Extradition

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General Principles

The minister's discretion to extradite is necessary for the effective enforcement of the criminal law and so deserves a high degree of deference.[1]

The decision of the Minister to make a surrender order is reviewed on a standard of reasonableness.[2] Courts should interfere with these political decisions only in the "clearest of cases".[3]

Section 6 of the Charter protects Canadian citizens in matters of extradition. It states that "[e]very citizen of Canada has the right to enter, remain in and leave Canada".[4]

When interpreting any provisions within the Extradition Act, s. 3 requires that any inconsistency between the Act and a treaty, precedence should be taken by the treaty.[5]

  1. Sriskandarajah v United States of America, 2012 SCC 70 (CanLII) at para 11
    United States of America v Cotroni, 1989 CanLII 106 (SCC) at p. 1497
    United States of America v Kwok, 2001 SCC 18 (CanLII) at paras 93-96
    Lake v Canada (Minister of Justice), 2008 SCC 23 (CanLII), [2008] 1 SCR 761, at para 34
  2. Farinha v Canada (Attorney General), 2013 BCCA 243 (CanLII) at para 15
    See Lake v Canada (Minister of Justice), supra at para 34
  3. Lake at para 30
  4. Section 6 of the Charter
  5. Bourgeon v Canada (Attorney General), 2000 CanLII 22635 (ON SC) at para 6

Disclosure

The disclosure obligations associated with extradition is different than those of criminal proceedings.[1] Criminal obligations are based on the right to full answer and defence, while extradition is governed by treaty and statute.[2] Extradition does not concern itself with guilt or innocence.[3]

The disclosure obligation covers two categories of materials:[4]

  1. those materials upon which the requesting state seeks to rely to establish a prima facie case for committal; and,
  2. those materials relevant to a Charter issue that is properly justiciable before the extradition judge and to which there is an "air of reality".

Where there is a request for disclosure on the basis that it is relevant to an allegation of state misconduct, the applicant must establish: [5]

  1. the allegations must be capable of supporting the remedy sought;
  2. there must be an air of reality to the allegations; and
  3. it must be likely that the documents sought and the testimony sought would be relevant to the allegations.

An "air of reality" refers to "some realistic possibility that the allegations can be substantiated"[6] The test will not be made out where:[7]

  1. the basis of "bald assertions" in the notice of motion;
  2. "vague and unsubstantiated suggestions";
  3. "conjecture or speculation"; or
  4. allegations made in the absence of an "offer of proof"
  1. United States v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462 at paras 130-31
  2. United States of America v Trotter, 2013 BCSC 813 (CanLII) at para 16
  3. USA v Kwok, 2001 SCC 18 (CanLII) at para 99
  4. United States v Costanzo, 2009 BCCA 120 (CanLII) at para 25
  5. R v Larosa, 2002 CanLII 45027 (ON CA), (2002), 166 CCC (3d) 449 at para 76 (Ont. C.A.)
    USA v Trotter at para 20
  6. Larosa at para 78
    USA v Trotter at para 21
  7. United States v Doak, 2012 BCSC 1788 (CanLII) at para 54
    USA v Trotter at para 22


Provisional Arrest

Under s. 12 to 14 of the Extradition Act, a judge may only grant a provisional arrest warrant where the arresting officer has reasonable grounds to believe that:[1]

  1. the arrest is necessary in the public interest
  2. the person is either an ordinary resident of Canada, is in Canada, or is on his way to Canada;
  3. a warrant has been issued by the requesting state.
  1. USA v Quintin, 2000 CanLII 22657 (ON SC), [2000] O.J. 791

Order of Committal

An order of committal concerns the power of the superior court judge to order the detention of the person being extradited.

Order of committal
29. (1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and
(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

...


EA


Surrendering Detainee for Extradition

Powers of Minister
Surrender
40. (1) The Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner. When refugee claim
(2) Before making an order under subsection (1) with respect to a person who has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall consult with the minister responsible for that Act.
1999, c. 18, s. 40; 2000, c. 24, s. 51; 2001, c. 27, s. 250.


EA

The minister should make an order to surrender only where he is satisfied that "extradition is more appropriate than domestic prosecution". [1]

The minister should consider factors such as:[2]

  • Where was the impact of the offence felt or likely to have been felt?
  • Which jurisdiction has the greater interest in prosecuting the offence?
  • Which police force played the major role in the development of the case?
  • Which jurisdiction has laid charges?
  • Which jurisdiction has the most comprehensive case?
  • Which jurisdiction is ready to proceed to trial?
  • Where is the evidence located?
  • Is the evidence mobile?
  • How many accused are involved and can they be gathered together in one place for trial?
  • In what jurisdiction were most of the acts in furtherance of the crime committed?
  • What is the nationality and residence of the accused?
  • What is the severity of the sentence that the accused is likely to receive in each jurisdiction?

