Note to reader: This is the affidavit filed in April 2000 with Canada's Minister of Justice by Eugene Oscapella, one of the founding members of the Canadian Foundation for Drug Policy, in support of Renee Boje's request that she not be extradited to the United States. The affidavit documents the extensive evidence of abuse of women in US prisons, in violation of international law. It also documents growing support in Canada for reduced penalties or the abolition of penalties for marijuana offences. The affidavit concludes that the Minister of Justice is obliged under Canada's Extradition Act to refuse to order Ms. Boje surrendered for extradition because to order her extradited would be "unjust or oppressive having regard to all the relevant circumstances". Section 44(1) of the Extradition Act reads:
44. (1) The Minister shall refuse to make a surrender order if the Minister 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, ethnic 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.
-- Eugene Oscapella
For more information about her case, visit Ms. Boje's web site.
IN THE MATTER OF THE EXTRADITION ACT, S.C. 1999 c.18; AND THE APPLICATION OF THE UNITED STATES OF AMERICA TO EXTRADITE RENEE BOJE; AND IN THE MATTER OF THE IMMIGRATION ACT, S.C. 1976-77, c.52; AND A CLAIM FOR CONVENTION REFUGEE STATUS BY RENEE BOJE AND IN THE MATTER OF THE DECISION OF THE MINISTER OF JUSTICE PURSUANT TO S.40-44 OF THE EXTRADITION ACT
AFFIDAVIT OF EUGENE LEON OSCAPELLA
I, EUGENE LEON OSCAPELLA, of the City of Ottawa in the Regional Municipality of Ottawa-Carleton, Province of Ontario, MAKE OATH AND SAY:
1. I am a barrister and solicitor in the Province of Ontario, having been called to the Bar in 1980. I have worked as a researcher and consultant for many government agencies including the Law Reform Commission of Canada, the Department of Justice, the Ontario Law Reform Commission and the Office of the Privacy Commissioner of Canada. In addition, I served as the first Chair of the Drug Policy Group of the Law Reform Commission of Canada, the Executive Director of the National Associations Active in Criminal Justice, and have also served as a member of the policy committee of the Canadian Criminal Justice Association. I lecture on criminal justice and drug policy in the Criminology Department of the University of Ottawa. I am a founding member of the Canadian Foundation for Drug Policy and, among my other professional duties, I currently serve as one of the directors of this foundation. The Canadian Foundation for Drug Policy is a not-for-profit organization founded in 1993 by several of Canada's leading specialists in drug policy. The foundation is a forum for the exchange of views on reform with respect to Canada's drug policies. Where it considers them necessary, the foundation recommends law reform and policy initiatives that will make Canada's drug laws and policies more effective and humane. I was called to give expert testimony in the spring of 1997 in R. v. Clay (1997) 9 C.R. (5th) 349 (Ont. Gen. Div.). I was also called to give expert testimony in the autumn of 1999 in R. v. Parker (Ont. C.A.; No. C28732). Attached hereto to this affidavit and marked as Exhibit "A" is a copy of my curriculum vitae which outlines my professional qualifications.
2. I am writing this affidavit to provide an overview of recent developments with respect to the laws surrounding cannabis sativa in Canada and to provide an overview of some of the prison conditions facing women who are incarcerated in the United States and the human rights violations that flow from these conditions. I am writing this affidavit in support of Renee Boje's claim for refugee status in Canada from the United States and her request that she not be surrendered by way of extradition to the United States.
3. The United Nations, Amnesty International and Human Rights Watch have all documented extensive abuse - physical, psychological and sexual - of women prisoners in the United States, in violation of international human rights norms generally, and in violation of international standards on the treatment of prisoners in particular. The United States General Accounting Office (GAO), the investigative arm of U.S. Congress, has also recently documented the sexual misconduct by prison authorities against women.
4. The introductory remarks to a 1999 report by Amnesty International, United States of America: Rights for All: "Not Part of My Sentence", Violations of the Human Rights of Women in Custody, state:
This report describes violations of the human rights of women incarcerated in prisons and jails in the United States of America. The rights are set out in a number of agreements that have been adopted by an overwhelming majority of countries.
