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In re Extradition of Harshbarger

January 6, 2009


The opinion of the court was delivered by: Mannion, M.J.


Pending before the Court is a complaint, Doc. No. 1, brought by the United States on behalf of the government of Canada. The Complaint seeks the extradition of Mary Beth Harshbarger from the United States to Canada. However, at this juncture, the complaint specifically seeks interim relief, viz., "a warrant ... pursuant to Title 18, United States Code, Section 3184, for the arrest of Mary Beth Harshbarger; that she [may] be brought before this Court and that evidence of [alleged] criminality [be] heard" in order to determine her extraditability. Doc. No. 1 at 2 (quoting prayer for relief). Having examined the government's ex parte complaint and submission, the United States-Canada extradition treaty and subsequent protocols, and statutory authority, the Court has determined that a warrant for arrest is not necessary, and, in lieu thereof, the Court will order a summons to be issued and served by the United States Marshall.


The United States (hereinafter "the Government") has filed an ex parte complaint (hereinafter the "Complaint") seeking, on behalf of the government of Canada, the extradition of Mary Beth Harshbarger to Canada for alleged crimes committed in the Canadian province of Newfoundland and Labrador on or about September 14, 2006. (Doc. No. 1.)

In addition to the Complaint, the Government also filed: (1) a request for extradition, Doc. No. 2; (2) the Declaration of Susan Torres, an Attorney-Adviser in the Office of the Legal Adviser, United States Department of State (hereinafter the "State Department"), with the diplomatic note of the Canadian Government to the State Department requesting extradition, and copies of the treaties and protocols governing United States-Canadian extradition, Doc. No. 3; (3) the affidavits of Stephen R. Dawson, the Senior Crown Attorney (Acting) at the Special Prosecutions Office in the provincial Department of Justice, a criminal information (hereinafter the "Information") supported by an affidavit sworn by Constable Doug Hewitt before Canadian Justice of the Peace Donna Antle, a Warrant of Arrest signed by Canadian Justice of the Peace Pamela Arnold, the affidavit of Constable Douglas Hewitt (hereinafter "Hewitt aff."), the affidavit of Lambert Greene, and a picture of the accused,*fn1 Doc. No. 4 & Exh. A; and (4) a proposed order sealing the Government's eighty-six page 5-part filing, Doc. No. 5. The Court signed the proposed order. Id.

The gravamen of the Complaint and the related filings is that on or about September 14, 2006, during a hunting trip in Newfoundland,*fn2 defendant Mary Beth Harshbarger, an American citizen, in a criminally negligent manner caused the death of her husband, Mark Harshbarger, when she mistook him for a bear*fn3 while he was coming out of the woods, and shortly after sunset,*fn4 shot and killed him. The Canadian authorities have since charged her with violating Sections 219(1) and 220(a)*fn5 of the Criminal Code of Canada (relating to criminal negligence*fn6 causing death of another -- where a firearm is used in the commission of the offense), and Section 86(1) of the Criminal Code of Canada*fn7 (relating to the commission of an offense in conjunction with the careless use of a firearm). Each offense, under Canadian statutory law, carries a penalty or potential penalty in excess of one year imprisonment.*fn8

Although an element of Section 220 is criminal negligence -- i.e., "show[ing] wanton or reckless disregard for the lives or safety of other persons" -- the affidavits offered in support of extradition make no factual claims to support finding any such heightened mens rea. At most, a fair reading of the affidavits suggests mere tortious negligence, if even that. One might even fairly construe the affidavits to suggest that all that happened was a horrific constellation of unfortunate facts, not even amounting to tortious negligence. In this respect, the Government's filing and the Canadian government's affidavits in support of their request for extradition are distinctly odd.

After the tragic death of Mark Harshbarger, Mary Beth Harshbarger was interviewed. She stated that "she thought she was shooting at a black bear when she shot [her husband]," who was some "200 feet" away when shot. See Dawson Aff. ¶¶ 12, 15. Canadian authorities conducted an investigation into the alleged crimes. The Canadian authorities went as far as to re-enact the events on September 16, 2006 and again on September 13, 2007. After conducting their investigation, the Royal Canadian Mounted Police investigator concluded: "it was too dark to hunt safely at 7:55 p.m. [the time Mark Harshbarger was shot]." Id. ¶ 14; Hewitt Aff. ¶ 21 (same); see also id. ¶ 16(ii) (concluding that Constable Hewitt "thought it plausible that Mary Beth Harshbarger may have felt that she was shooting at a bear. In my opinion, the lighting conditions were too dark to have fired a shot."); id. ¶ 16(iii) (stating that Cpl. Thibault concluded: "it is quite plausible that Mary Beth Harshbarger felt she was looking at a bear. Based on his observations and years of hunting experience, under the conditions as presented during this exercise, that he would not have taken a shot as it was just too dark"); id. ¶ 16(iv) (stating that Cpl. Eady concluded: "[t]hat even when looking through the scope of the rifle used in the incident, all that he could see was a dark mass").

More than six months following the second reenactment and more than one and a half years after the 2006 incident, Hewitt swore an information before a Canadian Justice of the Peace, and a warrant for the arrest of the defendant was issued. Id. ¶ 22. Thereafter, the Canadian government contacted the State Department and requested extradition. Id. ¶ 23. The State Department filed this action more than two years after the underlying events, and long after the defendant had apparently lawfully returned home, to the United States.*fn9 The Government alleges that the defendant may currently be found in Meshoppen, Wyoming County, Pennsylvania -- a location within the jurisdiction of the Court. Complaint ¶ 4.


Extradition between the United States and Canada is controlled by treaty and statutory authority. See Treaty on Extradition,*fn10 Dec. 3, 1971, U.S.-Canada, T.I.A.S. No. 8237 (as amended by protocols of 1988 and 2001); 18 U.S.C. §3184. Article 2 of the 1971 Treaty was replaced by Article 1 of the First Protocol. Article 1 provides for extradition under the so-called "dual criminality" standard, i.e., "Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment." First Protocol, art. 1.*fn11

The statutory framework for extradition is controlled by Section 3184, which provides:

Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of criminality may be heard and considered.... If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. 18 U.S.C. §3184 (emphasis added).

The critical step in the extradition process is the evidentiary hearing before a neutral judicial officer. The issues ...

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