister and all of Canada’s 308 MPs with links to the documentary, which is still available for free on youtube (you can watch all of it, Part 1 and Part 2, on Paul McKeever’ youtube channel). In short: Nicholson knew, or ought to have known before making his decision on Emery’s surrender, that Emery’s political beliefs and conduct are the actual target of U.S. (and, arguably, Canadian) authorities, and that Emery will – at the very least – face extreme prejudice in the USA because of his political beliefs and political campaigns. As the person who researched and produced the aforementioned documentary, I am left with the distinct impression that Nicholson either disregarded the history, or disregarded the Extradition Act‘s prohibitions.

Nicholson continues:

In my view, it is appropriate in the circumstances of this case to yield to the superior interest of the United States in prosecuting this matter.

Given his “essentially political” role, the fact that the Justice Minister considers the United States to have a “superior interest” in prosecuting Marc Emery is essentially a political statement, not a legal one. Two things need to be said about the Minister’s statement in that regard.

Canada not only knew Emery to be selling seeds, but gladly received the tax revenues voluntarily paid by Emery, who openly declared himself to be a cannabis seed seller in his tax returns. Canada demonstrably has had no interest in prosecuting Emery in Canada. With a majority of Canadians being in favour of outright legalization of cannabis, and with sentencing precedents of mere fines or community service for seed selling in Canada, Canadian authorities have seen no point in prosecuting Emery in Canada.

That is not to imply that Canadian authorities do not want Emery prosecuted. The Vancouver Police Department sought Emery’s prosecution in 2003, but Canadian prosecutors refused to prosecute Emery, presumably because cannabis seed selling is such a minor and rarely-prosecuted offense in Canada. Thereafter, Vancouver police shared their investigation with US authorities, knowing full well that US prosecutors would have every incentive and ability to lock Emery up for the rest of his life or, worse, to sentence him to death. In the USA, the death penalty is available for individuals convicted of the crimes with which Emery is charged, due to the sheer quantity of seeds sold by Emery. Given that the Justice Minster refused to restrict the surrender to just the relatively minor charge, it shocks the conscience that Conservative Justice Minister Rob Nicholson surrendered Emery unconditionally without seeking any assurances that a death penalty would not be imposed. To this author, it looks more like the Conservative government of Canada is the one having the “superior interest” in having Emery prosecuted in the USA.

Given the dark and smelly history of the investigation into Emery’s seed campaign – an investigation commenced 8 years after Vancouver police knew of Emery’s seed selling, and only after Emery humiliated Vancouver police and visiting US Drug Czar John Walters, in 2002 (readers can see the details of how this all went down in the “The Principle of Pot” documentary) – the following part of the Justice Minister’s statement is something that, in my view, could be made only negligently or with insincerity:

While a Canadian prosecution was possible based on these allegations, I accept that the Canadian authorities have yielded in good faith to the interests of the American authorities in prosecuting this matter. In the circumstances of this case, I see nothing improper in this regard. Neither conclusion is merited in this case…I conclude that my refusal to seek assurances would not make Mr. Emery’s surrender to the United States to face the outstanding charges “shocking to the conscience”. (emphasis added)

“Shocking to the conscience” is a legal phrase that relates to a situation in which the country seeking a person’s extradition would subject the person to procedures or penalties that would breach the principles of fundamental justice enshrined in s. 7 of Canada’s Charter of Rights and Freedoms. Essentially, Nicholson is implying that, in his opinion, it does not “shock the conscience” to see a Canadian citizen locked up potentially for the rest of his life – or sentenced to death – for an offence for which a Canadian would face only a small fine or community service were he charged and convicted in Canada. In my view, Nicholson’s opinion itself shocks the conscience of any person on this globe who deserves to be regarded a Canadian. Nicholson’s view about what is a just penalty for Emery is not merely at odds with the Canadian understanding of fundamental justice, but is obscenely blood-thirsty, mean-spirited, and malicious.

In his “essentially political” role, Nicholson concludes that:

…Mr. Emery’s unconditional surrender to the United States on the offences for which his extradition was sought would not be unjust or oppressive under all of the circumstances.

Consider that the fine for littering is, in many Canadian towns, higher than the fine Emery would be likely to face were he charged and convicted, in Canada, for selling Cannabis seeds. It burdens the mind to figure out just what would be unjust or oppressive, in Rob Nicholson’s view, if he figures it right to sentence a Canadian to life imprisonment or death for an offense regarded, in Canada, as less offensive then failing put ones coffee cup in a garbage pail.

In my view, there is no more accurate moral assessment of Rob Nicholson’s decision than that Rob Nicholson committed a disturbingly evil act today, arguably for no better reason than to keep a few of the Conservative Party’s radical, hard-core, wanna-be Americans happy. The blood is on his hands, and on that of Stephen Harper’s Conservative Party, which clearly gave Nicholson tacit permission, if not an order, to surrender Emery.

The Conservatives had better hope that Liberal Party leader Michael Ignatieff and NDP leader Jack Layton remain incompetent in the lead-up to the next election because, if either of them gains the courage, masculinity and spirit of Pierre Trudeau and stands up for Canadian sovereignty, for moral goodness, and for Canada as we knew it prior to today, the Conservatives will be sent packing in the next federal election…packing, with a one-way ticket to the USA, gladly paid for by the Canadian voter.