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107TH CONGRESS EXEC. RPT.

2nd Session " ! SENATE 107–14

SECOND PROTOCOL AMENDING EXTRADITION TREATY

WITH CANADA

OCTOBER 17, 2002.—Ordered to be printed

Mr. BIDEN, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Doc. 107–11]

The Committee on Foreign Relations, to which was referred the

Second Protocol Amending the Treaty on Extradition Between the

Government of the United States of America and the Government

of Canada, signed at Ottawa on January 12, 2001 (Treaty Doc.

107–11), having considered the same, reports favorably thereon,

and recommends that the Senate give its advice and consent to the

ratification thereof as set forth in this report and the accompanying

resolution of advice and consent to ratification.

CONTENTS

Page

I. Purpose ........................................................................................................... 1

II. Background and Summary ........................................................................... 1

III. Entry Into Force and Termination ............................................................... 2

IV. Committee Action .......................................................................................... 2

V. Explanation of the Second Protocol Amending the Extradition Treaty

with Canada ............................................................................................... 3

VI. Text of Resolution of Advice and Consent to Ratification .......................... 8

I. PURPOSE

The Protocol amends the existing U.S.-Canada extradition treaty

in order to make changes regarding temporary surrender and the

authentication requirements.

II. BACKGROUND AND SUMMARY

The Protocol with Canada is the second protocol to the U.S.-Canada Extradition Treaty, which was signed in 1971 and entered into

force in 1976. The first Protocol to the Treaty was signed in 1988,

and approved by the Senate in 1991. The Protocol before the SenVerDate 11-MAY-2000 20:01 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 10714.XYW SFRELA2 PsN: SFRELA2
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ate was signed in January 2001, and submitted to the Senate on

July 11, 2002.

The Protocol achieves two purposes. First, it modernizes the provision on temporary surrender of a person to the requesting state

for the purpose of prosecution. Under Article 7 of the current U.S.-

Canada treaty, when a person sought for extradition is already

being prosecuted or serving a sentence in the requested state, the

surrender may be deferred until the conclusion of the proceedings

or the sentence has been served. The Protocol would add new paragraphs to Article 7 to allow for temporary surrender to the requesting state for prosecution, even if the individual has not completed

his sentence in the requested state. These type of temporary surrender provisions are common to modern extradition treaties. They

allow for prosecution of the offense closer in time to its commission,

which advances the objective of securing justice. Long delays in

commencing trial also raises the danger that witnesses will be unavailable, or that witnesses’ memories will fade with the passage

of time.

Second, the Protocol provides for simplified authentication requirements with respect to requests from the United States. This

takes advantage of changes in Canadian law regarding the admissibility of extradition documents in Canadian courts. Under Article

10(2) of the current Treaty, documentary evidence in support of a

request for extradition must be authenticated by an officer of the

Department of Justice of Canada and certified by the principal diplomatic or consular officer of the United States in Canada (in the

case of a request emanating from Canada) or must be authenticated by an officer of the Department of State of the United States

and certified by the principal diplomatic or consular officer of Canada in the United States (in the case of a request emanating from

the United States). Article 2 of the Protocol allows requests emanating from the United States to follow a simplified procedure, requiring only that evidence be certified by a judicial, prosecuting or

correctional authority. The Protocol also provides a flexible means

to take advantage of any future changes in applicable laws in either country. New Article (10)(2)(c) (added by Article 2) would

allow admission of evidence which is ‘‘certified or authenticated in

any other manner accepted by the law of the requested State.’’

III. ENTRY INTO FORCE AND TERMINATION

Under Article 3, the Protocol enters into force upon the exchange

of instruments of ratification. It terminates upon termination of the

underlying Extradition Treaty.

IV. COMMITTEE ACTION

The Committee held a public hearing on the Protocol on September 19, 2002, receiving testimony from representatives of the

Departments of State and Justice. (S. Hrg. 107–721) The Committee considered the Protocol on October 8, 2002, and ordered that

it be favorably reported by voice vote, with the recommendation

that the Senate give its advice and consent to ratification of the

Protocol.

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1 Bill C–40, Chapter 18, Part 2,—66 2 Bill C–40, Chapter 18, Part 2,—33(4)

V. EXPLANATION OF THE SECOND PROTOCOL AMENDING THE

EXTRADITION TREATY WITH CANADA

What follows is a technical analysis of the Treaty prepared by

the Departments of State and Justice.

Technical Analysis of The Second Protocol Amending the

Extradition Treaty Between the Government of the United

States of America and the Government of Canada of December 3, 1971

On January 12, 2001, the United States signed the Second Protocol Amending the Treaty on Extradition between the Government

of the United States of America and the Government of Canada

(‘‘the Second Protocol’’). The Second Protocol authorizes: (1) the

temporary extradition to the requesting State of individuals

charged with crimes there who are serving sentences in the requested State, and (2) the modification of the authentication requirements for U.S. extradition documents being submitted to Canadian authorities.

