The British Columbia Court of Appeal is raising serious questions about “procedural fairness” in the murder conviction of John Graham.
A Champagne and Aishihik First Nations citizen from Yukon, Graham was extradited to the U.S. in 2007 for the 1975 murder of Anna Mae Pictou Aquash in South Dakota.
Both were members of the American Indian Movement (AIM).
A jury found Graham guilty of felony murder in 2010 and sentenced him to life without parole.
In a decision released Tuesday, the Appeal Court says a special waiver that authorized U.S. prosecutors to pursue different charges than that 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.
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.
The appeal court found that the extradition order be sent back to Canada’s justice system for reconsideration.
Graham’s lawyer, Marilyn Sandford, called the decision a “win” for Graham, saying it means Lametti will review the waiver request with input from her client this time.
She also noted the outcome for her client isn’t clear, but a best-case scenario for Graham – who maintains his innocence – is that it could form the basis for a challenge of his U.S. conviction.
The case also appears to be the first time an application for judicial review has been made over a waiver of specialty, the decision says.
With files from the Canadian Press