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With recent cases having taken great prominence both here at TheCourt.ca and likewise in the wider media, Lake v. Canada (Minister of Justice) 2008 SCC 23 has gone somewhat overlooked. This is unfortunate, because the case creates firm precedent for the appropriate standard of care required of the Minister of Justice in an extradition case - an issue likely to become more important as international criminal procedural issues grow in number.
Talib Steven Lake, an American citizen, was charged in Ontario with trafficking both crack and regular cocaine in Windsor. The OPP sting operation that caught Mr. Lake was done with the cooperation of the FBI, and included a drug transaction which took place in Detroit rather than in Windsor. Mr. Lake was of course not charged in Canada for the transaction which took place in Detroit.
Mr. Lake pled guilty on all charges, primarily in the hopes of avoiding a lengthier sentence in the United States (he already had one trafficking conviction there). During his three-year sentence in Canada, he established that he was also a Canadian citizen as his mother had been born in Canada.
In 2003, after Mr. Lake had served his sentence, the United States requested his extradition to stand trial for the transaction in Detroit. Mr. Lake was committed for extradition, and the Minister ordered his surrender. The Minister stated that Canada had no jurisdiction to prosecute Mr. Lake for the Detroit offense, and that surrender in these circumstances did not unnecessarily infringe Mr. Lake's right to remain in Canada under s. 6(1) of the Charter.
The Minister also noted that denying surrender because Mr. Lake had already been punished for the conduct was erroneous, because although the Canadian and American charges both originated in the same investigation, the charges themselves were concerned with separate criminal offenses and were therefore distinct. Therefore, ordering Mr. Lake's surrender did not violate Canada's extradition treaty with the United States or its general statutory laws regarding extradition.
Finally, the Minister noted that Mr. Lake's case lacked many of the factors necessary to create a situation where ignoring Canada's treaty obligations would be a reasonable course of action, arguing that Mr. Lake's situation was not one which Canadians would consider unjust or unfair, thus satisfying s. 44(1) of the Extradition Act, ( 1999, c. 18 ) which:
compels the Minister to refuse surrender when he is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnicity, origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person's position may be prejudiced for any of those reasons.
Mr. Lake argued that the Minister did not properly assess the factors set forth in United States of America v. Cotroni, 1989 1 SCR 1469, where the Supreme Court listed a number of issues the Minister should consider when deciding whether or not to allow an extradition. If these issues had been properly accounted (in Mr. Lake's view) they would present a solid case for denying extradition. He further argued that the Minister failed to adequately explain why extradition would be preferred in this case.
Both the Ontario Court of Appeal and the Supreme Court dismissed Mr. Lake's appeal. The Supreme Court emphasized very strongly in its decision the need to allow federal discretion in these matters wherever possible. Lebel J. wrote at para. 34:
This Court has repeatedly affirmed that deference is owed to the Minister’s decision whether to order surrender once a fugitive has been committed for extradition. The issue in the case at bar concerns the standard to be applied in reviewing the Minister’s assessment of a fugitive’s Charter rights. Reasonableness is the appropriate standard of review for the Minister’s decision, regardless of whether the fugitive argues that extradition would infringe his or her rights under the Charter. As is evident from this Court’s jurisprudence, to ensure compliance with the Charter in the extradition context, the Minister must balance competing considerations, and where many such considerations are concerned, the Minister has superior expertise.
Lake's counsel argued that correctness, rather than reasonableness, was the appropriate standard to be used due to the conflict with individual Charter rights. The Supreme Court disagreed, stating that the Minister's responsibility to uphold Canada's international obligations ran together with his responsibility to assess Charter infringements caused by extradition; a more lenient standard was required.
One last point. The Supreme Court concluded by saying that only in cases where the Minister's decision was unreasonable would they seek to overturn his decisions regarding extradition. This is a fair basis for court intervention, but I would argue that Mr. Lake's case is one where a strong argument can be made that the United States' mandatory minimum drug sentencing laws do indeed punish on the basis of race, and thus that the Minister's decision was in turn unreasonable.
