To say that Gary Botting is an experienced academic and jurist is to undersell the point considerably. His CV is replete with the kind of breadth that most jobbing lawyers can only aspire to, including serious work in other fields (he has been a journalist, studied and taught literature, and produced plays). Much of his recent work has concerned the field of extradition law. Canadian Extradition Law Practice 2010 [Extradition Law], while not billed as such, is the 4th edition (the previous editions dating from 2005, 2007 and 2009) of this work. It has been cited by Courts of Appeal across the country. His other main work on the subject, Extradition Between Canada and the United States has been used by the Supreme Court.
The bulk of Extradition Law is taken up with the annotated Canadian Extradition Act and related “International Treaties”. Core information is broken down into short sections like “How to Use This Book”, and “Statutory Limitations”. Provisions are cross-referenced, which is always of great assistance. A 21-page “Introduction” provides further guidance on principles.
Botting’s “Introduction” is unstinting in its criticism of extradition law, both in the Act and as applied by the courts. He underscores the extreme deference paid to both the representations of foreign prosecutors and the Minister of Justice. As an example of an area where extradition and mutual legal assistance with the US has particularly unfair consequences, he gives a summary of “Cross-Border Scams”, explaining how the lack of oversight or review means that non-criminal Canada-based telemarketers can be caught up in American prosecutions, and can suffer business losses and be forced to close long before any court judges them guilty. Of course, to the average person telemarketers are hardly a sympathetic group, but Botting’s explanation makes clear that the problem has nothing to do with the type of allegation and everything to do with a system where political points matter most and judges feel they cannot intervene.
Much of the extradition system rests on a presumption of good faith and competent provision of justice by the country requesting extradition, and in practice there is no recognition of the fact that even developed countries with similar legal systems or generally acceptable due process guarantees can suffer miscarriages of justice. Of particular note is the fact that the existence of an extradition treaty can be used to justify the presumption, i.e. “if their courts weren’t fair, we obviously wouldn’t have an extradition treaty with them.”
The irony—that this is a “law” book about a fundamentally political system—is not lost on Botting, and is implicit in his “Introduction”. He discusses difficulties arising from extradition treaties negotiated decades ago between the United Kingdom in “Honour and the King of Siam”. He highlights the courts’ manoeuvring to justify extradition to states whose sentencing rules would be considered cruel and unusual in Canada.
Canada’s Extradition Law: The Case of Hassan Diab
While Botting’s commentary on the legislation itself is not as editorial—or scathing—as the introduction, it provides the explanations and fleshing out that statutes always require in a common law system. The text would be of assistance to anyone working in or studying this peculiar area of law.
Botting’s earlier book, Wrongful Conviction in Canadian Law [Wrongful Conviction], is a companion more in tone than in content. It includes a brief but stirring “Foreward” by David Milgard, and as with Extradition Law contains the standard tables of cases and acronyms, as well as a the helpful “How to Use This Book”.
The majority of the text is composed of the recommendations of major inquiries into wrongful convictions: The Marshall Inquiry (Hickman Commission), The Morin Inquiry (Kaufman Commission), The Sophonow Inquiry (Cory Commission), The Dalton/Parsons/Druken Inquiry (Lamer Commission), The Driskell Inquiry (LeSage Commission), The Milgaard Inquiry (MacCallum Commission), and The Inquiry into Pediatric Forensic Pathology in Ontario (Goudge Commission). Botting lists the Recommendations, following each with “Commentary”, “Rationale”, “Cross-Reference” (to other recommendations in the same or other reports), “Action Taken”, “Incorporated into Legislation?”, “Incorporated into Policy?”, and “Case Law”.
As a result of this structure, Botting’s commentary is clear and leaves the information needed to drill down at the reader’s fingerprints. This is much more than an annotated copy of the reports, but rather functions as a companion and guide. It looks backwards at the reports and forward into their implementation (or lack of implementation, as is not infrequently the case). This makes Wrongful Conviction useful as either a cover-to-cover read or as a quick reference guide.
Neither of these texts is a light read, but they will be useful to practitioners, and certainly engaging to anyone with an interest in miscarriages of justice, foreign and domestic.
This work by Prism Magazine is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.