Human Rights and Extradition Law

By Linda McKay-Panos

Reposted from LawNow 43(4) with permission.

Recently, extradition has been front and centre in our news cycle (see: CBC, January 22, 2019 “China accuses U.S., Canada of abusing extradition in Huawei case”). There are very important human rights aspects to the process of extradition. These are critical to our democracy and the rule of law. For example, if another nation involved in the extradition seeks to punish or otherwise persuade Canada by imprisoning Canadians, this is not respectful of the rule of law and cannot affect how we perform the extradition process.

Canada has entered into international extradition treaties with many nations across the world. When one nation requests that a person in another nation be turned over to the requesting nation’s law enforcement system, the process to be followed is dictated by the applicable extradition treaty and Canada’s domestic extradition law.

Once the other nation (e.g., the United States) makes a formal extradition request, Canada will usually arrest the person and subject him or her to our extradition process. The process is subject to the Canadian Charter of Rights and Freedoms, as well as international human rights laws and policies.

There are very important human rights aspects to the process of extradition. These are critical to our democracy and the rule of law.In Canada, the Extradition Act, SC 1999, c 18 provides the legal steps that must be taken. The superior court of a particular province deals with the matter (e.g., in Alberta, the Court of Queen’s Bench). A person can be extradited if a formal request is provided from a state with which Canada has a treaty. Further, the following are required under the Extradition Act:

3 (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

This principle is called “dual criminality”; meaning the offence that the subject is accused of is a serious one in both jurisdictions. This requirement can be waived in some circumstances (Extradition Act, s 5). Individuals have the right to appeal to the provincial court of appeal after a negative finding by the lower court.

Canada’s Minister of Justice can refuse to surrender an individual if:

44 (1)

(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or

(b) 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.

(2) The Minister may refuse to make a surrender order if the Minister is satisfied that 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 extradition judge must be satisfied that the evidence provided by the other country is sufficient and reliable. These are the important human rights aspects of extradition.

There are many examples of extradition cases in Canada. For example, in United States of America v Ferras; United States of America v Latty, 2006 SCC 33 (Latty), the U.S. relied on unsworn statements from law enforcement agents. The accused argued that he could be prosecuted on inherently unreliable evidence and that this would violate Charter section 7. All levels of court rejected this constitutional objection and the accused was committed for extradition. The Supreme Court of Canada noted that the principle of comity (deference, mutuality and respect) provided for a presumption that the evidence was reliable, such that a fair hearing would occur.

Because extradition is a reciprocal process, Canada is very careful to follow the procedures in the Extradition Treaty. There may be occasions when we would like a person delivered to Canada to face justice; we would expect to be given the same treatment as we give to other nations. At the same time, because we value the rule of law and human rights, we are very careful to follow procedures when asked to extradite a person.