Many of the violations described in this report, such as sexual abuse committed by prison guards, are also prohibited by laws of the USA. However, as the report shows, a female prisoner may find it extraordinarily difficult to stop unlawful conduct or to have a perpetrator brought to justice. She may have good reason to fear that if she complains she will be victimised again or that investigators will not believe her word in the face of denial by a guard.
Other violations reflect a significant difference between the rights of women set out in international standards and federal and state laws in the USA. For example, international standards provide that female prisoners should be supervised only by female guards. In contrast, under laws of the USA, a male guard may watch over a woman, even when she is dressing or showering or using the toilet. He may touch every part of her body when he searches for contraband.
Attached hereto to this affidavit and marked as Exhibit "B" is a copy of the Amnesty International report.
5. Amnesty International prepared a second report in 1999 dealing with the conditions at California's Valley State Prison for Women (VSPW). VSPW is the largest women's prison in the United States. The report states, in part:
The concerns described in this document cover sexual abuse of prisoners by male guards; the cruel use of restraints on pregnant and ill women; allegations of inadequate medical and mental health care; and conditions in the Security Housing Unit (SHU), a high security unit where women (many of them with mental health problems) are isolated in their cells for 22-24 hours a day in conditions of extreme deprivation.
In California, as elsewhere in the USA, the majority of women in prison are serving sentences for non-violent offences, and many of them are imprisoned under legislation providing long prison terms for the possession or sale of drugs.
Both before and during its visit to the prison Amnesty International received reports from prisoners and other sources that inmates were the victims of sexual abuse by some staff. Inmates reported that it was common for some male officers to watch them dressing and undressing and, in breach of the approved procedure, to touch their breasts and genitals when conducting pat searches. It was also reported that some guards used sexually - and sometimes racially - offensive language towards inmates. At the time of Amnesty International's visit, we were informed, several guards were being investigated for sexual misconduct, including an alleged rape.
The Department of Corrections and senior management at VSPW have told Amnesty International that they do not condone or tolerate any form of sexual misconduct between inmates and staff and that all allegations are promptly investigated. However, Amnesty International believes that certain policies and operational procedures, particularly as regards the deployment of male staff, create opportunities for abuse, and that some procedures, for example pat searches conducted by male guards, are inherently abusive.
The Amnesty International report also concluded that these prison conditions violated international norms:
In reviewing US compliance with the provisions of the International Covenant on Civil and Political Rights, the UN Human Rights Committee expressed concern at the practice in US states of using male guards for female inmates, "which has led to serious allegations of sexual abuse of women and the invasion of their privacy". It called on the authorities to amend existing legislation "so as to provide at least that [male officers] will always be accompanied by women officers." Amnesty International is particularly concerned by the following:
. -- male staff have unrestricted access to virtually all parts of VSPW, including sensitive areas such as inmate living quarters and areas where showers or toilets are situated. Even without misconduct, Amnesty International believes that it is inherently degrading for naked women to be exposed to the view of male staff while, for example, taking showers, as happens in the Security Housing Unit (SHU) and some other areas. In the SHU, the showers are situated on the tiers in the main unit in full view of custody staff. Although male guards were removed from the control booth following complaints that they could see directly into the showers from this position, women can still be observed by male guards in the unit itself. Two of Amnesty International's delegates were in the unit while women were showering and noted that the small modesty panels did not protect all women from exposure of their buttocks and lower body. Inmates in the SHU also complained that they are sometimes observed by male guards through their cell windows, while they are bathing, undressing or using the toilet in the cells.
. --Dr Silvia Casale notes in her report that steps that have been taken to alert prison staff to the need for privacy in the reception area, where newly arrived inmates have to undergo strip searches. However, outside male escorting officers are allowed into the area to hand over documents and collect receipts, even though inmates in the reception tanks (in which they have to strip and squat in a line) are clearly visible. Dr Casale recommends that consideration be given to measures that would avoid the need for escort officers to enter the area where strip searching is visible. Amnesty International also received complaints from inmates that they were subjected to strip searches in the SHU while male guards were standing nearby (see SHU section, below).
