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Crown Conflict Raised in Case
by Charlie Smith,
www.straight.com, September 30, 2004
(Revised October 13, 2004)

Defence lawyers have proposed some provocative legal arguments to prevent an East Vancouver Native man, John Graham, from being extradited to the United States. Department of Justice Canada lawyers are prosecuting the case on behalf of the U.S. government, which wants Graham sent to South Dakota to be tried for the notorious 1976 murder of Native activist Anna Mae Aquash. Her body was found in a ravine with a bullet wound in the back of the head.

Shortly after Graham was arrested last December in Vancouver, he told the Georgia Straight that he did not murder Aquash. Instead, he accused the FBI of orchestrating a civil war between Natives on the Pine Ridge reservation in the 1970s, which culminated in someone else murdering Aquash. Graham claimed that the FBI wanted to frame him because he was a member of the American Indian Movement.

At a B.C. Supreme Court hearing last July, a former member of his defence team, Lyn Crompton, suggested that the attorney general [Justice Minister Irwin Cotler] may be in a conflict of interest because he has a "fiduciary trust" with Graham, a Native. At the same time, Crompton said, justice department employees are working against Graham's interests trying to have him extradited.

"The Supreme Court of Canada has dealt with this issue but not in relation to a First Nations individual," Crompton said. "That has to be addressed."

In addition, she said the court must examine whether or not it is illegal to extradite the Yukon-born Graham because he is a member of a First Nation. After the July hearing, Graham told the Straight that he is a member of the Hutshi Lake band, which is part of the Champagne First Nation, which, along with Aishihik First Nation, signed a treaty with Canada in 1995.

A judge will determine if there is sufficient evidence to order Graham to be committed to extradition. Once this occurs, Justice Minister Cotler would make the final decision.

Crompton announced at the July hearing that after conducting more than 500 hours of legal research, she was quitting the defence team because of a lack of funding. At a B.C. Supreme Court hearing on September 28, one of Graham's other defence lawyers, Greg DelBigio, said that Crompton's arguments are still under consideration.

"The most active thing I can say at this point is it's still a live issue and being thought about," he said.

At the same hearing, another of Graham's lawyers, Terry La Liberté, told B.C. Supreme Court Justice Elizabeth Bennett that the defence team has limited financial resources to advance these arguments. DelBigio later said that the Legal Services Society has provided some legal-aid funding, though he didn't offer any details.

Bennett told the defence lawyers that if they don't have sufficient funding to advance their arguments, they should file a "Rowbotham application". These are applications to a judge to stay the proceedings until the accused person has sufficient funding to conduct a legal defence.

Bennett explained that as a result of a recent legislative change, the Legal Services Society would be financially responsible if the application was granted. Bennett added that she knows how many hours are involved in researching the history of First Nations legal cases, and she urged the defence team to find out where it stands with the Legal Services Society.

"Ms. Crompton told me she spent 500 hours researching," Bennett said. "I don't doubt that for a moment."

Last July, Crompton also questioned whether or not the 1999 Extradition Act could be applied to Graham, who is accused of committing the murder in 1976. DelBigio said it may also take three days for a separate hearing to deal with disclosure of Crown materials to the defence.

Bennett scheduled a hearing for November 1 for lawyers to report back on whether or not they planned to pursue Crompton's legal argument that the Crown is in a conflict of interest. At that time, the defence could decide if it is going to file a Rowbotham application.

In addition, a disclosure hearing is scheduled for November 15 to 17. Graham's extradition hearing will begin on December 6.