U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–118

" ! SENATE 107TH CONGRESS

2d Session

TREATY DOC.

2002

107–11

SECOND PROTOCOL AMENDING EXTRADITION TREATY

WITH CANADA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

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

JULY 11, 2002.—The Protocol was read the first time, and together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate

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LETTER OF TRANSMITTAL

THE WHITE HOUSE, July 11, 2002.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Second Protocol Amending the

Treaty on Extradition Between the Government of the United

States of America and the Government of Canada, as amended,

signed at Ottawa on January 12, 2001. In addition, I transmit, for

the information of the Senate, the report of the Department of

State with respect to the Second Protocol. As the report explains,

the Second Protocol will not require implementing legislation.

The Second Protocol amends the 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 by a Protocol signed at Ottawa on January 11, 1988.

The Second Protocol, upon entry into force, will enhance cooperation between the law enforcement communities of both nations. The

Second Protocol incorporates into the U.S.-Canada Extradition

Treaty a provision on temporary surrender of persons that is a

standard provision in more recent U.S. bilateral extradition treaties. It also provides for new authentication requirements of documentary evidence, which should streamline the processing of extradition requests.

I recommend that the Senate give early and favorable consideration to the Second Protocol and give its advice and consent to ratification.

GEORGE W. BUSH.

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LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, May 31, 2002.

The PRESIDENT, The White House.

THE PRESIDENT: I have the honor to submit to you 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 (‘‘Second Protocol’’). I

recommend that the Second Protocol be transmitted to the Senate

for its advice and consent to ratification.

The Second Protocol will strengthen the U.S.-Canada extradition

relationship by incorporating a temporary surrender mechanism

into the 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 by a Protocol signed at Ottawa on January 11, 1988 (‘‘Extradition Treaty’’). The Second Protocol will also streamline the extradition process by modifying the Extradition Treaty’s authentication

requirements relating to the admissibility of documentary evidence.

A temporary surrender mechanism has become a standard provision in more recent U.S. bilateral extradition treaties. It allows

person who have been found extraditable to be temporarily surrendered to one State to stand trial while they are still serving sentences in the other State. Temporary surrender can be an important tool for use in cases where serious crimes have been committed in one country which might go unpunished if trial in that

country were to be delayed for a long period while a sentence was

being served for crimes committed in the other country. It enables

sequential trials of individuals who have committed extraditable offenses in both countries at a time when witnesses and evidence to

both crimes are more readily available.

Article 1 of the Second Protocol amends the Extradition Treaty

to provide for a new Article 7bis, which will follow Article 7’s existing provisions authorizing the State in receipt of an extradition request (‘‘requested State’’) to delay surrender until after proceedings

against a person in that State have been completed or the person’s

sentence in that State has been served.

New article 7bis(1) provides that if the requested State has

granted an extradition request in accordance with the Treaty with

respect to a person who already has been convicted and sentenced

in the requested State, it may temporarily surrender the person to

the requesting State for prosecution. It further provides that the

courts of the requested State must not be divested by virtue of the

temporary surrender of jurisdiction over any appeal or habeas corVerDate 11-MAY-2000 10:23 Jul 15, 2002 Jkt 099118 PO 00000 Frm 00005 Fmt 7633 Sfmt 6602 E:\HR\OC\TD011.XXX pfrm01 PsN: TD011
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pus application relating to the conviction or sentence in the requested State.

Article 7bis(2) provides that the person surrendered pursuant to

paragraph (1) must be kept in custody in the requesting State. It

also provides that the person must be returned to the requested

State within forty-five 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 determined by the Parties. This provision anticipates that authorities

in the United States and Canada, which in some cases will include

state-level authorities, will consult to determine appropriate conditions for the temporary surrender of an individual, including arrangements for the transfer and return of the prisoner, as well as

any extraordinary matters that may be relevant, such as medical

care requirements. Consistent with our normal extradition practice,

any case-specific agreements or assurances relating to the temporary surrender would be concluded by the federal authorities on

behalf of state authorities. Similar to the language in paragraph

(1), Article 7bis(2) also provides that the transfer of the person

back to the requested State will not divest the courts of the requesting State of jurisdiction over any appeal or habeas corpus application relating to the matter for which the prisoner was temporarily surrendered.