There is no requirement for alignment between the surrender order and the extradition order.[3]

  1. Sriskandarajah v United States of America, 2012 SCC 70 (CanLII) at para 12
  2. Sriskandarajah v United States of America at para 12
    United states of america v Cotroni; united states of america v el zein, 1989 CanLII 106 (SCC), [1989] 1 SCR 1469
  3. United States of America v Barbu, 2010 ONCA 891 (CanLII)

Charter Voir Dire

The respondent does not have a right to allege a Charter breach as of right.[1] The court has discretion to allow the respondent to allege a breach. The court must consider whether it will "assist the proper trial of the real issues."[2]

  1. USA v Trotter at para 47
  2. USA v Trotter at para 47

Request by Canada for Extradition

Section 78 of the Extradition Act authorizes a government agency (a "competent authority") to seek the Minister to file a request for extradition of a person to be brought in for a trial, sentencing, or service of a sentence.

Request by Canada for extradition
78. (1) The Minister, at the request of a competent authority, may make a request to a State or entity for the extradition of a person for the purpose of prosecuting the person for — or imposing or enforcing a sentence, or making or enforcing a disposition under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, in respect of — an offence over which Canada has jurisdiction.


Provisional Arrest Warrant

A provisional arrest warrant may be issued by a judge at the request of the Minister who has received requests from an extradition partner.

Warrant for Provisional Arrest
Minister’s approval of request for provisional arrest
12. The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that

(a) the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); and
(b) the extradition partner will make a request for the extradition of the person.

Provisional arrest warrant
13. (1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;
(b) the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and
(c) a warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.


When a provisional warrant is issued, Interpol may issue a Red Notice for the arrest of the accused.

Evidence

Section 32 to 37 of the Extradition Act addresses the rules of evidence for extradition process.

Rules of Evidence
31 For the purposes of sections 32 to 38, document means data recorded in any form, and includes photographs and copies of documents.
Evidence
32 (1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

(a) the contents of the documents contained in the record of the case certified under subsection 33(3);
(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and
(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

Exception — Canadian evidence
(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.
...
Authentication not required
(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.
Record of the case and supplements
(5) For the purposes of this section, a record of the case includes any supplement added to it.
Oath or solemn affirmation
34 A document is admissible whether or not it is solemnly affirmed or under oath.
No proof of signature
35 A document purporting to have been signed by a judicial, prosecuting or correctional authority, or a public officer, of the extradition partner shall be admitted without proof of the signature or official character of the person appearing to have signed it.
Translated documents
36 A translation of a document into one of Canada’s official languages shall be admitted without any further formality.
Evidence of identity
37 The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and
(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.


EA

Section 34 which abolishes the prohibition of accepting evidence that has not been given under oath or affirmation does not violate s. 7 of the Charter.[1]

  1. Bourgeon v. Canada (Attorney General), 2000 CanLII 22635 (ON SC), per Ewaschuk J, at para 46

Hearsay Records

There are a number of means through which the Extradition Act permits hearsay or otherwise inadmissible evidence to be admitted at an extradition hearing.

Section 32(1)(b) permits the admission of evidence that would otherwise be inadmissible where it conforms to the associated extradition treaty or agreement.[1]

Record of The Case
Section 32(1)(a) permits evidence the admission of the "record of the case", which is defined in s. 33(1) as:

Record of the case
33 (1) The record of the case must include

(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; and
(b) in the case of a person sought for the imposition or enforcement of a sentence,
(i) a copy of the document that records the conviction of the person, and
(ii) a document describing the conduct for which the person was convicted.

Other documents — record of the case
(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.
Certification of record of the case
(3) A record of the case may not be admitted unless

(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and
(i) is sufficient under the law of the extradition partner to justify prosecution, or
(ii) was gathered according to the law of the extradition partner; or
(b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.


Constitutionality
Section 32(1)(a) and (b) violate s. 7 of the Charter but is still valid under s. 1 of the Charter.[2]

  1. Bourgeon v. Canada (Attorney General), 2000 CanLII 22635 (ON SC), per Ewaschuk J, at para 6
  2. Bourgeon v. Canada (Attorney General), ibid. at para 69