Extradition

Yes, an extradition order can be appealed. The accused may also apply for judicial review of the Minister’s decision to the Court of Appeal. If the Court of Appeal upholds the decision, the accused may seek leave to appeal to the Supreme Court of Canada. The extradition process is subject to specific appeal and review procedures under Canadian law.

The Minister of Justice may decline to surrender a person ordered extradited by a judge after an extradition hearing. The Extradition Act sets out both mandatory and discretionary grounds for refusal to surrender.

Under sections 44 and 46 of the Extradition Act, the Minister of Justice must refuse to make a surrender order where:

• 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 extradition is sought is a political offence or an offence of a political character;
• The conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; or
• The conduct in respect of which extradition is sought is a political offence or an offence of a political character.

Under sections 44(2) and 47 of the Extradition Act, the Minister of Justice may refuse to make a surrender order where:

• 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 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 and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act;
• 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.

In order for an extradition to occur, the two jurisdictions must have a pre-existing agreement in place. In Canada, a person generally cannot be extradited unless the alleged conduct also constitutes an offence in Canada. Moreover, a state does not have any obligation to surrender an alleged criminal to another state. If the death penalty may be imposed in the requesting country, this can be an important consideration in the surrender decision.

The extradition process from Canada to another country involves three phases:

1. The issuance of an Authority to Proceed (or ATP) if the requirements for extradition are met. When the ATP is issued, the accused will either be summoned to court or arrested;
2. The Extradition Hearing;
3. If the person is committed for extradition, the Minister of Justice must personally decide whether to order the person’s surrender to the foreign state.

If you are arrested pending extradition, it is possible to obtain bail from the Superior Court of Justice. During the extradition bail hearing, the judge will determine the risk of the accused committing further crimes or fleeing to another jurisdiction before the extradition hearing.

According to the Department of Justice:

There are three key stages to the Canadian extradition process:

• Authority to Proceed: The Minister of Justice must determine whether to authorize the commencement of extradition proceedings in the Canadian courts by issuing an “Authority to Proceed”;
• Judicial Phase: Where an Authority to Proceed has been issued, the Canadian courts must determine whether there is sufficient evidence to justify the person’s committal for extradition; and
• Ministerial Phase: Where the person is committed for extradition, the Minister of Justice must personally decide whether to order the person’s surrender to the foreign state.

If a person is alleged to have committed a crime in another country, extradition laws may require the person to be delivered by Canada to that country so that the person can face the charges in that foreign jurisdiction.

The following countries have extradition treaties or extradition arrangements 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, Uruguay

When extradition occurs, it means that one jurisdiction, that is, a specific country, is seeking to have an alleged criminal handed over to another country so that they can face criminal proceedings in that foreign jurisdiction.