On June 17, 1999, Canada enacted new extradition legislation,

which includes a provision on temporary surrender. 1 The United

States currently has no similar law. Absent the authorization provided by the Second Protocol, surrender through the extradition

process of persons already convicted and sentenced in the country

from which extradition is sought must generally be deferred until

the completion of their sentences, by which time the evidence in

the other country may no longer be compelling or available. Pursuant to the Second Protocol, such individuals, upon the granting of

requests for their extradition, can be temporarily surrendered to

the requesting State for purposes of immediate prosecution and

then returned to the requested State for the completion of their

original sentences.

The Second Protocol also makes several technical changes that

would streamline the Extradition Treaty’s authentication provisions. Under Article 10(2) of the Extradition Treaty, documentary

evidence in support of an extradition request from the United

States must be authenticated by the Department of State and by

the principal diplomatic or consular officer of Canada in the United

States. Similar requirements are in place for requests from Canada. Canada’s June 17, 1999 extradition legislation provides that

no authentication of documents is required unless a relevant extradition agreement provides otherwise. 2 The Second Protocol eliminates the need for State Department and diplomatic/consular authentication for documents in support of U.S. requests. Instead, Article 2 of the Second Protocol allows for a judicial authority or prosecutor in the United States to provide the necessary certification

when the person is sought for prosecution. When the person sought

has already been convicted, documents supporting the U.S. request

can be certified by a judicial, prosecuting or correctional authority.

Although the Second Protocol retains the existing authentication

provisions for extradition requests from Canada, it also provides

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3 27 UST 983; TIAS 8237

4Temporary surrender provisions are found at Art. 15, United States-Switzerland Extradition

Treaty, signed Nov. 14, 1990, entered into force Sept. 10, 1997; Art. 12, United States-Belgium

Treaty, signed April 27, 1987, entered into force Sept 1, 1997; Art. 13, United States-Malaysia

Treaty, signed August 3, 1995, entered into force June 2, 1997; Art. 14, United States-Hungary

Treaty, signed Dec. 1, 1994, entered into force March 18, 1997; Art. 11, United States-Philippines Treaty, signed Nov. 13, 1994, entered into force Nov. 22, 1996; Art. 11, United StatesBolivia Treaty, signed June 27, 1995, entered into force Nov. 21, 1996; Art. 13, United StatesJordan Treaty, signed March 28, 1995, entered into force July 29, 1995; and Art. 12, United

States-Bahamas Treaty, signed March 9, 1990, entered into force Sept 22, 1994.

the alternative that documents may be certified or authenticated in

any other manner accepted by the law of the requested State. This

alternative enables both countries to take advantage of any new

changes to their laws.

The Second Protocol serves as a supplement to, and is incorporated as a part of, the existing Extradition Treaty between the

United States of America and Canada, signed at Washington on

December 3, 1971, as amended by an Exchange of Notes of June

28 and July 9, 1974, and a Protocol signed at Ottawa on January

11, 1988. 3 The temporary surrender mechanism established by the

Second Protocol is a standard feature in extradition treaties concluded in recent years. 4 In addition, on November 13, 1997, the

United States and Mexico signed a Temporary Surrender Protocol

to the Extradition Treaty Between the United States of America

and the United Mexican States of May 4, 1978. The addition of this

mechanism to the U.S.-Canada Extradition Treaty, along with the

streamlined authentication procedures, will serve to improve the

bilateral extradition process in light of modern treaty practice and

patterns of criminal behavior.

The Office of International Affairs, Criminal Division, United

States Department of Justice, and the Office of the Legal Adviser,

United States Department of State, prepared the following technical analysis of the new Treaty based on their participation in its

negotiation.

ARTICLE 1

Article 1 amends the Extradition Treaty by adding a new article

entitled ‘‘Article 7 bis’’ after Article 7. Paragraph 1 of the new article describes the new mechanism of temporary surrender for individuals serving sentences in the requested State.

Article 1, paragraph 1, of the Second Protocol sets forth the substantive authorization for the requested State to allow the temporary surrender to the requesting State of individuals who have

been found extraditable, but have already been convicted and sentenced in the requested State. Article 7 of the Extradition Treaty

contemplates only the surrender outright of such individuals, or

the deferral of their surrender until the punishment imposed

against them has been fully executed. To prevent the injustice potentially created by prolonged delays prior to surrender, the expedited transfer procedure of the new Article 7 bis provides another

option to assist both governments in the effective pursuit and prosecution of criminal defendants.

