Introduction

Generally, extradition is the surrender by one country to another of a person charged with, or convicted of a crime in the requesting country. Canada’s Extradition Act, and a series of treaties to which it is a party, contemplate extradition both to and from Canada.

Prior to the significant revisions to the Extradition Act in 1999, our extradition regime – particularly as it related to requests from other countries for the surrender of individuals in Canada – was widely criticized (rightly or wrongly) for being overly complicated, burdened by undue delays and unnecessary evidentiary requirements imposed on requesting countries. With the passage of the Extradition Act S.C. 1999, c. 18, such criticisms have been replaced by expressed concerns (again, rightly or wrongly) that the current regime sacrifices procedural and substantive fairness at the altar of international comity and expediency.

Rather than “weigh in” on these divergent views, I prefer to acquaint the reader with a basic understanding of the current regime, and some of the tactical decisions that remain important for counsel whose clients face extradition. Given that the vast majority of extradition work done by Canadian counsel and judges relates to extradition requests by other countries for extradition from Canada, this paper places its focus there.

Who May Request Extradition

A person may be extradited from Canada in accordance with the Extradition Act and a relevant extradition agreement on the request of an extradition partner (s. 3(1)).  An extradition partner is either a state or entity that is a party to an extradition treaty with Canada, a state or entity that enters into a specific agreement (which can be a “one-off”) that provides for extradition or a Commonwealth state or entity that is listed in the Schedule to the Act. (There is no longer separate legislation that deals with rendition to and from Commonwealth states or entities.) An extradition partner now may include an international criminal court or tribunal. (s. 2 “extradition agreement”, “extradition partner”, “specific agreement”, “State or entity” defined; s. 9, s. 10, Schedule to the Act)

For What Purpose and in Relation to What Conduct

A person may be extradited from Canada for the purpose of prosecuting or sentencing him/her, or enforcing a sentence previously imposed if:

1. Subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by a maximum term of two years imprisonment or more or by a more severe punishment; and
2. The conduct of the person, had it occurred in Canada, would have constituted an offence punishable in Canada by imprisonment for a maximum term of two years imprisonment or by a more severe punishment, subject again to a relevant extradition agreement. (This is elevated to a maximum term of five years imprisonment or more severe punishment if the request is based, instead, on a specific agreement, rather than an extradition treaty.) (s. 3(1))[1]

The “double criminality” rule that governs extradition from Canada is conduct based, rather than offence based. It is irrelevant whether the conduct that gives rise to the extradition request is named, defined or characterized by the extradition partner in the same way as it is in Canada. The rule is illustrated in Canada (Justice) v. Fischbacher,  [2009] 3 S.C.R. 170.  Fischbacher was indicted in Arizona on a charge of first degree murder. The United States requested his extradition from Canada. Canada’s Minister of Justice authorized the request, identifying the corresponding Canadian offence in the authority to proceed as “murder, contrary to s. 231 of the Criminal Code” without particularizing the crime as first or second degree murder.  At a committal hearing, the extradition judge committed Fischbacher for the offence of second degree murder, finding no evidence of planning and deliberation to justify a committal for first degree murder under Canadian law.  No appeal was taken from the committal order.  The Minister subsequently ordered Fischbacher’s surrender to face trial for first degree murder in the United States.  The Minister’s decision was judicially reviewed. The Court of Appeal held that the principle of double criminality was met but held that it was unreasonable to order Fischbacher’s surrender for first degree murder, absent evidence of premeditation. The matter was remitted to the Minister for reconsideration. On appeal to the Supreme Court of Canada, the Minister’s surrender order was restored. The Court said this:

1.  The principle of double criminality codified in s. 3 of the Extradition Act has a foreign component and a domestic component. The foreign component requires that the offence upon which extradition is requested be criminal in the requesting state and carry the specified penalty. The domestic aspect requires that the conduct underlying the foreign offence amount to a criminal offence under Canadian law with the specified penalty.  Canada has adopted a conduct‑based approach to determining double criminality. It is unnecessary that the Canadian offence described in the authority to proceed or the committal order “match” the foreign offence for which the person is sought or surrendered in name or in terms of its constituent elements.
2. The Minister, by authorizing extradition proceedings, establishes that the foreign component is satisfied. The extradition hearing is to determine whether the domestic component is satisfied. The extradition judge’s role is to determine whether the evidence at the committal hearing shows conduct that would justify committal for trial in Canada for the crime listed in the authority to proceed, if the crime had occurred in Canada. The judge’s role does not include any review of the foreign law.  If the extradition judge concludes that the impugned conduct would amount to a criminal offence in Canadian law, the person sought must be committed for extradition.
3. After committal, the Minister reviews the case to decide whether it is politically appropriate and not fundamentally unjust to surrender the person sought. (The considerations that inform the Minister’s decision are addressed later in this paper.) If the Minister decides to surrender the person sought, his order must specify the offence or conduct for which the person is surrendered, but nothing in that section requires that the Minister match or “align” the surrender offence with that listed in the authority to proceed or the committal order, or with the evidence adduced at the hearing.
4. The so-called “misalignment” test adopted by the Court of Appeal is incompatible with key components of extradition law. It would require the Minister to add an offence-based test for double criminality at the final stage of the extradition process and amount to second-guessing the foreign state’s assessment of its own law and offend international comity. The “misalignment” test is also inconsistent with the statutory role of the extradition judge who is only to consider the domestic component of double criminality.
5. Accordingly, the Minister’s failure to apply a misalignment test cannot provide a basis for interfering with his/her surrender decision. That being said, the Minister has a broad discretion. The difference between the jeopardy faced by the person sought in the foreign country and that which he/she would face in Canada in respect of the impugned conduct may be a relevant factor in the surrender decision in exceptional circumstances.

A number of the concepts described in Fischbacher will be more fully described below.

Authority to Proceed

The Minister of Justice, after receiving a request for extradition and being satisfied that the statutory conditions are met in respect of at least one offence mentioned in the request, may issue an authority to proceed. It authorizes the Attorney General of Canada, on behalf of the extradition partner, to seek an order of a court for extradition of the person involved (s. 15). The requisite content of the authority to proceed is set out in s. 15(3) of the Act. It includes the offence or offences in Canada that correspond to the person’s alleged conduct or the conduct respecting which the person was convicted. Provision also exists for amending the authority to proceed to conform to the evidence heard at a hearing or substituting a new authority to proceed before the hearing (s. 23).

Summons, Arrest and Bail

After the Minister of Justice issues an authority to proceed, the Attorney General may apply ex parte to a judge for the issuance of a summons or for an arrest warrant. The judge shall issue a summons or an arrest warrant in accordance with s. 507(4) with any modifications that the circumstances require. Such a summons may be served, and such an arrest warrant may be executed anywhere in Canada without being endorsed. (s. 16(1)(3)(4)). Provision also exists for the Attorney General to seek a provisional arrest warrant even prior to an anticipated request for extradition. The Act creates certain safeguards to address potential delay in the extradition request or issuance of an authority to proceed. (ss. 12-14)

Part XVI of the Criminal Code applies, with any modifications that the circumstances require, in respect of a person arrested or summonsed (s. 19). Bail hearings are conducted by a “judge” (s. 18), defined by s. 2 of the Act. By way of illustration only, in Ontario and Quebec, such bail hearings may only be conducted by the Superior Court. The Act also superimposes a reverse onus (that is, the person must show cause) if the person has been arrested on the request of the International Criminal Court (s. 18(1)(a)).[2]

There is no uniformity of practice across Canada concerning judicial review of a judge’s decision at the bail hearing. Subsection 18(2) of the Act specifically provides for a review of a decision respecting judicial interim release by a judge of the court of appeal. This might prompt the view that a person’s only recourse for review is to the court of appeal. However, the applicability of Part XVI of the Code, with appropriate modifications, also invites consideration of whether some of its provisions have application. Judicial views range from (1) a person’s only recourse is to the court of appeal; (2) a person can seek review both in the court of appeal and in the Superior Court; (3) alleged errors of law should be pursued in the court of appeal; reviews based on changed circumstances (rather than alleged errors of law) are appropriately heard in the Superior Court (See, the most recent decision in this regard: United States of America v. Ugoh, [2011] O.J. No. 1383. In U.S.A. v. Yadwinder Dhillon Jan. 20, 2006 (Ont. Sup. Ct.) Hill J. concluded that the 90-day bail review is not capable of modification to the extradition context. Accordingly, no such review is available.

