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[Senate Treaty Document 107-11]
[From the U.S. Government Publishing Office]

107th Congress                                              Treaty Doc.
                                  SENATE                     
  2d Session                                                  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
                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
99-118                    WASHINGTON : 2002

                         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.
                          LETTER OF SUBMITTAL

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                                       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 extraditionprocess 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 corpus 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 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 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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