The vast majority of individuals arrested for possession or trafficking of crack cocaine in America - eighty-two percent in 2006 - are black (as is Mr. Lake), and crack cocaine mandatory minimum sentences arbitrarily and disproportionately punish for possession of the drug as compared to cocaine in powder form, which is no more dangerous than crack cocaine (but much more expensive and much more likely to be used by white people). Had Mr. Lake been trafficking powder cocaine rather than crack, he would not be subject to the mandatory minimum sentencing, as powder cocaine requires 500 grams to be present to trigger the mandatory minimum. (Crack, in comparison, requires five grams to be present to trigger the mandatory minimum.)
The mandatory minimum sentences for crack cocaine are in design nonsensical and in practice deeply racist, punishing blacks disproportionately in comparison to other drug offenders. I would suggest that if this does not "shock the conscience" of Canadians, it is only because Canadians are not greatly aware of such a disparity of equal justice in our closest neighbor.
2 Comments
I hardly think it fair to say that the distinctions between punishments for crack and powdered cocaine are either "arbitrary" or "nonsensical." The difference in punishment is based on the fact that crack cocaine is easier to produce and much cheaper to sell. This makes crack cocaine a much greater danger --- especially to young people who are a favourite target of crack dealers. In fact, it is clear that because of its low cost and ease of production crack cocaine is much easier to distribute. Crack cocaine, rather than powdered cocaine, is therefore readily available to school children.
American authorities have, therefore, made a reasoned decision to combat crack cocaine use among young people by vigourously prosecuting those who sell. Because of its high cost, powdered cocaine is unlikely to be used except by those with means. The idea in differential sentencing was to attack what was thought to be the greater evil: flooding the nation's schoolyards with hard drugs.
I suppose it is fair to question whether stiffer sentences are an effective deterrent. However, I hardly think it fair to dismiss this approach as "nonsensical" or something akin to a racist plot.
Matthew Harrington suggests that, even though the quantities of powder cocaine required to trigger the mandatory minimum penalties in the United States are 100 times greater than the quantities of crack cocaine, it is unfair to characterize this differential in punishment as arbitrary or nonsensical. To his credit, he does not seek to justify the sentencing differential by the usual but now unsupportable view that crack cocaine is significantly more harmful than powder cocaine. Instead, the large differential to his mind can be justified by the low-cost of crack cocaine that makes it a particularly attractive product to school children.
Readers of TheCourt.ca might be interested to know that in 2002 the United States Sentencing Commission, in its "Report to Congress: Cocaine and Federal Sentencing Policy", dismissed the notion that there was an epidemic of crack cocaine use among young Americans:
Although these Congressional concerns of the mid-1980s were understandable at the time, recent data indicate that the epidemic of crack cocaine use by youth never materialized to the extent feared. The National Household Survey on Drug Abuse reports that crack cocaine use among 18- to 25-year old adults historically has been low. Between 1994 and 1998, on average less than 0.4 percent of those young adults reported using crack cocaine within the past 30 days. In fact, in 1998 the rate of powder cocaine use among young adults was almost seven times as high as the rate of use of crack cocaine.
Monitoring the Future surveys report similar findings about cocaine use by high school seniors. From 1987 to 2000, on average less than 1.0 percent of high school seniors reported crack cocaine use within the past 30 days. (Fig. 23.) During that same period, the rate of powder cocaine use by high school seniors was almost twice as high, but averaged only 1.9 percent. The low rate of crack cocaine use by young people also is consistent with Commission sentencing data indicating that in 2000 only 0.5 percent of federal crack cocaine offenses involved the sale of the drug to a minor. (Fig. 20.)
Data are not available regarding the number of underage crack cocaine traffickers at the state and local levels, but sentencing data suggest youth do not play a major role in crack cocaine trafficking at the federal level. Minors were involved in only 4.2 percent of federal crack cocaine offenses in 2000. (Fig. 20.) The average age of federal crack cocaine traffickers was 29 years old, only four years younger than the average age of all federal drug traffickers (33 years).
See http://www.ussc.gov/r_congress/02crack/ch8.pdf
In its 2007 Report to Congress, the Sentencing Commission again took a critical view of the danger that cocaine (crack or powder) allegedly posed to America's youth:
see http://www.ussc.gov/r_congress/cocaine2007.pdf
In both its 2002 and 2007 Reports, the United States Sentencing Commission recommended the abolishment of the mandatory 100:1 punishment deferential between crack and powder cocaine offences.