The US official extradition request is due 60 days after the Dec 1 arrest—before Jan 30. Approving the request and holding a court hearing is at “sole discretion” of Minister of Justice, points our extradition lawyer Gary Botting. https://t.co/38q0MfnnYl
— Tom Parkin (@TomPark1n) January 27, 2019
This is the second of in my series of posts exploring extradition. The first post described the increasing importance of extradition in an increasingly unpredictable world. Individuals are clearly becoming more and more aware of the risks of being forcibly transplanted to face criminal proceedings in another country. The examples discussed demonstrate the risk of extradition to face the justice system in a country where no crime was actually committed. The United States appears to be aggressively interpreting its laws to apply in an extraterritorial manner and is willing to aggressively apply those laws to people who have no presence in the United States. What is most frightening is that extradition treaties allow the United States to get other countries to retrieve those accused and arrange for their transportation to the United States.
Extradition from Canada – An Explanation of the process https://t.co/Fgfdfb84W2
— U.S. Citizen Abroad (@USCitizenAbroad) March 27, 2020
The purpose of this post is to identify and briefly describe the role of the various laws and practices which are engaged in a request for extradition. I will use Canada as the model. Note that Canada allows for extradition to and from a large number of countries. Therefore, let’s begin our analysis with a “Canada Centric” view of extradition.
Treaties and statutes are written in technical language. They take time to understand. Therefore, let’s begin with a simple overview of Canada’s extradition process, which is found Canada’s Department of Justice website.
The description of extradition from Canada’s Department of Justice can be summarized as two categories of information.
Category 1 – What are the legal tools governing extradition?
“Extradition in Canada is conducted in conformity with the Extradition Act (Canada’s general law applying to extradition with all countries), international treaties (Country specific agreements) and the Charter of Rights and Freedoms (applicable to all individuals subjected to the Extradition process). All individuals are afforded fair treatment and due process (this is clearly aspirational).”
Conclusion: The law of extradition is an amalgamation of domestic law, constitutional law and treaties. Interestingly this is analogous to the law of FATCA, which is also a amalgamation of treaties/international agreements and domestic law (The FATCA IGAs were enacted into the Income Tax Act as Canadian domestic law. The purpose of the Alliance For The Defence Of Canadian Sovereignty lawsuit is to seek a ruling that Canada’s Charter of Rights also applies to the FATCA issue.)
Category 2 – How does the extradition process (from beginning to end) unfold in the context of those legal rules?
There are three phases to the extradition process:
1. Authority to Proceed: the decision to commence the proceedings by issuing an Authority to Proceed; this decision is made by Department of Justice officials.
2. Judicial Phase: the extradition hearing, which takes place before a judge of the superior court. Note that the extradition hearing is NOT a hearing on the merits of the case. The extradition hearing is a hearing on whether the requirements of the Extradition Act and the Tax Treaty have been met. More on the requirements to extradite later. The result of the “Judicial Phase” will be a decision on whether the requirements to extradite have or have not been met. If the answer is “no”, then (subject to an appeal) the case would end. If the answer is “yes”, then the decision to extradite will be in the hands of Canada’s Minister Of Justice.
3. Ministerial Phase: the decision on surrender, which under the Extradition Act must be made by the Minister of Justice. This decision cannot be delegated to officials. At the end of the day, the Justice Minister makes the decision. It is entirely possible for the Justice Minister to decline to extradite even if the result of the “Judicial Phase” is the conditions to extradite have been met.
About the possibility of appeal
The individual sought may appeal the decision of the extradition judge and/or apply for judicial review of the Minister’s decision to the Court of Appeal in the province where the extradition hearing took place.
If the Court of Appeal upholds the decisions of the extradition judge and the Minister, the individual may seek leave to appeal either or both decisions to the Supreme Court of Canada. The Supreme Court will only hear appeals that raise issues of public importance.
The third post will discuss the legal prerequisites that are necessary to support an extradition order.
The text of both Canada’s Extradition Act (Appendix A) and the Canada US Extradition treaty (Appendix B) are included below.