Judges question 'procedural fairness' in B.C. extradition case over 1975 murder of Indigenous activist

A panel of judges in British Columbia's Court of Appeal says important questions about "procedural fairness"have been raised in the case of a man convicted of murder in the United States.

John Graham was extradited to the U.S. in 2007 and convicted three years later in the 1975 murder of Anna Mae Pictou Aquash, a member of the American Indian Movement who was found dead in South Dakota.

In a decision released Tuesday, the Appeal Court says a special waiver that authorized U.S. prosecutors to pursue different charges than those Graham was originally extradited to face should be sent back to Canada's justice minister for reconsideration.

It says former Conservative minister Rob Nicholson signed the waiver for U.S. prosecutors in 2010 after they ran into challenges in their federal case against Graham and wanted to pursue state charges instead.

The court says Graham was not notified of the waiver request and did not see it until after he was sentenced to life in prison with no chance of parole.

His lawyer Marilyn Sandford says the outcome for her client isn't clear, but a best-case scenario for Grahamwho maintains his innocence is that it could form the basis for a challenge of his U.S. conviction.

The decision says lawyers for Justice Minister David Lametti accepted in court that procedural fairness would entitle Graham to get notice of the waiver request, giving his lawyers a chance to make submissions to the minister.

"Put otherwise, the minister accepted that the duty of fairness owed with respect to a waiver decision is equivalent to that owed with respect to a surrender decision,'' Justice David Frankel says in the written decision.

A so-called "waiver of specialty'' significantly affects the rights of the person sought, the decision says.

"If a waiver is consented to, then that person can be prosecuted for offences other than those for which they were surrendered and, in some cases, will be liable to punishment greater than that which can be imposed for the offences for which they were surrendered.''

The case appears to be the first time an application for judicial review has been made over a waiver of specialty, the decision says.

The Justice Ministry did not immediately respond to a request for comment. Sandford called the decision a "win'' for Graham, saying it means Lametti will review the waiver request with input from her client this time.

The fact that Graham has already been tried and convicted in the United States is a "wrinkle,'' she says. Had the decision come before the trial it might have changed its course.

"Is it clear what the legal path would be? Not necessarily,'' she says. "But at the same time there's always potential for a result that would be in Mr. Graham's favour and would lead to his release.''