. --Although male staff are not allowed to conduct strip searches, they are required to carry out routine pat searches of clothed inmates, a procedure which we were told requires guards running the back of their hands up the inside leg to the crotch and around the breast area. Like some other procedures, this is a state-wide policy which does not take account of the specific gender-sensitive issues relating to a female population. Prisoners have reported that even when such searches are conducted in accordance with policy they can be traumatizing, especially in the case of women who have been physically and sexually abused before they were imprisoned (a significant proportion of the inmate population). Many of the prisoners Amnesty International interviewed said they were disturbed by having to be pat searched by male officers. As stated above, Amnesty International believes that such procedures are inherently degrading, in violation of international standards.
. --Amnesty International is concerned that health care at the prison is provided almost exclusively by male doctors, although many of the support staff are female. Some prisoners told Amnesty International that they were disturbed by having necessary pelvic examinations and other intimate procedures conducted by male doctors, a concern enhanced by the background of abuse many of the women suffered prior to imprisonment. One prisoner alleged that some women had a problem with one doctor, who they believed had subjected them to unnecessary pelvic probes, but they were afraid to complain in case it affected their ability to receive care in an emergency. The prison staff said it was difficult to find female doctors to work in the prison. However, Amnesty International believes that more should be done to recruit female doctors to provide the prisoners with an option of being examined by a member of their own sex.
Attached hereto to this affidavit and marked as Exhibit "C" is a copy of the Amnesty International report on California's Valley State Prison for Women.
6. Human Rights Watch was founded in 1978 as Helsinki Watch. It is now the largest U.S.-based human rights organization. In its December 1996 report, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, Human Rights Watch has also identified serious sexual violations of women in U.S. prisons, contrary to the norms of international law:
Our findings indicate that being a woman prisoner in U.S. state prisons can be a terrifying experience. If you are sexually abused, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and correctional employees continue to engage in abuse because they believe they will rarely be held accountable, administratively or criminally. Few people outside the prison walls know what is going on or care if they do know. Fewer still do anything to address the problem.
. . . Many women are incarcerated in the 170 state prison facilities for women across the United States and, more often than not, they are guarded by men.
The custodial sexual misconduct documented in this report takes many forms. We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women's breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often highly sexualized and excessively hostile.
No one group of prisoners appears to suffer sexual misconduct more than any other, although those in prison for the first time and young or mentally ill prisoners are particularly vulnerable to abuse. . . . In some instances, women have been impregnated as a result of sexual misconduct, and some of these prisoners have faced additional abuse in the form of inappropriate segregation, denial of adequate health care, and/or pressure to seek an abortion.
The United States is . . . clearly bound under its own constitution to prevent and punish custodial sexual misconduct. It is equally bound by international human rights law to take these steps, although in ratifying the ICCPR and the Torture Convention, the United States attempted to limit its treaty obligations in ways that were particularly adverse to the elimination of custodial sexual misconduct. In Human Rights Watch's view, these efforts by the United States to shirk its full international human rights obligations are both bad policy and legally indefensible.
. . . [S]tate laws [against sexual contact with prisoners] are rarely enforced, and when they are, they often carry very light penalties. States' failure to uphold their own laws regarding custodial sexual misconduct reflects their reluctance to prosecute such crimes, largely because of an ingrained belief, except in the most egregious cases, that the prisoner was complicit in the sexual abuse committed against her. In this sense, state officials still widely view criminal sexual misconduct as a victimless crime.
One of the biggest obstacles to the eradication of custodial sexual misconduct is its invisibility at the state and national level. . . . Sexual misconduct is often so entrenched that, in those correctional systems where class action suits have not yet occurred or have only recently been initiated, such abuse is still largely an invisible problem or one that the respective correctional systems flatly deny.
