Justice Minister Anne McLellan released a report on Oct. 12 that concludes Canadian authorities followed proper procedure in the extradition of Leonard Peltier.
Peltier, an American Indian Movement member who was charged in the 1976 shooting of two FBI agents on the reservation at Pine Ridge, South Dakota, fled to Canada to escape prosecution. It has long been believed American authorities fabricated testimony to extradite Peltier to the U.S. He is currently fulfilling a life sentence for the crime.
In 1994, Erin McKey, a former Crown prosecutor who was working for Justice at the time, was brought to Ottawa to perform an independent review of the case. Her report, completed in May of that year, concluded the government had handled the extradition properly and that justice had been done. Five years later, under pressure from NDP MP Peter Mancini and others, McLellan released the report to the public in an attempt to prove the government had no need to re-open the case.
Within days, former Cabinet member Warren Allmand released a point-by-point dissection of McKey's report. Allmand, a former Trudeau-era minister of Indian Affairs and Solicitor General of Canada, also released a copy of a letter he wrote in 1995 to then Justice Minister Allan Rock.
Previously, Allmand had refused to release his letter, saying his Privy Council oath prevented him from doing so.
"I felt that by releasing my letter, I wasn't revealing any fact that [McLellan] hadn't already released," Allmand told Windspeaker. "So, I spoke to people in her office and said I'm going to release it and they said, 'Well, that's up to you.' I said there's nothing in my letter . . . you know, if the department or the government goes after me, I'll argue there was nothing in my letter, as far as revealing facts was concerned, that wasn't already revealed by her."
Now director of the Montreal-based International Centre for Human Rights and Democratic Development, Allmand has been actively pressing the government of Canada since the late 1970s to re-open the Peltier case. Allmand believes, after being allowed by Minister Rock to thoroughly examine all departmental records concerning the case, that the FBI submitted false and misleading information to the court during Peltier's extradition hearing.
Myrtle Poor Bear, a woman who lived on the Pine Ridge reservation at the time of the shooting, made three statements to police. Two of those statements claimed she had seen Peltier shoot the agents. The other, completely contradictory statement said she wasn't at the scene at all and didn't see anything. The Vancouver court that granted the FBI's request that Canada turn Peltier over to them, didn't get to see the third statement and was not aware of its existence.
"My bottom line is that if the three affidavits had been before Judge Schultz, there wouldn't have been any extradition. And their suggestion that he considered circumstantial evidence . . . he didn't really because he thought with the two affidavits he had, he didn't really have to look at it," Allmand said.
A lawyer himself, Allmand said the Justice department review is marred by the type of error criminal prosecutors are known to make.
"They're saying, 'If we were the judge and we had these three things before us, we would have still extradited.' Well, they weren't the judge and the person advising them is advising them like a Crown prosecutor. As I put down in my letter to Rock, Crown prosecutors have a tendency always to think they have a better case than they have. They have a certain amount of circumstantial evidence and they go to court and they lose. They don't prove it beyond a reasonable doubt. And Erin McKey was a Crown prosecutor," he said.
Reading between the lines of both reports - Allmand's and McKey's - a picture of manipulation and deceit with the intent to railroad the Native activist begins to emerge. Both reports deal with the possibility the late Paul Halprin, a Canadian Department o Justice lawyer who was appointed to argue the FBI's case during the hearing, was aware of the contradictory Poor Bear affidavit.
"He insisted to the very bitter end that he did not know. The officials at the Department of Justice say he did not know and the American officials are divided - one said he did and the other said he didn't," Allmand said. "One official said he travelled down and looked at the three [affidavits] and he gave advice as to what they should do. Knowing how the FBI operates, I can't see them doing what a middle range Canadian official suggests. I would speculate that even if Halprin was there and he knew, they would say, 'Here's what we want to do. You make sure it fits.'"
Allmand pointed out contradictions in the McKey report.