Article 7bis(3) provides that the time spent in custody in the requesting State may be credited to the sentence in the requested

State. In the case of the United States, credit for time served by

a person surrendered to Canadian authorities may differ among

U.S. state and federal authorities.

Article 7bis(4) provides that the requested State can waive the

return of the surrendered person in the event the person’s sentence

in the requested State expires during the temporary surrender period. Article 7bis(4) provides that in such cases the person’s surrender shall be considered a ‘‘final surrender’’ under the Extradition Treaty.

Because temporary surrender is contingent on a grant of extradition, Article 7bis(5) provides that the requesting State does not

have to make a further request for the extradition of a person who

has been returned to the requested State after having been convicted and sentenced in the requesting State for the offense for

which temporary surrender was granted.

Article 7bis(6) provides that a person who has been returned to

the requested State, after having been convicted and sentenced

during a temporary surrender, must be finally surrendered once

the custodial portion of the person’s sentence in the requested

State has been completed or, if the requested State so specifies, at

an earlier time. This provision contemplates that the requested

State will finally surrender a person who has been released on parole or under other conditions. It also envisions that the requested

State may choose to surrender the person at an earlier time.

Article 7bis(7) recognizes that there may be reasons not to proceed with final surrender even though the person was convicted

and sentenced during a temporary surrender. Article 7bis(7) (a)

provides that final surrender will not take place when the requesting State advises that it is no longer required because the sentence

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imposed in the requesting State has expired or for other reasons.

Similarly, Article 7bis(7) (b) provides that the person will not be

surrendered to the requesting State in the event the competent authority of the requested State revokes its original grant of extradition.

Article 2 of the Second Protocol will establish a new framework

for the admissibility of documentary evidence in support of a request for extradition by replacing existing Article 10(2) of the Extradition Treaty.

Consistent with U.S. extradition law on the admissibility of documentation, new Article 10(2)(a) reiterates the existing requirement

that, in the case of a request from Canada, documents 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. Article 10(2)(b), however, changes existing requirements with respect to requests emanating from the United

States, so as to take advantage of changes in Canadian law regarding the admissibility of extradition documents in Canadian courts.

Specifically, Article 10(2)(b) eliminates the requirement that the

United States have its documentary evidence in support of extradition requests to Canada authenticated by an officer of the U.S.

Department of State and certified by the principal diplomatic or

consular officer of Canada in the United States. Instead, Article

10(2) (b) streamlines the authentication process by allowing documents to be 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. When

the person whose extradition is sought has already been convicted,

documents supporting the U.S. request are to be certified by a judicial, prosecuting or correctional authority who can attest to the fact

that the documents are accurate. These changes should simplify

and thereby reduce the administrative burden of processing extradition requests by the United States.

New Article 10(2) (c) provides an alternative to subparagraphs

(a) and (b), by providing that documents may also be certified or

authenticated in any other manner accepted by the law of the requested State. This addition will enable both countries to take advantage of any changes to their applicable laws.

Article 3 of the Second Protocol addresses the relationship between the Second Protocol and the Extradition Treaty. Paragraph

(1) provides that the Second Protocol will form an integral part of

the Extradition Treaty. Paragraph (2) provides for retroactivity,

noting that, notwithstanding paragraph (2) of Article 18 of the Extradition Treaty, the Second Protocol will apply in all cases where

the request for extradition is made after its entry into force regardless of whether the offense was committed before or after that date.

Finally, paragraph (3) provides that the Second Protocol is subject

to ratification, and enters into force upon the exchange of instruments of ratification. The Second Protocol would terminate upon

termination of the Extradition Treaty.

The Second Protocol does not require implementing legislation. A

Technical Analysis explaining in detail the provisions of the Second

Protocol is being prepared by the United States negotiating delegation, consisting of the Departments of State and Justice, and will

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be submitted separately to the Senate Committee on Foreign Relations.

The Department of Justice joins the Department of State in favoring approval of this Second Protocol by the Senate at an early

date.

Respectfully submitted,

COLIN L. POWELL.

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