The invisibility of custodial sexual misconduct, and hence its deniability, are further fueled by the failure of the states we investigated and the District of Columbia to establish credible internal grievance and investigatory procedures that do not expose complainants to retaliation or punishment.
Virtually every prisoner we interviewed who had lodged a complaint of sexual misconduct faced retaliation by the accused officer, his colleagues, or even other prisoners. In some cases, they also faced punishment by correctional officials. These punishments took the form of write-ups for sexual misconduct, the loss of "good time" accrued toward an early parole, or prolonged periods of disciplinary segregation. In other cases, officials did not overtly discipline prisoners but made use of administrative segregation, ostensibly a protective mechanism, effectively to punish them.
The tendency of the U.S. government to neglect the problem of custodial sexual misconduct in state prisons for women is perhaps best exemplified by its first report to the U.N. Human Rights Committee, which monitors compliance with the ICCPR. In the entire 213-page report, the problem of custodial sexual misconduct in U.S. state prisons for women is mentioned only once and then only to state that it is "addressed through staff training and through criminal statutes prohibiting such activity." This statement is at best disingenuous. At worst, it makes clear to the international community, to the people of the United States, to the state departments of corrections and the women they incarcerate, and to us, that the United States has almost completely abdicated its responsibility to guarantee in any meaningful way that the women held in its state prisons are not being sexually abused by those in authority over them.
Attached hereto to this affidavit and marked as Exhibit "D" is a copy of the summary of the 1996 Human Rights Watch report.
7. A subsequent Human Rights Watch report in 1998 on the conditions for women in U.S. prisons concluded that since the publication of its 1996 report, it "has continued to receive reports of sexual abuse of and retaliation against women incarcerated in jails, state prisons, and federal prisons:"
In December 1996 Human Rights Watch released All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, a report documenting pervasive sexual harassment, sexual abuse and privacy violations by guards and other corrections department employees in state prisons in California, the District of Columbia, Georgia, Illinois, Michigan, and New York. The report also exposed the failure of states to respond to women's reports of sexual abuse and harassment. The failure was twofold: states failed to conduct impartial investigations of allegations of sexual abuse, and they further failed to protect women who reported these abuses to prison authorities, leaving them vulnerable to retaliation by guards.
Since the publication of All Too Familiar, Human Rights Watch has continued to receive reports of sexual abuse of and retaliation against women incarcerated in jails, state prisons, and federal prisons. We have been particularly disturbed by reports of an apparent campaign by some corrections officers of retaliation against several of the women in Michigan prisons who are active in the ongoing civil litigation against the Department of Corrections alleging widespread sexual abuse by guards and staff. Several of these women had provided information for All Too Familiar, and Human Rights Watch knows their case histories. We therefore conducted further research, focusing specifically on retaliatory behavior that appeared to be connected to the women's roles as plaintiffs in the class action suit, Nunn v. Michigan Department of Corrections (Nunn suit). We also collected information on the chilling impact of the perceived retaliation on other inmates.
Human Rights Watch concluded that the abuse of women in these situations violated international norms, and that such misconduct was "in many ways" representative of conduct against women prisoners elsewhere in United States:
The issues in Michigan are in many ways representative of those facing corrections departments throughout the U.S. One of the clear contributing factors to sexual abuse in U.S. prisons for women is that the United States, despite authoritative international rules to the contrary, allows male corrections employees to hold contact positions over women prisoners, that is, positions in which they serve in constant physical proximity to the prisoners of the opposite sex. Under the United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), which constitute an authoritative guide to international law regarding the treatment of prisoners, cross-gender guarding of prisoners is prohibited. However, since the passage Title VII of the Civil Rights Act of 1964 and the introduction of equal employment rights for women, U.S. employers have been prohibited from denying a person a job solely on the basis of gender unless the person's gender is reasonably necessary to the performance of the specific job. In the absence of unusual circumstances, U.S. federal courts have been unwilling to recognize a person's gender as meeting this standard with respect to corrections employment. As a result, most restrictions on male officers working in women's prisons that predated the Civil Rights Act have been removed, and by some estimates, male officers working in women's prisons now outnumber their female counterparts by two, and in some facilities three, to one.