"At one point she said it was hard for her to find out about circumstantial evidence at the extradition because very little was said about it, then later on she says there's all kinds of things to be said about it. Reading between the lines, you can trip her up," he said.
The former Cabinet minister did not want to answer "yes" when asked if he believed the Justice review made up its mind what its findings would be and then set out to justify those findings. But he did say that it's obvious to him, based on the inconsistencies in the report, that a close look was not taken.
"'If you try to say they didn't look at it, [McLellan] will argue that they did look at it. They had this internal review and they looked at it afresh. We're saying it wasn't done independently and now we're asking for an independent external review. We're looking at ways now where, if the government won't finance it, we'll try and finance it ourselves. We're talking to people in the Canadian Labor Congress and other trade unions who might help," he said.
As an exceptionally experienced political veteran, Allmand was asked to speculate about possible reasons why the government is not willing to revisit a decision made more than 20 years ago.
"I thin it's - I'm speculating because nobody really knows what led [McLellan] to her decision - that the people who originally advised former ministers of Justice, who are responsible for the original opinion, are still there and she doesn't have the time to really go to the bottom of the thing herself. So when push comes to shove, she says to her senior officials, 'Well, what should I do?' They say, you should stick with the same position we've had for the last 10 or 15 years,'" he said. "Once they've taken a position, they hate to admit they're wrong. I convinced Rock that he couldn't rely on them and I guess they didn't like that. I said, 'You can't rely on your senior officials because they're going to tell you the same thing and this thing stinks and you should take an independent look at it.'"
Asked if the Canadian government was showing undue deference to what appears to be American wrongdoing in a Canadian court, Allmand said he'd anticipated that possibility.
"I knew from the beginning when I was pressing for this over the last year or so that they'd have to go through the Department of Foreign Affairs. If you're going to criticize any government in the world, whether agriculture or justice, you've got to clear it there. So I raised it with [External Affairs Minister] Lloyd Axworthy and sent him all the materials, too, saying you may be getting an approach from the minister of Justice about this case. I was optimistic at that time. I said I want you to know I wouldn't want you to turn it down if she says go ahead. But it didn't get to that point," he said. "Whether the reason is they don't want to embarrass the United States, I don't know. In my letter to Axworthy, I said this shouldn't cause you any trouble because you just criticized the execution of Faulder, the guy from Alberta. Lloyd Axworthy intervened with the United States Attorney General and with the governor of Texas, saying you shouldn't do this, you broke the law, you didn't follow the treaty and avise us at the time of the trial, so he shouldn't be executed. If you do that in that case, here we have a case where the Americans put phony affidavits before our courts. Surely you can criticize them here."
Since the federal government has no interest in pursuing this case, Allmand is looking at other options.
"We've got to try and build up public opinion in favor of doing something because if it's just two or three of us saying something's wrong here, we know the politicians won't move," he said. "Also, we're still examining ways of taking this before UN human rights bodies. It happened in the Lovelace case. That certainly changed . . . when the UN committee on human rights said there was discrimination against Canadian Aboriginal women in the Indian Act, you know, they never budged before but they amended the act within months. You have to prove that you've exhausted every remedy in Canada, and the Americans haven't ratified the optional protocol for the Covenant on Civil and Political Rights, so an American cannot go to the human rights committee. It would have to be a Canadian. How are we going to connect a Canadian having an interest? In other words, Peltier himself couldn't do it. Could somebody go to the committee saying they have a grievance when the grievance is really Peltier's? It's a technical thing. There may be some way of doing it but it's not obvious to me right now. If the Americans had ratified it, Peltier could go because he's exhausted every remedy there, but the Americans don't want anyone going to a body outside the United States."
National Chief Phil Fontaine told Windspeaker his organization also intends to pursue the matter beyond the federal announcement that it would not take further action.
"We passed a resolution, as did the National Congress of American Indians, in Vancouver in July that speaks to the issue of the Leonard Peltier case. There are a number of other cases where our people were wrongfully incarcerated. When we were in Wa