BACKGROUNDER

ORDER TO EXTRADITE RODOLFO PACIFICADOR TO THE REPUBLIC OF THE PHILIPPINES: SUMMARY OF KEY FACTORS

The Republic of the Philippines requested the extradition of Rodolfo Pacificador in a diplomatic note to the Government of Canada dated September, 10, 1991. Because this request was made before the 1992 amendments to the Extradition Act, the case is governed by the rules as they existed at that the time of the request.

Mr. Pacificador is wanted in the Philippines to face charges of murder in connection with the alleged political assassination of Evelio Javier, a political candidate, on February 11, 1986 in the Philippines.

B. Mr. Pacificador's Submissions

Mr. Pacificador claims that he was denied a complete hearing of his claim to refugee status in Canada and that the process was tainted because Canadian officials traveled to the Philippines to assist in preparing the extradition request. Given these circumstances, he asserts that surrendering him to the Philippines would deny him his constitutional rights under the Canadian Charter of Rights and Freedoms.

He also claims that if he is returned to the Philippines, his prosecution will be for purely political motives and that the judicial and political systems in the Philippines could not grant him a fair trial or ensure his safety.

C. The basis for Minister Rock's Decision

>1. Applicable Law

In all cases, extradition is at the discretion of the Minister. In arriving at a decision, the Minister takes into account provisions of the Extradition Act, the terms of the extradition treaty between Canada and the requesting country, and the principles of fundamental justice set out in the Canadian Charter of Rights and Freedoms.

2. Refugee Determination

Mr. Pacificador entered Canada in October, 1987, and requested refugee status. On April 24, 1991, in a split decision, Mr. Pacificador passed the first level of a two-stage process, as it then was, in applying for refugee status. The first level is known as the «credible basis test».

Mr. Pacificador chose not to go on to the next phase of the process. This would have involved requesting landed immigrant status, which if granted, would have enabled him to request a full hearing before the Immigration and Refugee Board.

Since the onus was on Mr. Pacificador to apply for landed status and he alone decided not to proceed, his Charter rights were not violated.

3. Assistance by Canadian Authorities

Minister Rock stressed that assisting requesting countries in extradition matters is nothing out of the ordinary. Such assistance arises from Canada's obligations in extradition treaties.

It is meant to provide a mechanism whereby Canada can, when asked to execute an extradition request, provide related legal assistance to the requesting state. The assistance that was provided by the RCMP and Crown counsel in this case was given pursuant to the extradition treaty with the Philippines which provides that the Attorney General of Canada shall represent the Philippines in proceedings related to extradition.

Such assistance has been provided to other countries in various circumstances to ensure that the documents forwarded by the other countries will satisfy Canadian evidentiary standards. This is particularly important when dealing with countries, like the Philippines, whose legal systems are different than Canada's, and who have never presented an extradition request to Canada.

4. Prosecution Motives and the Adequacy of the Filipino Judicial System

Mr. Pacificador makes three specific claims regarding the motives and adequacy of the Filipino judicial system. First, his prosecution in the Philippines is politically motivated. Second, he has reason to fear torture and

execution upon return to the Philippines. Third, political influence results in a corrupt Philippine justice system with no credibility or integrity. Minister Rock carefully reviewed these claims, but ultimately rejected them.

In support of his submission that the prosecution is politically motivated, Mr. Pacificador attacked the sufficiency of the evidence and its credibility, in light of contradictions in various witness statements, to show that there was no case against him. The Minister did not agree that these factors indicated that the prosecution was politically motivated. The Canadian judiciary has determined that a prima facie case exists against

Mr. Pacificador. The prosecution, defence and judiciary in the Philippines will have access to the various statements; they will be able to address the credibility of the witnesses.

The Minister also emphasized that there is a new political regime in the Philippines which has confirmed the decision to prosecute Mr. Pacificador in this case.

With respect to submissions that Mr. Pacificador will face torture or execution upon return, there are a number of other recent events which make it seem unlikely that the Philippines will treat Mr. Pacificador in such a fashion.

For example, it does not appear that any other members of the Pacificador family in the Philippines have been ill-treated in any way; and Mrs. Imelda Marcos, the wife of the former President of the Philippines, has returned safely to the Philippines and is active in the political arena.

There also are other factors which mitigate against improper treatment of Mr. Pacificador and would increase the likelihood that he will treated fairly by the Philippines justice system. First, the media in the Philippines is open and free to criticize the government and institutions. Second, Mr. Pacificador is a high-profile political figure whose safety would likely be protected in the interests of political stability. Third, Mr. Pacificador is the first person ordered extradited under the terms of the treaty with the Philippines. The Philippines undoubtedly will want to show good faith in this case. Fourth, given the assurances sought and received, if anything were to happen to

Mr. Pacificador, any future extradition requests with Canada would be jeopardized. Finally, other countries with which the Philippines has negotiated, or is in the process of negotiating, extradition treaties will be influenced by how effectively the Philippines implements the terms of

Mr. Pacificador's extradition.

Regarding the credibility or integrity of the Philippine justice system, Canada signs extradition treaties only after consultation and review by the Department of Foreign Affairs to ensure that it is satisfied with the adequacy of judicial systems in treaty countries. It was also noted that the Philippines has made sincere efforts recently to improve its human rights record.

For all of the foregoing reasons, the Minister of Justice did not accept with Mr. Pacificador's submissions.

D. Death Penalty

As noted above, Mr. Pacificador expressed serious concerns that he would be executed upon his return to the Philippines. There also existed the possibility that he would face the death penalty if convicted. The death penalty was in force in the Philippines when Evelio Javier was murdered, but it was abolished in 1987 and did not exist at the time charges were laid or Mr. Pacificador's extradition was sought. It has since been re-instated.

Minister Rock dismissed Mr. Pacificador's contention that surrendering Mr. Pacificador to the Philippines where he could face the death penalty would violate his rights under section 7 of the Canadian Charter of Rights and Freedoms. Minister Rock is not required by law to request a waiver of the death penalty. However, given that there was a possibility of a "retrospective" application of the death penalty, Minister Rock sought and received assurances that if convicted, Mr. Pacificador would not face the death penalty.

E. Other Assurances: Timing of Trial

In light of the time that has passed since the alleged offence, the Minister has sought and received assurances that authorities would make their best efforts to ensure that Mr. Pacificador's trial would be completed within one year of his surrender to the Philippines.

F. Conclusion

The factors outlined above were all considered in Minister Rock's assessment of whether to order Rodolfo Pacificador extradited to the Republic of the Philippines. Minister Rock has determined that Mr. Pacificador's submissions do not establish that the extradition request was made for the purpose of prosecuting or punishing Mr. Pacificador for his political beliefs. The contention that

Mr. Pacificador's rights under section 7 of the Canadian Charter of Rights and Freedoms would be violated by extradition was also determined to be unfounded.