Human Rights Watch is concerned that the states' adherence to U.S. anti-discrimination laws, in the absence of strong safeguards against custodial sexual harassment and abuse, has often come at the expense of the fundamental rights of prisoners, including privacy rights.
The Human Rights Watch report also concluded that these forms of conduct violated international law on several fronts:
Most of the custodial sexual abuse and misconduct reported in All Too Familiar: Sexual Abuse of Women in U.S. State Prisons and in this report constitute either torture or cruel, inhuman, or degrading treatment as defined by international law. Torture is "any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing . . . or intimidating him or a third person," by or with the acquiescence of an official. Not all acts of rape constitute torture; however, in a custodial setting, if a guard uses force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, the act of rape constitutes torture. If the guard uses force or coercion to engage in sexual touching of prisoners, including aggressively squeezing, groping, or prodding women's genitals or breasts, and the acts caused severe physical and mental suffering, they, too, would amount to torture.
Retaliatory acts which may not rise to either the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment, that is, treatment that causes or is intended to cause gross humiliation or an insult to a person's dignity. This includes inappropriate pat- or strip-searches and verbal harassment.
Attached hereto to this affidavit and marked as Exhibit "E" is a copy of the 1998 Human Rights Watch report.
8. In March 1999, the United Nations released the following report dealing with the conditions for women in U.S. prisons: Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44: Report of the mission to the United States of America on the issue of violence against women in state and federal prisons. The report states, in part:
A. California
[T]he introduction of mandatory minimum sentences for drug-related offences in California courts (as well as in federal courts) is clearly the reason why 70 per cent of the women in California prisons are incarcerated for non-violent offences.
85. . . . Of the 350 corrections officers at VSPW [a California prison], only 30 per cent are female. . . . CCWF [another California prison] has a prison population of 3,597. . . .There are 360 correctional officers, of whom some 30 per cent are female. . . .
87. California appears to have inadequate administrative or penal protection against sexual misconduct in custody. This is compounded by the fact that the California Department of Corrections has no comprehensive procedures for reporting or investigating allegations of sexual abuse in its facilities.
91. The Special Rapporteur was informed that at VSPW pat-frisks are carried out by male and female corrections officers, whilst strip-searches are only carried out by same-sex officers. . . . The Special Rapporteur was able to confirm allegations that in the receiving area at VSPW, strip-searches are carried out in a big room with large windows, enabling male corrections officers to watch. It was also alleged that cross-gender teams are used for strip-searching, the male corrections officers restraining the woman prisoners whilst the search is carried out by a female officer.
92. At CCWF, the Special Rapporteur was also informed that pat-searches were carried out by both male and female officers and that strip-searches were mostly carried out by same-sex officers "except in emergencies". The Special Rapporteur considers that this exception is open to abuse. . . . CCWF prison management acknowledged that cross-gender guarding certainly created problems and that there were too few female corrections officers. . . .
93. With regard to privacy issues at CCWF, the Special Rapporteur, during her visit of the housing units, was concerned that there were no shower curtains, but only so-called "modesty doors" or panels in the showers, which were located in the middle of the housing unit, immediately in front of the desk of corrections officers, most of whom were male. The structure of the housing units at CCWF also lends itself to invasion of privacy by officers on duty.
96. The Special Rapporteur is seriously disturbed by allegations concerning the lack of privacy in the Units. Women prisoners interviewed by representatives of California Prison Focus in the week prior to the Special Rapporteur's visit alleged continuing sexual abuse and harassment, in particular by male corrections officers in the "shower bubble". A group of women prisoners had previously filed a group grievance about the fact that they were not allowed to take towels into the showers, which are only covered by modesty panels. The grievance also alleged that officers on duty were able to observe the women in the showers from the control booth in the Units, which is 10 feet off the ground. The Special Rapporteur was informed that in reply to the grievance the prison management simply stated that, based on an evaluation of the shower situation, the modesty panels were considered to respect privacy and that the request for female guards in the control booth was denied.
