Extradition involves the surrender of a person by a state (such as Canada) to another state or, in some cases, to an international organization, to allow for trial of that person by the receiving state or organization.

 Under traditional international law, there was no obligation to surrender a person to another state.

Friendly countries started to enter into treaties with each other and eventually the network was so large that the common partners to these extradition treaties standardized its terms and subscribed to an international “multilateral” agreement or convention.

It is the federal Minister of Foreign Affairs, in concert with the federal Minister of Justice, that manages Canadian participation in extradition treaties and conventions.

Some countries – Canada excepted – and international human rights notwithstanding, only allow the extradition of foreigners. 

In 2007, the RCMP-Interpol website listed the following countries as having extradition treaties with Canada: 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.

In 1999, Canada brought in a spanking new Extradition Act (at http://laws.justice.gc.ca/en/E-23.01/), replacing a statute that had been kicking around since 1877. The new legislation made substantial changes to the existing regime.

Some practitioners would call the comprehensive amendments an improvement and a harmonization of the Canadian extradition system with international crime-fighting systems, while others would say that the 1999 reform took away vital protections previously available to Canadians and renders Canadians vulnerable to extradition to governments that cannot be described as free and democratic.

Extradition is different from its immigration look-alike: deportation.

Extradition law has an extreme learning curve because of the interplay between criminal law, statute law and international law.

No reliance whatsoever should be had in this article for the purposes of making any real-life extradition decisions. For that, a person must consult a lawyer failing which their life or liberty may be at risk.

Political qualifications aside, this article purports to describe, in summary form, the Canadian extradition system. 

The 1999 reforms eliminated a dual system previously in place: one with British Commonwealth colleagues and another for the rest of the world.

The 1990 reforms also removed the administratively-heavy list system wherein unless an offense for which extradition was sought, was specifically listed, extradition was not available. The new process instead requires a analysis of the alleged offense for which extradition is sought and if a similar offense prevails in Canada, and carries a prescribed incarceration term of at least two years (five in some cases), the "dual criminality” test will have been met.

In theory, the dual criminality requirement would prevent the extradition of a person charged with a purely political offence.

The receivability of evidence from a treaty partner has been made easier and Canada can now extradite not only to other countries but directly to select international agencies such as international war crime tribunals. Canada also now has the ability to extradite on a case-by-case basis, whether there is a comprehensive extradition treaty in place or not. However, in all cases, there must be an agreement between Canada and the receiving country, whether it be a treaty, a multilateral convention or a person-specific agreement.

Generally, requests for extradition of persons in Canada are usually only received because another country wants to prosecute that person or to impose or enforce a sentence already rendered against him/her.

The extradition process from Canada may be described as a 3-step process.

The first step is the receipt by Canada of evidence from another state that the alleged conduct of the person sought while that person was in the jurisdiction of the requesting country, would have been a crime if committed in Canada (“dual criminality”) and which could have been punishable by two or more years of incarceration.

In some cases, depending on the requesting jurisdiction, the threshold might be five years of incarceration if the alleged crime had been committed in Canada.

In this way, extradition law seeks to allow the surrender of an individual to criminal prosecution by another country for only the most serious crimes.

Following the receipt of this evidence, the minister of justice makes arrangements to have the individual arrested. Once arrested, the person may be released on bail or other conditions, or may be held in custody pending the extradition hearing.

The 2005 Federal Prosecution Service Deskbook gave the following "factors" that support seeking a "provisional arrest warrant":

• a basis to believe that the person may flee the jurisdiction or fail to appear in court if no arrest is made;

• previous flight from another jurisdiction;

• attempts by the person to keep their presence in Canada or abroad secret, or the ability to the possibility that the person will compromise or otherwise adversely affect the proceedings or the investigation abroad, for example, by intimidating or harming witnesses or destroying physical evidence;

• the person's involvement in crimes in Canada;

• the possibility that the person will carry out criminal offences in Canada;

• the existence of accomplices abroad or in Canada;

• the existence of passports, or assets in another jurisdiction; and

• any other factor suggesting that arrest would be in the public interest.

The second step is the extradition hearing which occurs in front of a judge and in public, although the judge may issue an exclusion order or a ban on publication of evidence.

At the extradition hearing, the judge must satisfy himself that the person before him is in fact the person identified by the requesting state. The judge must also satisfy himself with respect to the “dual criminality” issue. And even on this issue, it is not necessary that the offense have the same name in both jurisdictions.

At the extradition hearing, full Charter of Rights and Freedoms rights are not afforded to the person for whom extradition is being sought. In particular, the extensive disclosure rights given to Canadian citizens facing a domestic criminal trial are not available in extradition procedures (US v Kwok 2001 1 SCR 532). Some - but not all - Charter rights are available.

Further, the threshold for committal to the Minister of Justice is not the traditional criminal law threshold “beyond a reasonable doubt”. The threshold was set out in Ho v Australia 2000 BCSC 1744 (at http://www.courts.gov.bc.ca/jdb-txt/sc/00/01/s00-0153.txt), qutoting from United States v Dynar (at http://www.canlii.com/en/ca/scc/doc/1997/1997canlii359/1997canlii359.html):

“... the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.”

“The role of the extradition judge is a modest one in holding, not a trial, but an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations. The procedure is to determine whether a prima facie case has been made out that would justify the Applicant’s committal for trial if his conduct had taken place in Canada.”

At the end of the extradition hearing, the judge must either discharge the person or order his/her committal to the Minister of Justice. There is a 30 day appeal or judicial review.

The third step of the extradition process from Canada involves the Minister of Justice. This last process can be heavily political.

In practice, extradition matters are often expedited by way of waivers and consents. For example, in 1910, when Dr. Hawley Harvey Crippen was arrested in Quebec City for the well-publicized murder of his wife in England, he waived his right to extradition proceedings in Canada and agreed to return right away to England to face trial (he was tried and ultimately executed before the year was out).

For lawyers with a "challenging" extradition case, waivers and consents can be useful as a bargaining chip with a requesting jurisdiction in terms of plea bargaining or when a person prefers to advance directly to stake his or her’s case before the Minister of Justice because the latter may have the discretion to not hand over the person, notwithstanding the result of the extradition hearing. Some of those grounds include:

• surrender would be unjust or oppressive having regard to all the relevant circumstances;

• the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons;

• the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner;

• the conduct in respect of which extradition is sought is a political offence or an offence of a political character;

• the person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction;

• the person was convicted in their absence and could not, on surrender, have the case reviewed;

• the person was less than eighteen years old at the time of the offence;

• the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or

• none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.

If the Minister of Justice does not discharge the person, he/she is then surrendered to the other state and the extradition process is essentially complete.

Lloyd Duhaime
Barrister & Solicitor
Victoria, B.C.