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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:
(a) the surrender would be unjust or oppressive having regard to all
(b) the request for extradition is made for the purpose of prosecuting
or punishing the person
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:
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.
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:
. . .
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.
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.
. -- 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.
. . . 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.
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:"
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.
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.
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:
[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. . . .
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:
. . .
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 . . ..
. . .
. . .
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
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
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.
In the first three editorials of this series, we argued
. . .
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.
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:
. . .
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.
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 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.
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: 33293 times