97. In addition to the shower area, the pervasive invasion of privacy in the bathrooms was brought to the Special Rapporteur's attention. Officers sitting on the wall of the bathroom have an unobstructed view of women sitting on the toilets, which the Special Rapporteur considers intolerable, unacceptable and unnecessarily intimidating and humiliating.
99. It was also alleged that women in the Units live in constant fear of rape and that although strip-searches are carried out by female officers, male guards are often present and subsequently discuss the women's bodies in public in the cells and the housing units. Some women reported having sexual relations with corrections officers assigned to the Units who were suspended from duty but later returned on posts amongst the general prison population.
100. Another serious concern which was drawn to the attention of the Special Rapporteur is that, unlike in Georgia, the CDOC has no maximum limitation of the detention period in administrative segregation. This is particularly disconcerting since it is reported that many women are placed in administrative segregation for unlimited periods for having resisted sexually invasive pat-frisks.
Attached hereto to this affidavit and marked as Exhibit "F" is a copy of the Report of the Special Rapporteur.
9. In June 1999, the United States General Accounting Office (GAO), the investigative arm of U.S. Congress, released a report on the sexual misconduct of correctional staff against women in prison. The report states, in part:
While laws and policies could help minimize staff sexual misconduct, our work in four jurisdictions indicates that such misconduct still occurs.
At least 23 departments of corrections had faced class action or individual damage suits related to sexual misconduct.
In 1996, the Association of State Correctional Administrators identified staff sexual misconduct as one of its major management concerns. Further, in recent years, additional attention to staff sexual misconduct has resulted from media focus and reports issued by various organizations . . ..
While the data indicate that staff sexual misconduct occurs, the full extent of the problem is unknown. Many correctional experts believe that staff-on- inmate sexual misconduct is likely underreported nationally due to the fear of retaliation and vulnerability felt by female inmates. Also, as discussed more fully later in this report, the jurisdictions we studied did not have readily available, comprehensive data on the number, nature, and outcome of sexual misconduct allegations. For example, BOP and Texas provided data only on the more serious types of allegations, such as improper sexual contact and assault. These jurisdictions either did not have or could not readily compile data on allegations involving other types of sexual misconduct, such as verbal harassment and inappropriate visual surveillance.
In one of the cases settled, BOP [Bureau of Prisons] agreed to pay three women $500,000 to end a lawsuit in which the women claimed they had been beaten, raped, and sold by guards for sex with male inmates.
The District of Columbia Department of Corrections has had long-standing problems involving allegations of sexual misconduct by correctional staff. For example, in October 1993, female inmates filed suit in federal district court, alleging various violations of constitutional rights, including an allegation that the Department of Corrections failed to protect them against sexual harassment, sexual assault, and rape by guards.
According to the cognizant NIC official, a nationally recognized expert on sexual misconduct in correctional facilities, both the reporting of staff-on-inmate sexual misconduct allegations and the breadth of investigations have improved in many jurisdictions during the 1990s. The official noted, however, that most U.S. correctional systems still do not adequately capture or track data related to such allegations. The absence of adequate information systems makes it difficult to monitor the incidence of sexual misconduct, to keep track of allegedly abusive employees or those who have been found to have violated prison rules and/or criminal law, and to identify corrective actions needed to help prevent such misconduct.
Because many female inmates may be reluctant or unwilling to report staff sexual misconduct and jurisdictions lack systematic data collection and analysis of reported allegations, the overall extent of staff-on-inmate sexual misconduct in female prisons is largely unknown. However, prior research and our work indicate that such behavior can and does occur.
Attached hereto to this affidavit and marked as Exhibit "G" is a copy of the United States General Accounting Office report.
10. The sexual and other abuse of women detailed in these reports violates the fundamental human rights of these women, and in particular violates international human rights norms. Returning Ms. Boje to the United States will subject her to the very real risk of the sexual and other abuses described in the above reports, in violation of international human rights norms.
