Cecily Zamora
Canada does have extradition laws, and it has an extradition treaty with the United States. This treaty outlines the conditions under which extradition may be granted or refused between the two countries. For example, extradition may be refused if the offense is punishable by death in the requesting state but not in the requested state, or if the person sought is already being prosecuted or has been tried for the same offense in the requested state. The treaty also specifies that extradition shall only be granted if the evidence is sufficient to justify a trial or prove the identity of the accused.
| Characteristics | Values |
|---|---|
| Extradition granted | When evidence is found sufficient to justify a trial for the offense, or to prove the identity of the person |
| Extradition conditions | Persons must be charged or convicted of offenses covered by Article 2 of the Treaty, and the offenses are punishable by imprisonment exceeding one year in both Contracting Parties |
| Extradition refused | When the person sought is already being tried or has been punished in the territory of the requested State for the same offense; when the offense is of a political character; when the requesting State imposes the death penalty and the requested State does not |
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What You'll Learn
What constitutes sufficient evidence for extradition?
Canada's extradition process is a three-stage process divided between the Minister of Justice and the courts. The Minister of Justice determines whether extradition proceedings should be started and how they will end, while the judicial phase involves a judge determining whether there is sufficient evidence to justify committal.
The requesting state is not required to disclose its entire case and has no obligation to disclose potentially exculpatory evidence. Section 33 of the Extradition Act requires only a summary of the evidence available to the prosecution. The requesting state must disclose sufficient admissible and available evidence to permit a properly instructed jury, acting reasonably, to conclude that the person sought engaged in the alleged conduct in the Authority to Proceed.
The judge must determine if the evidence provided by the extradition partner is sufficient to commit the person for trial in Canada if the conduct had occurred in the country. If the individual is sought for the imposition or enforcement of a sentence, the judge must determine if the conviction was in respect of conduct that would be punishable in Canada, including evidence of identification.
The evidence submitted in support of a request for extradition is admitted in extradition proceedings in the requested state if it appears to be under the stamp or seal of a department, ministry, or minister of the requesting state. This evidence may include originals or copies of statements, depositions, or other evidence that has been taken on oath or affirmation. If the requested state considers the evidence submitted in support of the request for extradition to be insufficient, it may request additional evidence and set a time limit for its submission.
Extradition may be refused when the offense for which extradition is requested is punishable by death under the laws of the requesting state, and the laws of the requested state do not provide such punishment for the conduct constituting the offense. Extradition shall also not be granted when the person whose surrender is sought is being proceeded against, has been tried and discharged, or punished in the territory of the requested state for the offense for which extradition is requested.
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Offenses punishable by death
Canada abolished the death penalty in 1998, with the last execution taking place in 1962. However, Canada does have extradition laws, and the country has previously extradited individuals to countries where they may face the death penalty.
Canada's extradition laws are governed by treaties with other countries. These treaties outline the conditions under which extradition may be granted, including the requirement that the offense committed is punishable by a term of imprisonment exceeding one year in both Canada and the requesting state.
Canada has been criticized for extraditing individuals to countries where they may face the death penalty. In the case of United States v. Burns (2001), the Supreme Court of Canada determined that Canada should not extradite individuals to face trial in countries where they may be subject to capital punishment unless Canada receives assurances that the death penalty will not be imposed. This ruling was based on the notion that extraditing individuals to face the death penalty would violate the Canadian Constitution.
According to Amnesty International Canada, the Canadian government did not consistently work to prevent the execution of Canadians from 2007 to 2015. During this period, Canada extradited Charles Ng to the United States, despite his appeals to the authorities, as he did not want to face potential execution.
In summary, while Canada has abolished the death penalty, its extradition laws have allowed for the transfer of individuals to countries where capital punishment is a potential sentence. This has been a controversial issue, with some arguing that it goes against Canada's stance as a country opposed to capital punishment.
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Extradition treaties
Canada has extradition treaties with various countries, including the United States. The specific provisions of an extradition treaty can vary, but they typically cover a range of topics to facilitate the extradition process. For example, Canada's extradition treaty with the United States, outlined the following:
- Extradition shall only be granted if sufficient evidence is presented to justify the individual's committal for trial or to prove their identity as a convicted person in the requesting state.
- The treaty specifies the offenses that are eligible for extradition, generally requiring that the offense is punishable by a term of imprisonment exceeding one year in both contracting countries.