The Hearing: Test for Committal and Admissibility

The judge shall, on receipt of an authority to proceed, hold an extradition hearing. For the purposes of the hearing, the judge has both the powers of a justice under Part XVIII of the Code (that is, a judge conducting a preliminary inquiry), and in relation to the Charter, the same competence that the judge possesses by virtue of being a superior court judge (s. 24 and 25).

Under s. 29(1) of the Act, the judge shall order the committal of the person into custody to await surrender if:

1. In relation to a person sought for prosecution, there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought;
2. In relation to a person sought for imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

Subject to a relevant extradition agreement, if the person was tried and convicted in absentia, the judge shall proceed under s. 29(1)(a). (s. 29(5))

Of course, the test for committal under s. 29(1)(a) includes that which governs a preliminary inquiry. Accordingly, a judge must determine whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty on the offence(s) set out in the authority to proceed.The judge must also be satisfied that the person is the person sought. This, too, represents a low threshold, particularly given s. 37 of the Act which reflects that the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner is evidence that he or she is the person sought. The fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person also constitutes such evidence.

Perhaps the most significant change to pre-existing extradition law came with the 1999 amendments that govern admissibility at the extradition hearing. Of course, evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at the extradition hearing. Indeed, evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. (s. 32(1) and (2)) However, the following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

1. The contents of the documents contained in the record of the case certified under s. 33(3); (the “record of the case” method);
2. The contents of the documents that are submitted in conformity with the terms of an extradition agreement; (the “treaty” method) and
3. Evidence adduced by the person sought for extradition that is relevant to the tests for committal if the judge considers it reliable. (s. 32(1)).

It is s. 32(1)(a) that is particularly significant when coupled with s. 33 of the Act. Where a person is sought for the purpose of prosecution, the record of the case must include a document summarizing the evidence available to the extradition partner for use in the prosecution. It may also contain other relevant documents. The record of the case may not be admitted unless a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or otherwise contained in the record of the case is available for trial, and is sufficient under the law of the extradition partner to justify prosecution or was gathered according to the law of the extradition partner. (s. 33(3)) The documents need not be authenticated unless a relevant extradition agreement provides otherwise (s. 33(4)) A document is also admissible whether it is solemnly affirmed or under oath (s. 34). The limitations placed upon the person resisting extradition are obvious when the requesting state can simply file a purported summary of the evidence, together with the prosecutor’s opinion[3]that the evidence is available and sufficient under the law of the extradition partner to justify prosecution.

In United States of America  v.  Anekwu, [2009] 3 S.C.R. 3, the United States sought extradition based on a summary in the record of the case describing evidence gathered both in the United States and in Canada. The Canadian evidence included corporate records, mailbox records, bank records, police surveillance and an immigration photograph of Anekwu.  The records themselves were not filed, but their contents were described in the summary.  The extradition judge rejected objections to the admissibility of the Canadian‑gathered evidence contained in the record of the case on the basis that it was hearsay, finding that the summary satisfied Canadian rules of evidence. She also rejected Anekwu’s argument that the requesting state should bear the onus of proving that the Canadian‑gathered evidence was justifiably before the court and his further submission that the evidence had been obtained in violation of the Charter.

The extradition judge issued a committal order and the Minister issued a surrender order. In a majority judgment, the Court of Appeal held that the Canadian-gathered evidence must comply with the hearsay rule, as traditionally applied in domestic proceedings.  The summary of the Canadian‑gathered evidence contained in the record of the case constituted inadmissible hearsay.  The dissenting judge held that ss. 32(2) and 33(1), read together, contemplated a modified approach to hearsay in extradition proceedings. The Supreme Court of Canada agreed with the dissenting opinion, restoring the committal and surrender orders. Parliament did not limit the type of evidence that could be summarized in a record of the case to foreign-gathered evidence. The Extradition Act requires a two‑step approach with respect to Canadian‑gathered evidence.  The evidence may be presented in summary form under s. 33(1) and is presumptively admissible under s. 32(1).  Subsection 32(2) then requires the court to scrutinize the Canadian‑gathered evidence for compliance with Canadian rules of evidence, which include the Charter.  The evidence may then be relied on by the extradition judge if, in substance, it would be admissible in a Canadian court.[4]  In extradition proceedings, unmodified adherence to the strictures of the conventional hearsay rule would result in expensive, time‑consuming hearings that would prevent compliance with Canada’s international obligations. A “flexible approach” that does not insist that evidence take a particular form, but still ensures that the person sought may challenge the admissibility of evidence under the Charter, or its content according to Canadian evidentiary rules, is more consistent with the purpose of an extradition hearing.  Since compliance with Canadian law is mandatory for evidence gathered in Canada, the record of the case should contain sufficient information to enable the person sought and the extradition judge to ascertain which items of evidence have been gathered in Canada. In relation to those items, the record should also provide some information on how they were obtained.  However, the onus of providing a Charter breach continues to be placed on the person alleging it.

