[Senate Executive Report 107-14]
[From the U.S. Government Publishing Office]



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

                              R E P O R T

                   [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 Senate 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.

 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.
---------------------------------------------------------------------------
    \1\ Bill C-40, Chapter 18, Part 2,--66
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    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 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.
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    \2\ Bill C-40, Chapter 18, Part 2,--33(4)
---------------------------------------------------------------------------
    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.
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    \3\ 27 UST 983; TIAS 8237
    \4\ Temporary 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 States-Bolivia Treaty, signed June 27, 1995, entered into 
force Nov. 21, 1996; Art. 13, United States-Jordan 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.
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    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 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.''
    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 permissible 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 certifying 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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