Court quashes extradition of two natives to U.S.

Justice minister ignored factors used to offset bias: Ontario court

TORONTO – Ontario’s top court ruled Friday that two men should not be extradited to the United States to face drug charges because of their aboriginal status.

“It would be contrary to the principles of fundamental justice” to send the men to the U.S., where their heritage would not be factored into sentencing, the way it is in Canada, the Appeal Court ruled.

Factors under what is known as the Gladue principle are considered in Canadian law to try to offset systemic discrimination against aboriginal people.

The justice minister didn’t properly take these factors into account when he ordered Zachary Leonard and Rejean Gionet extradited, and for that he was wrong, the court ruled.

Leonard, a young member of the Rainy River First Nations with no criminal record, was arrested at a U.S. border crossing in 2006 when the van in which he was a passenger was found to be carrying 46,000 ecstasy pills. If he is prosecuted in the U.S. he could face 19 years in prison.

Given his age, lack of a record, peripheral alleged involvement in the crime, his aboriginal status and steps he has taken to rehabilitate himself since then, he might not receive any jail time in Canada, the court said.

Gionet, a member of the Ginoogaming First Nation, was allegedly involved in importing oxycodone into the U.S. from Canada in 2003 and 2004.

In the U.S. he would face six or seven years if he pleaded guilty and up to 10 years if convicted after a trial. In Canada, the sentence range is three to five years and he has already spent 3-1/2 years in custody.

Gladue, a Supreme Court of Canada decision from 1999, stated that factors such as dislocation and high unemployment combined with bias and systemic racism have contributed to the “grossly disproportionate” incarceration of aboriginal people.

It does not amount to reverse discrimination in the form of automatically lighter sentences or a “get out of jail free” card, the Appeal Court said.

But the courts in Canada must consider aboriginal heritage as a factor in sentencing because equality does not necessarily mean equal treatment, the court said.

Justice Minister Rob Nicholson “refused to apply the Gladue principle,” the Appeal Court ruled and quashed the extradition orders.