FOLLOW-UP

Justice on trial

MICHAEL POSNER November 15 1982
FOLLOW-UP

Justice on trial

MICHAEL POSNER November 15 1982

Justice on trial

FOLLOW-UP

Mark MacGuigan, then Canada’s minister of external affairs, raised the Sidney Jaffe affair with Alexander Haig, then the U.S. secretary of state. Jean Chrétien, then Canadian justice minister, took it up with William French Smith, the U.S. attorney general. Alan Gotlieb, Canada’s ambassador to the United States, has voiced the subject a dozen times, presenting several notes of firm diplomatic protest. And last August Ottawa formally delivered a 47-page legal memorandum on the case to the U.S. department of justice. It is still awaiting a response with mounting impatience and suspicion. More than a year after it all began, the Jaffe matter continues to be a festering wound in Canadian-U.S. relations, involving basic principles of international law and delicate questions of bilateral diplomacy.

Jaffe, a 57-year-old Canadian lawyer and land developer, was forcibly abducted from the streets of downtown Toronto on Sept. 23, 1981, by two U.S. bounty hunters and flown to Florida to face 28 counts of violating the state’s Land Sales Practices Law. He was summarily convicted, fined $150,000, and

sentenced to 35 years in prison—an unusually stiff sentence for the crime. Pending appeals, Jaffe is serving time in Avon Park, a medium-to-maximum security institution in central Florida.

From the start Ottawa has asked that Jaffe’s conviction be set aside and that he be returned to Canada. His abduction, the Canadian legal brief contends, violates the U.S.-Canada extradition treaty, which normally governs the transfer of fugitives from one jurisdiction to the other. In denying the request so far, the U.S. justice department has cited the doctrine known as Ker Frisbie, now nearly a century old. Under it, U.S. judges tend to ignore offences committed in bringing an accused to justice—provided he receives due process in court. If crimes are committed in the apprehension of fugitives, the proper recourse, Ker Frisbie suggests, is not to free properly convicted felons but to prosecute the kidnappers separately. Jaffe’s abductors—U.S. residents Daniel Kear and Timm Johnsen— are now appealing extradition rulings; the Reagan administration is anxious to return them both to Canadian authorities, but the U.S. appeal process can often stretch into months or even years, another source of potential friction.

But Kear and Johnsen are essentially extraneous to the central Canadian complaint. Ker Frisbie, Canada argues, may limit an individual’s claim to asylum, but it is irrelevant to the basic right of Canada to grant or withhold asylum under the extradition treaty. That treaty has been violated because Kear and Johnsen acted with the express consent, indeed at the urging, of Florida officials. On one occasion a lawyer acting for the bonding agency that had originally put up the $137,000 bail for Jaffe (which he subsequently skipped) was told by state investigators: “Why don’t ya’ll go and get him,” since efforts to extradite Jaffe were bogged down in paperwork. Moreover, the case is buttressed by another decision in which the U.S. Supreme Court stated, “If the state court should fail to give due effect to the rights of the party under the treaty, a remedy is found in the judicial branch of the federal government.” That remedy would be either a writ of error or a writ of habeas corpus.

It is precisely that argument to which Jaffe, his family, his lawyers and the government of Canada have been awaiting answer. The U.S. state department is thought to be sympathetic to Canada’s case, fearful of another crisis in Canadian-U.S. relations. On the other hand, U.S. justice officials have refused to concede the legal merit of Ottawa’s argument—prepared by Washington lawyer Axel Kleiboemer. They are concerned about the consequences for Ker Frisbie and not eager to

stick Washington’s resented finger into state jurisdiction. However, one U.S. official concedes that there is “appropriate agonizing.” Ironically, that assessment is no less true in Ottawa, where External Affairs is defending the extradition principle, and the ministry of justice does not want the Jaffe affair to jeopardize enforcement co-operation between the two countries.

Nonetheless, Canada is not likely to drop its interest if Washington’s response is negative—as many close to the case assume it will be. Indeed, having argued the infringement of Canadian rights, abandoning Jaffe—in exchange, perhaps, for a new protocol to cover such grievances in the future— would be to abandon an important precept and to lose diplomatic face. At some point, therefore, a political decision will have to be taken: whether or not to deliberately risk an open conflict with Washington by seeking a writ of habeas corpus in the U.S. courts. That decision would fall to Mark MacGuigan, the new justice minister.

As for Sidney Jaffe, he must either pray that Ottawa’s efforts succeed, hope he wins on appeal or consider applying for transfer under the Prisoner Exchange Treaty. Technically, this would allow him to serve his sentence in Canada, but Jaffe would clearly be looking to Ottawa to grant an immediate pardon. And, so far, Canadian authorities have not signalled a willingness to declare such an amnesty.

-MICHAEL POSNER in Washington.