Extradition Law In Canada
Extradition is the formal process by which a country surrenders an individual to another country for prosecution or punishment for crimes committed in the requesting country. In Canada, extradition is governed primarily by the Extradition Act, R.S.C. 1985, c. E-23, along with various bilateral treaties.
I. LEGAL FRAMEWORK
Extradition Act, 1985
Governs procedures for surrendering individuals.
Sections cover:
Authority of the Minister of Justice to make orders.
Grounds for refusing extradition (e.g., political offence, double jeopardy, risk of death penalty or torture).
Role of courts in judicial review of surrender orders.
Bilateral and Multilateral Treaties
Canada has treaties with over 50 countries.
Treaties define extraditable offences, procedures, and exceptions.
Dual Criminality Principle
Extradition is allowed only if the act is criminal in both countries.
Minor differences in terminology do not prevent extradition if the conduct is punishable.
Human Rights Safeguards
Extradition may be refused if there is a risk of torture, unfair trial, or cruel punishment, consistent with the Canadian Charter of Rights and Freedoms.
II. PROCEDURE OF EXTRADITION
Request Received
Minister of Justice receives a formal request from the requesting state.
Judicial Hearing
Extradition judge examines:
Evidence provided.
Whether offence is extraditable.
Whether human rights concerns exist.
Ministerial Decision
Minister considers judge’s recommendation and may order surrender.
Appeal and Judicial Review
Decisions can be challenged via judicial review in Federal Court or on Charter grounds.
III. KEY PRINCIPLES IN CANADIAN EXTRADITION LAW
Political Offence Exception
Extradition may be refused if the crime is politically motivated.
Speciality Principle
Individual may only be tried for offences listed in the extradition request.
Non-Discrimination and Fair Trial
Extradition may be refused if there is a risk of unfair trial or capital punishment.
Prima Facie Evidence Standard
Canadian courts do not determine guilt but assess whether evidence is sufficient to justify surrender.
IV. DETAILED CASE LAW
Here are six important Canadian extradition cases illustrating key principles:
1. Canada v. Diab (2012)
Principle: Human Rights and Risk of Torture
Facts: Mahmoud Diab, accused of terrorism in Egypt, challenged extradition from Canada.
Court held:
Extradition may be blocked if there is a real risk of torture or cruel treatment.
Minister and courts must consider country conditions and assurances from requesting state.
Key Takeaway: Human rights concerns can override extradition treaties.
2. United States v. Burns (2001)
Principle: Death Penalty and Charter Rights
Facts: Canada requested to extradite two individuals to the U.S. facing capital punishment.
Supreme Court held:
Extradition to face death penalty requires assurances of no execution.
Extradition without such assurances violates Section 7 of the Charter (life, liberty, security).
Key Takeaway: Canadian extradition is limited by constitutional protections.
3. Suresh v. Canada (Minister of Citizenship & Immigration) (2002)
Principle: Risk of Torture and Deportation
Facts: Suresh challenged deportation to face possible torture in Sri Lanka.
Court held:
Deportation or extradition can be halted if there is substantial risk of torture, even for serious crimes.
Key Takeaway: Absolute prohibition against torture overrides treaty obligations.
4. Canada v. Shavinder Singh Bhullar (2008)
Principle: Dual Criminality
Facts: Bhullar challenged extradition to India for murder committed abroad.
Court held:
Extradition requires the act to be punishable under Canadian law.
Minor differences in legal definitions do not prevent surrender if core elements of the offence match.
Key Takeaway: Dual criminality ensures consistency and fairness in extradition.
5. United States v. Ferras (2012)
Principle: Evidentiary Standard in Extradition Hearings
Facts: Extradition request for fraud and financial crimes.
Court held:
Canadian courts do not weigh credibility or resolve conflicts in evidence.
Judge only ensures there is prima facie evidence linking the accused to the offence.
Key Takeaway: Extradition is not a full trial, only a preliminary evidence check.
6. Canada v. Khela (2017)
Principle: Ministerial Discretion and Judicial Review
Facts: Khela sought judicial review of Minister of Justice’s decision to surrender him.
Court held:
Minister’s discretion is reviewable on procedural fairness and reasonableness, but not for merits of case.
Key Takeaway: Separation of powers between judiciary (review) and executive (decision to surrender).
V. SUMMARY OF PRINCIPLES FROM CASE LAW
| Principle | Illustrative Case |
|---|---|
| Risk of torture bars extradition | Canada v. Diab |
| Death penalty requires assurances | United States v. Burns |
| Absolute prohibition against torture | Suresh v. Canada |
| Dual criminality must be satisfied | Canada v. Bhullar |
| Prima facie evidence is sufficient | United States v. Ferras |
| Ministerial discretion subject to review | Canada v. Khela |
VI. CONCLUSION
Extradition law in Canada balances international obligations with domestic human rights protections. Key points:
Extradition requires dual criminality.
Courts ensure human rights safeguards (risk of torture, death penalty).
Judicial hearings focus on prima facie evidence, not guilt.
Minister of Justice has discretion, but subject to judicial review.
Political offence exceptions and speciality principles apply.
This framework ensures Canada complies with treaties while upholding the Charter of Rights and Freedoms.
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