11. I understand from personal conversations with Ms. Boje that she has already been subjected to sexual harassment and other forms of intimidation during her initial arrest relating to the alleged conduct for which the United States is seeking extradition. Ms. Boje told me that during a 72-hour period, she was strip searched 15 times, at least twice in view of male officers who made lewd and threatening remarks.
12. There is a clear consensus within Canada that aspects of the current marijuana laws are inappropriate and that current legislated prohibitions and penalties are excessive. In November 1997, a CTV/Angus Reid poll found that 83 percent of Canadians supported legalizing marijuana for medical purposes. In April 1999, a Decima Research Inc. poll found that 78 percent of Canadians strongly agree or agree with the government's consideration of legalizing marijuana as a medical treatment.
Attached hereto to this affidavit and marked as Exhibit "H" are copies of reports dealing with these two polls.
13. Editorials in several major newspapers in Canada have also reflected changing public sentiments about current criminal drug laws. They have either called specifically for an end to punitive marijuana laws or, more generally, for a rethinking of current drug laws based primarily on criminal prohibition.
On April 1, 2000, the National Post stated: "Marijuana legalization has long been the subject of academic debate. The time has come to turn conjecture into law."
On May 18, 1998, the Toronto Globe and Mail stated: "Prohibition does not work and cannot work, and its costs are higher than those of a policy of properly supervised and regulated access to drugs. Given that the elimination of drugs from our society is not an option, the G8 leaders should have been asking themselves how they can minimize the harm that drugs represent. As it is, their policies maximize the damage."
On June 14, 1998, the Toronto Star stated: There ought to be no letup in the "war'' against chemicals that kill. But the "smart weapons'' in that combat are education, development and sound public health practices. Not the courts, much less terror.
On April 16, 1997, The Ottawa Citizen stated:
In the first three editorials of this series, we argued that:
The legal status of drugs has no substantial effect on drug consumption.
Criminalization unnecessarily puts a lucrative trade in the hands of organized crime.
The impossibility of stopping drug use leads to drastic measures that corrode civil liberties.
The essence of freedom is the right to choose what to do with one s body, including choosing to ingest drugs.
For all these reasons, we support the decriminalization of drugs.
The first step would be the legalization of marijuana. For over a century, one commission after another has found that marijuana is no more harmful than alcohol or tobacco and may be much less so, given that marijuana-induced death is virtually non-existent, whereas in 1992 alcohol was at least implicated in 6,701 deaths and tobacco in another 33,498 deaths. Many such commissions have taken the next logical step of recommending legalization, most notably the 1972 LeDain Commission. In fact, in the 1977 throne speech Pierre Trudeau s government promised to legalize possession. Recently several senators braved the tough on crime mood to publicly support legalization. It is important to realize that marijuana would not be the first drug to undergo legalization. Alcohol has that distinction, and the framework that governs that drug's legal existence could provide a model for marijuana regulation.
Though we favour less government control of the alcohol trade, to allay public concerns about a future marijuana trade, producers could be licensed and taxed and sales permitted only through licensed establishments and government control boards -- though if things went well, we would then begin militating for the privatization of both alcohol and marijuana sales.
Attached hereto to this affidavit and marked as Exhibit "I" are copies of these editorials.
14. On Wednesday, June 19, 1996 (Debates of the Senate (Hansard), 2nd Session, 35th Parliament, Volume 135, Issue 33), Senator Sharon Carstairs spoke on the Third Reading debate on the bill that was to become the Controlled Drugs and Substances Act. She made it clear that current drug laws regarding cannabis, particularly the possession laws, were much too harsh:
Senator Carstairs: Honourable senators, during the hearing process of this bill, several senators went on the record as being in favour of the decriminalization of simple possession of marihuana: Senator Losier-Cool, Senator Doyle, Senator Jessiman, Senator Nolin, and, for a short period of time, Senator Gigantès. Today, I want to associate myself with those senators who went on the record as saying that they believe the time has come in Canada for us to recognize that an activity in which three million Canadians have at some time or other in their lifetime participated should not be considered a criminal act.
