Liberty and justice for all United States persons abroad

The Isaac Brock Society

Posted on by Posted in Issues regarding US persons abroad 18 Comments

On December 14, 2012 the Supreme Court of Canada, in the unanimous decision in Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 authored by (then) Chief Justice McLachlin, confirmed the extradition of Suresh Sriskandarajah to the United States. The decision was short, to the point and expressed the court’s view that extradition decisions were within the discretion of the Minister Of Justice. The crux of the decision appears to be paragraph 33 which includes:

As explained above, the Minister’s order of surrender is a political decision that attracts a high degree of judicial deference. The Extradition Act confers broad discretion on the Minister’s decision to extradite

In other words, the presumption is that, the Supreme Court of Canada will NOT review extradition orders.

It’s as though, the US Canada Extradition Treaty means that:

1. The extradition request from the United States is mechanical (even though none of the conduct occurred within the United States); and

2. The willingness to extradite an individual from Canada to the United States is mechanical.

It appears that individuals who are the subject of an extradition request from Canada to the United States, have fewer legal protections, than do individuals charged with a crime in Canada …

It’s almost as though, the extradition process is designed to circumvent (or at least “water down”), the protections (such as they are), that individuals are afforded if their trials take place in Canada.

Interestingly (and predictably), when extradited to the United States, Mr. Sriskandarajah pleaded guilty, preferring the certainty of a two year period of incarceration, to the maximum which would be sought should he have suggested that he was innocent. The Canada US extradition treaty appears to be a way that the United States can export its version of criminal law into Canada. One wonders whether Canada should even have an extradition treaty with the United States. Conrad Black considers this in a recent article …

On December 14, 2012 (the day the decision was released), Mr. Sriskandarajah was completing his first semester at a Canadian law school. He is now apparently back in Canada and (having completed law school) seeking a license to practise law in Ontario.

Justice McLachlin’s decision was short and joined by the rest of the judges. Of most significance (I think is) …

6. Were the Minister’s Decisions Unreasonable?

[32] The appellants argue that the Minister’s decisions to order their surrender to the United States was unreasonable because he failed to consider all relevant factors bearing on the Cotroni assessment. In particular, they submit, the Minister failed to address (1) the weak American claim of jurisdiction over the appellants’ alleged conduct, and (2) the ability to prosecute in Canada. Accordingly, extradition was an unjustifiable limitation on the appellants’ s. 6(1) rights.

[33] As explained above, the Minister’s order of surrender is a political decision that attracts a high degree of judicial deference. The Extradition Act confers broad discretion on the Minister’s decision to extradite: s. 7 .

[34] In these cases, the record shows that the Minister properly considered and weighed the factors relevant to the situation of the appellants. With respect to the appellants’ first concern, the Minister found that the “negative impact of [their] actions, when considered in concert with the alleged actions of [their] many co-conspirators, would have been felt in jurisdictions outside of Canada”, implicitly including the United States (A.R., vol. I, at pp. 54 and 60). Additionally, it seems clear on the facts alleged here that the conduct described is connected in one way or another with the use of e-mail accounts, companies and bank accounts based within the United States. With respect to the appellants’ second concern, the Minister considered whether prosecution should proceed in Canada and concluded that this factor did not negate extradition.

[35] In concluding that extradition was a justifiable limitation of the appellants’ s. 6(1) right, the Minister provided five reasons which were relevant: the investigation was initiated and developed by American authorities; charges have been laid in the U.S.; the U.S. is ready to proceed to trial; all of the co-accuseds have been charged in the U.S.; and most of the witnesses are located in the U.S. Contrary to the suggestion of the appellants (Sriskandarajah factum, at paras. 78-82), the Minister did not ascribe determinative weight to the fact that the PPSC decided not to lay charges in Canada against them. The Minister conducted an independent Cotroni assessment and concluded that the surrender of the appellants would not unjustifiably violate their s. 6(1) rights, principally on the basis of the fact that the U.S. had taken the lead in investigating and prosecuting the actions of the appellants. The Minister’s conclusion that there were sufficient links to the U.S. to justify extradition flowed from this independent assessment and has not been shown to be unreasonable on the evidence.

[36] The claim that the Minister’s decision was unreasonable must be rejected.

7. Conclusion

[37] The appeals are dismissed and the orders of surrender confirmed.

18 thoughts on “The extradition process – Part 5: As a matter of administrative law, the Supreme Court of Canada seems unlikely to review extradition orders”

  1. The case cited in the post (Sriskandarajah v. United States of America) shows the wind direction in the Supreme Court of Canada when it comes to Charter rights:

    “[21] The appellants have not shown that the considerations on which Cotroni (1989), Kwok (2001) and Lake (2008) were based are no longer valid. If anything, the march of globalization calls for increased international cooperation in law enforcement.”

    This comes despite s. 6(1) in Canada’s Charter reading in its entirety, “Every citizen of Canada has the right to enter, remain in and leave Canada.”

    s. 6(1) says nothing more, and nothing less.

    So when you’re Canada’s Supreme Court, how do you make s. 6(1) say less? Their answer comes in [9] in the case where they just redefine what Canada is: “Although the surrender of a Canadian citizen to a foreign country impairs the individual’s right to remain on Canadian soil, [Charter] s. 6(1) is primarily aimed against exile and banishment, i.e. exclusion from membership in the national community.”

    Ah, yes, to the Supreme Court, Canada isn’t Canada; only “the national community” (which we don’t banish you from when we extradite you from Canada to appease the U.S.) is Canada.

  2. Just out of curiosity and probably of some interest to Karen Alpert and some of the Aussies who hang around these parts I looked up the US Australian extradition treaty and the first I noticed is that it is considerably older than both the US-Canada and US-UK treaties. In fact, it looks like it was last updated in 1990. One thing that stuck out to me is that either party can stop an extradition to the other party simply by pardoning the individual in question.

