[Senate Treaty Document 107-11]
[From the U.S. Government Publishing Office]
107th Congress Treaty Doc.
SENATE
2d Session 107-11
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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
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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.