Extradition proceedings are not concerned with guilt or innocence. Accordingly, the extradition judge’s jurisdiction to grant Charter remedies is limited to “breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process.”  (United States of America v. Kwok, [2001] 1 S.C.R. 532). Thus, an extradition judge may entertain an application under s. 24 of the Charter to exclude evidence gathered in Canada in violation of the Charter. The evidence to support such an application may be found in the materials filed by the requesting state. The applicant may also present his/her own evidence. As in any Charterapplication, the requisite evidentiary basis may then be found in the evidence filed by the requesting state, or the applicant may present his/her own evidence.  As well, if the Charter application has an “air of reality”, the extradition judge may order the production of relevant materials or, in exceptional circumstances, compel the attendance of a witness for examination of cross-examination. In considering whether to exercise its discretion, the court must remember that, unlike the preliminary inquiry, there is no general right to cross‑examine witnesses in the extradition context.

Pursuant to s. 24(2) of the Charter, evidence may be excluded at an extradition hearing for reasons of fairness. For example, in United States of America v. Cobb, [2001] 1 S.C.R. 587, where an American prosecutor had made public comments subjecting the persons sought to threats and intimidation, the persons sought could not have a fair extradition hearing. It was possible that they were intimidated and encouraged by the American prosecutor’s actions to not pursue their legal rights as vigorously as they were entitled to.[5]  Similarly, evidence may be excluded under s. 24(2) if evidence was gathered by the foreign authorities in such an abusive manner that its admission to the committal hearing would be unfair under s. 7 of the Charter (United States of America v. Shulman, [2001] 1 S.C.R. 616;  United States of America v. Ferras, [2006] 2 S.C.R. 77)

In the context of a preliminary inquiry, R. v. Arcuri, [2001] 2 S.C.R. 828  tells us that where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence exculpatory evidence. However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. Since s. 32(1)(c) of the Extradition Act contemplates the potential introduction of reliable[6] evidence by the person sought for extradition if relevant to committal, that person can ask the extradition judge to engage in a limited weighing of the whole of the evidence (including any evidence adduced on his or her behalf) in determining whether to commit. Of course, the judge cannot choose between competing inferences available on the evidence.

In United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, extradition proceedings were brought by the “record of the case” method under ss. 32(1)(a) and 33 of the Extradition Act. The appellants submitted that the record of the case method cannot survive Charter scrutiny because it allows for the possibility that a person might be extradited on inherently unreliable evidence. The existing jurisprudence (most particularly United States of America v. Shephard, [1977] 2 S.C.R. 1067) precluded consideration of the manifest unreliability of the evidence tendered in support of extradition. The Court revisited Shephard, concluding that the relevant provisions of the Extradition Act do not violate s. 7 of the Charter because the requirements for committal set out in s. 29(1), properly construed, grant the extradition judge discretion to refuse to extradite on insufficient evidence such as where the reliability of the evidence certified is successfully impeached[7] or where there is no evidence, by certification or otherwise, that the evidence is available for trial.[8]

The unavailability for trial of the evidence relied upon to support extradition directly arose in the companion Ortega appeal (United Mexican States v. Ortega; United States of America v. Fiessel, [2006] 2 S.C.R. 120.) Ortega was ordered extradited under the “treaty method” provided for in s. 32(1)(b) of the Act. The particular treaty in Ortega, unlike the record of the case method, did not require that the foreign state (Mexico) certify that the evidence is available for trial. The Court concluded that the extradition judge cannot properly commit a person for extradition under s. 29(1) unless a prima facie case has been made out that evidence exists upon which the person may be tried.  Where the requesting state does not certify or otherwise make out a prima faciecase that the evidence exists and is available for trial, the case for committal is incomplete and should be dismissed.

