EXTRADITION

OVERVIEW

Extradition is the process in which one country requests the delivery of a person located in Canada to stand trial or serve a sentence for an offence in the country making the request.

Extradition in Canada is governed by the Extradition Act. Section 3(1) of the Extradition Act reads that  “a person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person”. The Act sets out a criteria that must be established before an individual is surrendered to a foreign country.

A foreign country needs to be an extradition partner under Canada’s Extradition Act to be able to request the extradition of a person. A person may be extradited from Canada only if the alleged criminal conduct in question and for which the extradition is requested is recognized as criminal by both countries. This is known as the principle of double criminality.

There are two ways a foreign country may make a request for extradition:

  1. Formal extradition request with supporting documentation
  2. Provisional arrest of a fugitive which must be followed by a formal extradition request

ARREST

When an individual is arrested following a request for extradition or provisional arrest, the person is brought before a Superior Court of Canada Judge to set a date for a bail hearing.

The International Assistance Group (IAG), a group within the Department of Justice Canada, is then tasked with determining whether an “authority to proceed” will be issued. An “authority to proceed” authorizes an extradition hearing to be held to consider whether the arrested person should be committed for extradition. The IAG must render a decision on whether to proceed within 30 days following the deadline for the formal request for extradition. The decision on whether to issue an “authority to proceed” is based on the criteria set out under the bilateral treaty between Canada and each individual foreign extradition partner. Canada cannot refuse to issue an “authority to proceed” where the request complies with the requirements of a treaty.

EXTRADITION HEARING

An extradition hearing in Canada is not a trial. It is a hearing to determine whether there is sufficient evidence to warrant the extradition of the person being sought. At the extradition hearing, the presiding Judge needs to determine one of the following:

  • If the request is to have an accused stand trial, the Judge must determine if the evidence provided by the foreign country is sufficient to commit the person for stand trial in Canada had the conduct/offence occurred in Canada.
  • If the request is for imposition or enforcement of sentence on a person, the Judge must determine if the conviction was in respect of conduct that would be punishable in Canada.

If the judge is satisfied with the evidence presented, the Judge will order that the accused be committed for extradition pending the Minister of Justices decision to surrender. If the Judge is not satisfied with the evidence presented, the person will be discharged and released.

SURRENDER OF PERSON

Once a Judge determines that the evidence provided is sufficient to warrant the extradition of the requested person, the Minister of Justice must decide whether the accused person will be surrendered to the foreign country. This is the sole discretion of the Minister of Justice; it is a decision that cannot be delegated. The Minister will consider submissions from the person committed for extradition, counsel for the defence and the Attorney General of Canada on why the person should not be surrendered to the foreign country.

It is important to note that a Canadian citizen can be the subject of an extradition order. Some foreign countries refuse to extradite citizens, but Canada permits it.

EXTRADITION TO CANADA

Canada may also make a request to extradite an individual from a foreign country to stand trial or serve a sentence in Canada. The foreign country will go through its own processes to respond to the request. Canadian officials will be advised of the progress of the proceedings. Canadian officers will bring back the person to Canada.

CANADA’S EXTRADITION PARTNERS

Albania, Argentina, Austria, Belgium, Bolivia, Chile, Colombia, Cuba, Czechoslovakia, Denmark, Ecuador, El Salvador, Estonia, Finland, France, Germany, Greece, Guatemala, Haiti, Hong Kong, Hungary, Iceland, India, Israel, Italy, Korea, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Monaco, Netherlands, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Portugal, Romania, San Marino, South Africa, Spain, Sweden, Switzerland, Thailand, United States and Uruguay.

DEFENCES

Extradition is a very serious matter. The Extradition Act does not require that punishment for a crime be equal to that of Canada. The Act does authorize the Minister of Justice to refuse extradition if capital punishment is a penalty. However, there have been instances where a country has agreed not to sentence someone to death and does so anyways. Accordingly, the potential penalty if extradited is very severe and once extradited, out of the hands of the Canadian government.

Nevertheless, there are ways to defend against extradition requests and orders. An experienced lawyer may be able to argue that the offence for which a person is being extradited for has not been made out, or that the offence is not an offence in Canada and if it is it is not one that carries with it a large sentence.

In addition to defending yourself at an extradition hearing, you may appeal the decision of the extradition judge and/or apply for judicial review of the Minister’s decision to a Court of Appeal. If the Court of Appeal upholds the decisions, the person may seek leave to appeal either decisions to the Supreme Court of Canada.

The law surrounding extradition is complex and difficult to apply, accordingly it is important to obtain legal advice and/or hire legal representation to assist with extradition related matters. An experienced lawyer would be able to review an extradition matter and provide the best options. If you or someone you know is involved in a extradition proceeds, or are the subject of an extradition order, contract Sack (Q.C.) and Bogle Law now. Our talented and experienced lawyers can help defend your rights.