  4. @Shovel

    I have always thought it is more significant that Canada’s does not seem to want to acknowledge that there are many major countries in the world such as Germany and France which refuse to extradite their own nationals and this a perfect legitimate policy to have(although one that would be unpopular in the US). In fact the prohibitions in Germany and France are both constitutional in nature which I think establishes a strong argument that in fact s. 6(1) could be interpreted to have a Franco/German style prohibition on extraditing Canadian citizens.

    One cavaet to this interpretation is that if you went back in time to 1982 given what Canadian extradition policy was even then I don’t think the Trudeau Sr. government would have supported the s. 6(1) language in the charter if it was to be interpreted in the manner I suggest.

  5. While reading Sriskandarajah v. United States of America, two themes emerged that I describe above as the wind direction in Canada’s Supreme Court (at least in this case):

    1. Look how the case is named. It’s an individual against a state (the state being the U.S.). The court’s consistent tone was that the state wins over the individual.

    2. A major determinant to get the result in 1. above was the court’s handling of statutory law versus constitutional law (Charter). The court’s consistent tone (“If anything, the march of globalization calls for increased international cooperation in [statutory] law enforcement.”) was that statutory law wins over constitution. The bitter irony is that they unwittingly denigrate what the state is (Canada) to get there.

    Just my (biased) impressions.

  6. @Shovel

    Do you anything on how the initial lower court ruled? Was there a full “charter” trial? The Supreme Court of Canada tends to like lower court decisions that have these so called full charter trials? That is for example the basis of Bedford. Second the Supreme Court of Canada also seems to have a thing for preferring to rule on Section 7 grounds instead of other sections of the Charter.

  7. My impression is that if you give a Canadian court the opportunity to rule on section 7 grounds before anything else they will always take the section 7 option and not create any jurisprudence as to other sections of the charter.

  9. I happen to know Monte Silver thinks quite strongly this Ms. Meng should be extradited while John Richardson does not. I would really enjoy a debate between Monte and John on this subject.

  10. @ Tim

    I didn’t see the lower court’s ruling.

    To step more into the weeds on your other question, I don’t recall any mention in the ruling of Charter Section 7. The court did, however, strongly cite Section 7 of the (statutory) Extradition Act, in another instance of them swaying heavily to statute over constitution. The gist was that because Section 7 of the Extradition Act gives all power to the Minister, and because extradition is so political anyway, the court really shouldn’t butt in to politics (implicitly, with pesky details like an individual’s constitutional rights).

  13. Did the Supreme Court in Sriskandarajah v. United States of America say extradition was not political?

    “[11] Third, the Minister’s discretion to extradite or to prosecute in Canada is a necessary condition for the effective enforcement of the criminal law, and it attracts a high degree of deference: Cotroni, at p. 1497; Kwok, at paras. 93-96; Lake, at para. 34. The Minister’s assessment of whether the infringement of a fugitive’s s. 6(1) right is justified under s. 1 involves a determination of whether, based on his superior expertise of Canada’s international obligations and interests, Canada should defer to the interests of the requesting state. This is mostly a political decision. Courts should interfere with the Minister’s discretion only in the “clearest of cases” (Lake, at para. 30).”

    Maybe the court’s words don’t mean what they say?

  15. Well several prominent Canadian law professors say otherwise like Stephanie Carvin of Carleton.

    https://twitter.com/StephanieCarvin/status/1265723006288039936

    And Emmett Macfarlane of UWaterloo

    https://twitter.com/EmmMacfarlane/status/1265731955770916864

    As it see it Canada’s one card to play which will strip away any pretense of this being a judicial decision which is to ban Huawei as Australia has done. One issue with this is doesn’t actually fix the extradition problem. The only thing it does is somehow get China to feel that giving up Meng as an acceptable tradeoff to allowing Huawei to stay in Canada. It is high likely that China finds getting Meng back is far more important than keeping Huawei in Canadian telco network. If Canada bans Huawei AND continues the extradition it will now be in substantially worse position vis a vis China than Australia is(Canada’s main competitor in the Chinese market) and I doubt many tears will be should in Australia for Canada’s predicament. Too many even supposedly pro American Aussies have gotten way too rich from selling stuff to China.

  17. @Tim Smyth

    Imho, the decision is really political whether or not Huawei/G5 is involved. One thing is evident ,no matter who is spinning the yarn, the US started it all and Canada will feel the economic pain whatever the outcome is , either from the US or China,in this case. Always forced to side off with the US in all foreign affairs and internal , it seems more evident by the year that Canada sometime in the future will become another star on the US flag.

  18. For all the talk of the independence of the judiciary the Globe and Mail found it fit to mention the judge is a former Justice Canada lawyer. I feel like the rot in the Canadian civil service goes right up to the Clerk of the Privy Council.

    https://www.theglobeandmail.com/canada/article-what-the-meng-wanzhou-ruling-means-and-how-it-could-have-gone-the/

    The ruling from Associate Chief Justice Holmes, a former prosecutor and criminal-law policy official, communicated the justice system’s “consistency,” said Asad Kiyani, a law professor at the University of Calgary. “You see that Justice Holmes is looking back at the evolution of Canadian extradition, and identifying the broad-based approach.” He said judges do “not insist that the laws of every country are perfectly in concordance and exactly mirror one another,” but look to see “that the spirit of the law, the essence of the law, is the same.”

    Paul Stern, a Toronto lawyer, said the case “obviously could have gone the other way.” The ruling is “careful, clever, but comes down in favour of international co-operation with the United States as opposed to the liberty of the individual concerned.”

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