Summary of the Extradition Proceedings
in the case of Leonard Peltier

In December 1976, Leonard Peltier was surrendered to the United States following extradition proceedings in Canada. Mr. Peltier was subsequently convicted of two counts of murder in relation to the deaths of two Special Agents of the Federal Bureau of Investigation on the Pine Ridge Indian Reservation in South Dakota. He was sentenced to two consecutive life sentences, which he continues to serve at Leavenworth Penitentiary.

Summary of the Extradition Proceedings

On February 18, 1976, the United States formally requested the extradition of Mr. Peltier for five criminal offences, including the two counts of murder, two of attempted murder and a burglary charge. Mr. Peltier's extradition hearing took place over 18 days in May 1976. Six witnesses were called and approximately 30 affidavits were entered on behalf of the United States. Counsel for Mr. Peltier called ten witnesses. In addition, Mr. Peltier made an unsworn statement at the beginning of his case.

Among other things, the role of the extradition judge at Mr. Peltier's extradition hearing was to determine whether there was sufficient evidence adduced that if the conduct had been carried out in Canada, the judge would order the person to stand trial in Canada.

The test for committal for extradition to be applied by Canadian extradition judges was set out by the Supreme Court of Canada as follows: the extradition judge must determine whether there is any evidence upon which a reasonable jury properly instructed in the law could return a verdict of guilty. In other words, an extradition judge must order committal if there is any evidence, whether direct or circumstantial, upon which a jury could convict. In making this determination, the extradition judge cannot test the quality or reliability of the evidence, weigh the evidence, or consider the credibility of witnesses. These are matters reserved for the judge or jury at trial in the requesting state.

In the case of Mr. Peltier, the extradition judge noted in his reasons for judgment that with respect to the two murder charges there was both direct evidence and circumstantial evidence. The direct evidence was found in two affidavits sworn by Myrtle Poor Bear, who claimed to be an eyewitness to the shootings. The judge found that the evidence produced justified the committal of Mr. Peltier on the two murder charges. He also ordered committal on the burglary charge and one of the two attempted murder charges.

The order for committal was made on June 18, 1976. Following that, Mr. Peltier became aware that there was a third Poor Bear affidavit that predated and contradicted the two produced at the extradition hearing. In the third affidavit, Ms. Poor Bear stated that she had not seen the shooting but had left the Pine Ridge Reserve before the shooting of the F.B.I. agents occurred.

Mr. Peltier appealed his committal for extradition to the Federal Court of Appeal in October 1976. At the beginning of the hearing, counsel for Mr. Peltier made a motion before the Court to introduce the third Poor Bear affidavit as fresh evidence. Mr. Peltier's counsel argued that had this affidavit been before the extradition judge, it might have induced the judge to change his view on committal on the two murder charges. They also argued that the withholding of the third affidavit showed misconduct on the part of the U.S. authorities. The Federal Court of Appeal dismissed the motion and the hearing continued. At the end of the hearing, the Court upheld the order for committal in a unanimous judgment, without reasons.

Following the decision of the Federal Court of Appeal, Mr. Peltier did not seek leave to appeal to the Supreme Court of Canada at that time, but opted to make submissions to the then Minister of Justice asking the Minister to refuse to surrender him to the United States. In Canada then, as now, it was the role of the Minister of Justice to decide pursuant to the Canada - U.S. Extradition Treaty and the Extradition Act whether a fugitive who had been committed for extradition should ultimately be surrendered to the requesting state.

All three of the Poor Bear affidavits were before the Minister, as were extensive written and oral submissions made on Mr. Peltier's behalf. Among other things, it was argued that the submission by the American authorities of two of the Poor Bear affidavits without the third affidavit was evidence of misconduct on the part of the United States.

After considering the submissions, the Minister of Justice exercised his discretion to order Mr. Peltier's surrender, having sought and received assurances that Mr. Peltier would not face the death penalty if convicted and having satisfied himself that Mr. Peltier would receive a fair trial in the United States. [ A copy of the news release of the Statement by the Honourable Ron Basford, December 17, 1976 is attached to this summary.] Mr. Peltier was then surrendered to the United States.

Subsequent to his return to the United States, a jury convicted Mr. Peltier on two counts of first degree murder. Myrtle Poor Bear did not testify at Mr. Peltier's trial. Mr. Peltier's convictions have consistently been upheld by the United States Court of Appeals (8th Circuit), and the United States Supreme Court has denied his certiorari applications.

In 1989, Mr. Peltier sought leave to appeal the 1976 decision of the Federal Court of Appeal to the Supreme Court of Canada. The evidence used in support of Mr. Peltier's application included all three Poor Bear affidavits and new evidence that was not available at the time of the Federal Court of Appeal hearing. Once again, counsel for Mr. Peltier argued that there was fraud and misconduct on the part of U.S. authorities, including the withholding of the third Poor Bear affidavit. The Supreme Court of Canada refused to grant Mr. Peltier's application.

In 1993, Mr. Peltier applied for executive clemency in the United States. His application is still pending.

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