Temporary surrender under the Second Protocol applies only to

those who have been convicted and sentenced in the requested

State. It does not cover persons who are simply facing charges in

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the requested State or against whom proceedings have been initiated, but not yet completed, because of jurisdictional and speedy

trial issues that might otherwise be implicated. Similarly, as in

analogous provisions of other extradition treaties to which the

United States is a party, the Second Protocol does not apply to

those being sought by the requesting State for service of a previously-imposed sentence, because the rationale for this mechanism—the prosecution of the extraditee while the case is still viable—is not implicated for those who already have been convicted in

the requesting State.

During the negotiations, the delegations discussed the circumstances under which each State anticipates making requests

for temporary surrender. Both delegations expressed the view that

the mechanism should not be used for every case in which a person

sought in the requesting State is serving a sentence in the requested State. Rather, it is envisioned that temporary surrender

should be reserved for cases in which witnesses or evidence may

not be available in the requesting State for a later trial, the person

is serving a lengthy sentence in the requested State, the offense

charged in the requesting State is particularly serious or sensitive,

or other conditions indicate that the ends of justice will best be

served by temporary surrender.

Paragraph 1 goes on to explain that the temporary surrender of

the person shall not divest the Courts in the requested State of jurisdiction over any appeal or habeas corpus application relating to

the conviction or sentence that may be available under the laws of

the requested State. The negotiators included this language to

make clear that the temporary surrender will not impair the ability

of the Courts in the requested State to consider appropriate challenges to the original conviction or sentence in that State, or otherwise compromise the appellate process due to the defendant’s absence. This process contemplates only post-conviction appeals in

the United States, and post-conviction or post-acquittal appeals in

Canada, as the latter’s law provides for appeals of acquittals by the

Government. The negotiators concurred that only in rare circumstances will the Parties effect the temporary surrender of an

individual before the appeals process has been completed in the requested State.

Article 1(2) states that the surrendered person shall be kept in

custody in the requesting State. The negotiators agreed that the

mandatory language in the Second Protocol was intended to preclude the release of a person temporarily surrendered.

Canada’s temporary surrender legislation requires that a person

be returned within 30 days of the conclusion of the trial, unless a

relevant extradition agreement provides for another time limit.

Recognizing that 30 days from trial might not capture related sentencing proceedings and could restrict the time available to a person to consult with his attorney in the requesting State regarding

the filing of an appeal, paragraph 2 provides that a person ‘‘ . . .

shall be returned to the requested State within forty-five (45) days

after the conclusion of the proceedings for which the person’s presence was required or at another time as specified by the requested

State, in accordance with conditions to be determined by the Parties for that purpose.’’

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Article 1(2) contemplates that authorities in the United States

and Canada will consult to determine appropriate conditions for

the temporary surrender of an individual, including arrangements

for the transfer and maintenance of custody of the prisoner and the

return to the requested State, as well as any extraordinary matters

that may be relevant, such as the proper handling of individuals

requiring medical treatment or the disposition of a prisoner who

commits new crimes in the requesting State during the period of

temporary surrender. Canada’s temporary surrender law provides

for what is understood to be the rare circumstance in which the

Minister of Justice may require an assurance that the person to be

surrendered temporarily will be returned no later than a specified

date, in which case the Parties will have to decide on the timing

of the transfer. As in paragraph 1, the negotiators included language ensuring that the transfer of the prisoner back to the requested State would not divest the Courts of the requesting State

of jurisdiction over any appeal or habeas corpus application that

may be available under the law of the requesting State, relating to

the matter for which the prisoner was temporarily surrendered.

Paragraph 3 establishes that the time spent in custody in the requesting State may be credited to the sentence in the requested

State. Canadian law provides for credit without regard to conviction in the requesting State, and the Canadian negotiators felt

strongly about including such a provision in the Second Protocol.

Credit for time served may differ among U.S. state and federal authorities. Accordingly, the negotiators agreed to use the permissive

‘‘may’’ formulation in this paragraph in order to provide flexibility

for different approaches.

In light of the agreement in paragraph 3 that the requested

State’s sentence may be running during the period of temporary

surrender, paragraph 4 establishes that when the sentence that the

transferred person was serving in the requested State expires during the temporary surrender period, the requested State may waive

the return of the person and the surrender will be considered

‘‘final.’’ This provision makes administrative and economic sense,

and avoids needless transport of the prisoner back to the requested

State only to have the person finally extradited to the requesting

State.

Paragraph 5 provides that when an individual has been surrendered temporarily, convicted and sentenced in the requesting State

for the offense for which temporary surrender was granted, and returned to the requested State, the individual may be finally surrendered to the requesting State without a further request for extradition. The operation of this paragraph is subject to paragraphs 6

and 7, which are discussed below.