Honourable senators, we have changed our attitudes to marihuana over the years. When I taught at St. Francis High School in Calgary, I had a student who was convicted and sentenced to two years less a day for simple possession of marihuana - two years less a day because he had marijuana in his possession. Fortunately, we have left that dark age behind us, but I would remind honourable senators that the activity in which these young people are engaging - which they, by the way, consider far less damaging to their health than the consumption of alcohol or the smoking of tobacco - can result in their having a criminal record for the rest of their lives.
15. The federal Minister of Health has established a program under section 56 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, allowing individuals to apply for legal access to marijuana for medical purposes. The Minister described the program as follows: "Let us remember what this is about. This is about showing compassion to people, often dying, suffering from grave and debilitating illness. I want to thank the member and all the members here for pushing this issue so that we behave properly on behalf of those who are sick and dying." (Excerpt from House of Commons Edited Hansard, Number 241, Wednesday, June 9, 1999).
That same day, the Minister of Health issued a press release outlining a research plan regarding the therapeutic aspects of marijuana: "Moving forward on a research plan that includes establishing a quality Canadian supply of medicinal marijuana and a process to access it, is significant," said Health Minister Allan Rock. "The Plan reflects compassion and will also help build the evidence base needed regarding the use of marijuana for medicinal purposes." Attached hereto to this affidavit and marked as Exhibit "J" is the Minister's press release.
16. At its 2000 biennial convention, the Liberal Party of Canada passed the following resolution supporting the decriminalization of cannabis possession:
Whereas simple possession of marijuana continues to be a criminal offence in Canada;
Whereas marijuana laws have increasingly come under attack in courts and in public disclosure;
Whereas marijuana offences are no longer looked upon as true crimes by the majority of Canadians;
Whereas the Contraventions Act has been recently enacted to provide for a means of punishing an offence while reflecting on the distinctions between true criminal offences and other offences;
Be it resolved that the Liberal Party of Canada urge the federal government to immediately designate simple possession of marijuana as a contravention under the Contraventions Act.
17. I understand that some of the alleged offences for which the United States is seeking the extradition of Ms. Boje carry a mandatory minimum penalty of 10 years to life imprisonment and that there is no possibility of parole under these provisions, merely the possibility of a 15 percent reduction in time served for good behaviour. These penalties are grossly disproportionate to penalties that would be applied in Canada for similar conduct and do not reflect in any way the more tolerant attitude of Canadians and the Government of Canada concerning medical marijuana.
18. I further believe that the practice of U.S. prosecutors in offering reduced charges or the promise of seeking a reduced sentence for Ms. Boje's co-defendants in exchange for their testimony against her may make it impossible for her to receive a fair trial, since these co-defendants may falsify their testimony about Ms. Boje for the sake of reducing the penalties that they themselves face.
19. Because of the risk of sexual and other abuse of Ms. Boje in custody, in violation of international legal norms, and because of the excessive and disproportionate (in comparison to Canada) penalties she faces, and the danger that she will not receive a fair trial, it would be both unjust and oppressive to order Ms. Boje surrendered for extradition to the United States. Furthermore, given the documented history of abuse of women in American prisons, and the continuing failure of American authorities to address these problems, it would be insufficient for the Minister of Justice to order her surrendered for extradition and simply to seek assurances from the United States that Ms. Boje will be protected from mistreatment while in custody.
20. I swear this affidavit in support of Renee Boje's claim for refugee status in Canada from the United States and her request that she not be surrendered by way of extradition from Canada to the United States, and for no other or improper purpose.
SWORN BEFORE ME this ____ )
day of April, 2000, )
in the City of Ottawa )
in the Province of Ontario. ) ___________________________
Eugene Leon Oscapella
A Commisioner, etc.
Updated: 24 Jul 2001 | Accessed: 38978 times