Where actual first-hand documents or affidavits are placed before an extradition judge, the evidence’s existence is self-evident and its availability for trial will be presumed.  The same presumption applies if the foreign state certifies availability. However, the person may cogently challenge this presumption, for example, where the witness has recanted prior to the extradition hearing, or where the requesting state makes only a bare assertion that the evidence exists without providing any description whatsoever of its content or form.  To be clear, the extradition judge is not required to predict the future state of the evidence: the focus is on its availability at the time of the extradition hearing.

Extradition for the Imposition or Enforcement of Sentence

In the case of a person sought for the imposition or enforcement of a sentence, the record of the case must include a copy of the document that records his/her conviction and a document describing the conduct for which the person was convicted. This record of the case may not be admitted unless a judicial, prosecuting or correctional authority certifies that the documents in the record of the case are accurate (s. 33(1)(b) and s. 33(3)(b)).

The Minister’s Decision

Where the judge commits the person to await surrender, the judge must inform the person that he or she will not be surrendered until after 30 days has expired and that the person has a right to appeal and to apply for judicial interim release (s. 38(2))

The Minister may, within 90 days after committal, personally order that the person be surrendered. Before making such an order respecting a refugee claimant, the Minister shall consult with the Minister responsible for the Immigration and Refugee Protection Act. The Minister may also seek assurances from the extradition partner or subject the surrender to conditions, including, most commonly, a condition that the person not be proceeded against in respect of any offence or conduct other than that referred to in the order of surrender. If the Minister subjects the surrender to assurances or conditions, the order of surrender shall not be executed until the Minister is satisfied that the assurances have been given or the conditions agreed to by the extradition partner (s. 40(1) to (4)).

The Minister shall refuse to make a surrender order if satisfied that:

• The surrender would be unjust or oppressive (s. 44(1)(a)). This requires the Minister to consider, inter alia, whether surrender would violate a person’s rights under s. 7 of the Charter. The applicable test is whether ordering extradition would “shock the conscience” or whether the fugitive faces “a situation that is simply unacceptable”. The courts are to show deference to the Minister’s assessment (Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761) Personal circumstances to be considered include “youth, insanity, mental retardation and pregnancy;” (United States v. Burns, [2001] 1 S.C.R. 283)[9]

Extradition constitutes a prima facie infringement of a Canadian citizen’s mobility rights under s. 6(1) of the Charter. However, that infringement can be justified under s. 1. That being said, in exercising his/her discretion, the Minister has “an obligation flowing from s. 6(1) to assure [himself/herself] that prosecution in Canada is not a realistic option”: United States of America v. Cotroni, [1989] 1 S.C.R. 1469. The Court rejected the argument that extraditing a Canadian citizen to face charges on which he can be prosecuted in Canada is irrational. It may be easier to prosecute a Canadian citizen in a foreign jurisdiction owing to the availability of witnesses or evidence. In addition, the foreign jurisdiction may have a greater interest in prosecuting the offence. In concluding that the right was minimally impaired by the extradition process, La Forest J., speaking for the majority, noted that “extradition practices have been tailored as much as possible for the protection of the liberty of the individual.” He listed the considerations, now known as the “Cotroni factors”, that will generally be considered in determining whether to prosecute in this country or to allow authorities in a foreign jurisdiction to seek extradition.[10]

• the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race or other enumerated bases, or that the person’s position may be prejudiced for any of those reasons. Note that the possibility of prejudice based on the enumerated bases does not require proof that the request for extradition is motivated by prejudice; (s. 44(1)(b))[11]
• the prosecution of the person is barred by prescription or limitation under the law applicable to the extradition partner; (s. 46(1)(a))
• the conduct is a military offence that is not also an offence under criminal law (s. 46(1)(b)); or
• the conduct is a political offence or an offence of a political character. (s. 46(1)(c))

The Minister may refuse to make a surrender order if satisfied that: