Graham: American Extradition on Trial

On June 26 the Court of Appeal for British Columbia unanimously upheld a lower court decision committing Yukon resident John Graham for extradition to the United States, where he is to be tried for the three decade old South Dakota murder of Anna Mae Aquash. The United States alleges that Graham, a former American Indian Movement (A.I.M.) activist, had been ordered to kill Ms. Aquash, also a member of A.I.M., because she was suspected by the movement of being a F.B.I. informant.

In 1973 Graham and Aquash participated in the violent stand-off between U.S. law enforcement and A.I.M. activists at the Pine Ridge Indian Reservation in South Dakota. U.S. officials allege that two years later, Graham and another man, Fritz Arlo Looking Cloud, received orders from the American Indian Movement to track down Aquash in Colorado, bring her back to South Dakota, interrogate her and kill her.

While Aquash’s body was discovered by U.S. police in 1976, the investigation stalled until the mid-1990s, when police began focusing upon Looking Cloud. In 2004 Looking Cloud was tried separately and convicted before a Federal Court in South Dakota. Looking Cloud’s appeal to the U.S. Court of Appeals for the Eighth Circuit was dismissed in August of 2005.

For his part, Graham contends that he had nothing to do with the murder of Aquash and that the U.S. government holds little more than hearsay evidence to suggest otherwise. Indeed, the case raises a number of important questions regarding the place of evidence within Canadian extradition law and the role of Canadian courts in determining whether to grant the extradition of an accused to a requesting state.

Standing before the B.C.C.A., Graham’s counsel requested a new committal hearing on the basis that the extradition judge, unaware of the discretion available to her, did not adequately assess the sufficiency of the prosecution case. Relying heavily on the SCC case of Ferras, 2006 SCC 33, which had only been released after the original committal order, Graham’s counsel argued that the Record of the Case was so pocked with numerous and overwhelming evidentiary gaps that extradition could not reasonably proceed.

Ultimately, however, while the Court of Appeal recognized certain inconsistencies in the Record of the Case, they remained convinced of its sufficiency. Upon careful examination, they interpreted Ferras to give extradition judges not only the discretion to disregard unreliable evidence, but also the discretion to assess the remaining evidence so as to determine whether it would be sufficient for a properly instructed and reasonable Canadian jury to reach a guilty verdict. Thus, applying the test in Ferras, Donald J. determined at para. 36:

In my opinion, a properly instructed jury acting reasonably could convict on the evidence that the appellant brought the deceased from Denver to South Dakota and there carried out her execution with the assistance of Looking Cloud.

Yet, as much as this case is about the evolution of Canadian extradition law, it also belies a powerful subtext regarding the Canadian perception of the integrity of the legal system of our frequent extradition partner, the United States. This is particularly the case as it relates to the U.S. government’s interaction with Aboriginal activist movements. Indeed, within both the newsmedia and the popular imagination, the case of John Graham has evoked compelling parallels to the case of another well-known extradited Canadian First Nations activist, Leonard Peltier. That Graham’s counsel has whole-heartedly encouraged such parallels should come as little surprise.

Early this month Graham applied to the Supreme Court of Canada for leave to appeal.