Andrew A. Duffy
Saturday, June 28, 2008
Whether disgraced investment adviser
Ian Thow is arrested in the U.S., Jamaica or anywhere else outside of
Canada, it could take months or even years before he faces a court in
this country, according to an extradition expert.
Former Victoria lawyer Gary Botting,
who has written two books and a number of articles on extradition law
and practice, said given the legal hoops and a complex appeals process,
"if he resists it could be a year, it could be two or longer." Thow has
been charged with 25 counts of fraud over $5,000 following a lengthy
investigation by the RCMP's Integrated Market Enforcement Team, but has
not yet been arrested.
According to IMET spokesman acting
sergeant Sammy Wu, police are working on that.
When asked yesterday if an arrest was
imminent, Wu would only say he could not comment.
"But I can say that it will happen," he
Thow is a former Berkshire Investment
Group vice-president who fled the country in the summer of 2005 amid
claims from former clients and creditors that he bilked them out of more
than $37 million. The victims said Thow convinced them to invest in
schemes that ranged from shares in a Jamaican bank to loans for
Vancouver developers and seed shares with his former employer.
When Thow left Canada he settled in
Seattle, although the Times Colonist learned recently he had been
spending time in Jamaica working on some kind of business deal.
The RCMP would not comment on whether
they believed he was on the run.
Botting said if Thow is arrested in
Jamaica, the Canadian authorities may have an easier time getting him
back to Vancouver than if he is in the U.S., despite the fact there is
no bilateral extradition treaty with Jamaica.
He said most Commonwealth countries,
including Jamaica, are designated as extradition partners under a
schedule in Canada's revised Extradition Act.
However, Botting pointed out while the
U.S. and Canada do have a treaty -- Canada has 51 bilateral extradition
treaties with countries around the world -- the U.S. does not
necessarily make extradition easy.
"It is a little more complicated in
extraditing from the U.S.," he said, noting it always requires the
Justice Department presenting the country in question with the details
of the case. "While Canada has proved to be more compliant, the U.S.
seems to recognize people have more rights." As a result, Botting argues
there is a bit of a double standard.
"Canada is compelled to give up people
who are being extradited on almost no evidence at all, whereas with the
U.S. the evidence has to be sufficient to make out a case for
indictment," he said.
According to an official from the
federal Department of Justice, the decision whether or not to make a
request for extradition is that of the prosecutorial authorities, who
would have conduct of the prosecution in Canada.
And granting extradition is decided by
the determining factors of dual criminality -- whether the alleged
offence a crime in both countries -- and the seriousness of the offence,
among other things.
Canada may also make a request to the
foreign country for the provisional arrest of the person in question,
although it will be Canadian officers bringing that person back to
But there is a long way to go before
that happens. At this point, Thow has yet to be arrested, and
authorities are not saying if they know exactly where he is for fear of
jeopardizing the operation.
That was the same reason given for the
delay in confirming charges, which had been prepared June 9 but not
announced until Thursday because the Crown did not want to compromise
police attempts to try and locate and arrest Thow.
Thow faces a maximum penalty of 10
years to 14 years per charge.