Paragraph 6 was proposed by the Canadian delegation, in accordance with their new law, to establish that the final surrender of a

person shall take place when the person has finished serving the

custodial portion of the sentence in the requested State, or at an

earlier time specified by the requested State. This paragraph allows the requested State to effect the final surrender of a person

who has been released on parole, or under other conditions, and

permits the possibility of final surrender at any earlier time perVerDate 11-MAY-2000 20:01 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 10714.XYW SFRELA2 PsN: SFRELA2
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missible under the requested State’s law, even if the sentence technically is not concluded.

Paragraph 7(a) contemplates that there shall be no final surrender of an individual when the requesting State advises that it

is no longer required because the sentence imposed has expired, or

for other reasons. One example of this might be when the requesting State convicts a person temporarily transferred there and imposes a sentence intended to run concurrently with one in the requested State. In such a case, the requesting State may not want

final surrender of the person from the requested State, or the sentence may expire in the interim. Paragraph 7(b) accounts for a situation in which, during the intervening period between return of the

person to the requested State and final surrender, the order of surrender is revoked by the Canadian Minister of Justice or the U.S.

Secretary of State.

ARTICLE 2

Article 2 of the Second Protocol deletes Article 10(2) of the Extradition Treaty and replaces it with streamlined procedures for the

authentication of U.S. extradition documents. Canada’s new extradition legislation provides that no authentication of documents is

required unless a relevant extradition agreement provides otherwise.

Article 2(2) of the Second Protocol establishes a framework for

the admissibility of documentary evidence in support of a request

for extradition. Paragraph (2)(a) requires that, in the case of a request from Canada, documents must be authenticated by an officer

of the Department of Justice of Canada and certified by the principal diplomatic or consular office of the United States in Canada.

These requirements mirror our current practice concerning documents in support of Canadian extradition requests. Although the

Canadian delegation expressed its hope that the United States

could dispense in the Second Protocol with the more cumbersome

requirements for admissibility of their documents in U.S. courts,

the U.S. delegation explained that it was limited in what it could

do by the requirements of Title 18, United States Code, Section

3190. Nevertheless, the Canadian delegation permitted the United

States to take advantage of Canada’s new law, agreeing to design

paragraph (2)(b) so that the United States would no longer be required to have its documents in support of extradition requests to

Canada authenticated by an officer of the Department of State of

the United States and certified by Canada’s principal diplomatic or

consular officer in the United States.

Paragraph (2)(b) goes on to state that, in the case of a request

from the United States for a person who is sought for prosecution,

documents are admissible in Canada if they are certified by a judicial authority or prosecutor who attests that the evidence is available for trial and is sufficient to justify prosecution under the law

of the prosecuting jurisdiction. This attestation tracks the provision

of Canadian law that was designed for requests from common law

legal systems. The new procedure will eliminate the need for authentication by State Department and diplomatic/consular officials,

which can be time consuming and cumbersome for all parties involved. In our current extradition practice, the United States is cerVerDate 11-MAY-2000 20:01 Oct 17, 2002 Jkt 000000 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 10714.XYW SFRELA2 PsN: SFRELA2
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tifying and authenticating documents both in accordance with the

new Canadian Extradition Act and the requirements of the Extradition Treaty.

Under paragraph (2)(b), when the person sought has already

been convicted, documents supporting the U.S. request must be

certified by a judicial, prosecuting or correctional authority who attests to the fact that the documents are accurate. As in the case

of a person who is sought for prosecution, this procedure will reduce the administrative burden of preparing documents in support

of extradition requests to Canada.

Paragraph (2)(c) provides the alternative that documents may be

certified or authenticated in any other manner accepted by the law

of the requested State. This will enable both countries to take advantage of any new changes to their laws.

ARTICLE 3

Paragraph 1 establishes that this Second Protocol shall form an

integral part of the Extradition Treaty.

Paragraph 2 provides for retroactivity, stating that notwithstanding paragraph (2) of Article 18 of the Extradition Treaty, the

Second Protocol shall apply in all cases in which the request for extradition is made after its entry into force regardless of whether

the offense was committed before or after that date.

Paragraph 3 states that the Second Protocol shall be subject to

ratification, and shall enter into force upon the exchange of instruments of ratification. It shall terminate upon termination of the

Extradition Treaty.

VI. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO

RATIFICATION

Resolved (two-thirds of the Senators present concurring therein),

That the Senate advise and consent to the ratification of the Second Protocol Amending the Treaty on Extradition Between the

Government of the United States of America and the Government

of Canada, signed at Ottawa on January 12, 2001 (Treaty Doc.

107–11).

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