- It addresses the handling of requests when the offense was committed outside the territory of the requesting state, granting the requested state the authority to approve extradition if its laws provide jurisdiction over such offenses.
- The treaty outlines circumstances under which extradition may be refused, such as when the individual has already been tried or punished for the same offense in the requested state or when the offense is of a political nature.
- It also addresses the scenario where the offense is punishable by death in the requesting state but not in the requested state, allowing the requested state to refuse extradition unless sufficient assurances are provided regarding the death penalty.
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Extradition conditions
Canada does have extradition laws, and the country can receive extradition requests from foreign countries in two ways:
- A formal extradition request with supporting documentation
- A request for the provisional arrest of the individual, followed by a formal extradition request
Canada's extradition process involves three phases: the authority to proceed, the judicial phase, and the ministerial phase. Here are the conditions and requirements for each phase:
Authority to Proceed
- The foreign country must submit a formal extradition request and provide supporting documentation or request the provisional arrest of the individual.
- Department of Justice officials decide whether to issue an Authority to Proceed based on the Extradition Act and any applicable extradition treaty.
- The offence involved must be punishable by a jail sentence of two years or more in Canada, although this period can vary under certain treaties.
Judicial Phase
- An extradition hearing is held before a judge of the superior court of the Canadian province or territory where the arrest was made.
- If the individual is sought to stand trial, the judge must determine if the evidence provided is sufficient and if the conduct would be criminal in Canada.
- If the individual is sought for the imposition or enforcement of a sentence, the judge must determine if the conviction is in respect of conduct that would be punishable in Canada, including evidence of identification.
- If the judge is satisfied, they will order the person committed for extradition pending the Minister of Justice's decision.
Ministerial Phase
- The Minister of Justice decides whether to surrender (extradite) the person to the requesting state.
- The Minister's decision cannot be delegated to officials and must be made after an extradition judge has ordered the person committed at the extradition hearing.
- The Minister may order the temporary surrender of an individual to an extradition partner, with conditions, to ensure their presence during prosecution or appeal proceedings.
- If the requesting state's offence is punishable by death, and the requested state does not permit such punishment, extradition may be refused unless sufficient assurances are provided that the death penalty will not be imposed or executed.
- The requesting state must reimburse the requested state for any expenses incurred during the transportation of the extradited person.
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Extradition refusal
Extradition in Canada is conducted in conformity with the Extradition Act, international treaties, and the Charter of Rights and Freedoms. The Extradition Act sets out a series of mandatory and discretionary grounds for refusing to surrender an alleged criminal to a foreign state.
Mandatory grounds for refusal
According to the Extradition Act, the Minister of Justice must refuse surrender when:
- The surrender would be unjust or oppressive in all the circumstances.
- The surrender request was made on the basis of discrimination.
- The consequences of surrender would be contrary to the principles of fundamental justice under s. 7 of the Charter.
- In the case of a Canadian citizen, the surrender would be an unjustifiable infringement of the right to remain in Canada guaranteed by s. 6(1) of the Charter.
Discretionary grounds for refusal
The Minister of Justice has the discretion to refuse extradition even after a judge orders it. This decision is based on factors outlined in the Extradition Act, such as:
- The possibility of an unjust or oppressive outcome.
- Discrimination based on race, religion, nationality, or other factors.
- Whether the offense is considered political.
Additional grounds for refusal
Other circumstances under which extradition may be refused include when:
- The person sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested state for the offense for which extradition is requested.
- The prosecution for the offense has become barred by lapse of time according to the laws of the requesting state.
- The requesting state imposes the death penalty, and the laws of the requested state do not permit such punishment for that offense.
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Frequently asked questions
Yes, Canada has extradition treaties with other countries.
Extradition is the process of one country surrendering an individual to another country, for them to face legal charges or serve a sentence.
Extradition is granted when the requesting state provides sufficient evidence to prove that the individual is accused or convicted of an offence that is punishable by law in both countries.
Yes, extradition can be refused if the offence is punishable by death in the requesting state but not in Canada, unless sufficient assurances are provided that the death penalty will not be imposed. It can also be refused if the individual is already facing legal proceedings or has been tried and punished in Canada for the same offence.
Yes, Canada has an extradition treaty with the United States, which is one of 116 countries that the US has such treaties with.
