This article is sponsored by Fasken Ottawa.
The recent arrest and extradition request against a senior executive of Huawei has created some interest in an area of law that has generally flown under the radar. The following hopefully gives some insight on what is involved in extradition proceedings.
The procedure for extradition of an individual from Canada is governed by the Extradition Act. There are three distinct procedural stages. The first involves the decision of the Minister of Justice to issue an Authority to Proceed. This is based on a Record of the Case which is comprised of unsworn statements from law enforcement agents of the requesting state which summarizes the anticipated evidence against the extradition subject. The second is the extradition hearing in which a judge determines if the evidence presented is sufficient to justify committal of the individual. The third stage, assuming the person is committed, goes back to the Minister to decide whether to surrender the named person. The decision to commit is subject to appeal and the decision to surrender is subject to judicial review, which can also be appealed.
Authority to Proceed
A request for extradition emanates from an extradition partner state. If satisfied that the partner state will proceed with a formal request for extradition, the Minister may issue a warrant to arrest the extradition subject. Once arrested, the person is held in custody but may apply for release. Release is determined based on the same principles applied to judicial interim release under the Criminal Code.
On receipt of the request, the Minister must ensure that the alleged conduct would be a crime in Canada. This is the principle of dual criminality which underlies the extradition regime. At that point the Minister may issue an Authority to Proceed which must identify the specific Canadian offence that satisfies the dual criminality requirement. The Act states that the Attorney General (who is also the Minister of Justice) then must apply to the Superior Court of a Province for an order for committal of the subject.
The Act requires that the court determine whether the Record of the Case provides evidence that would justify committal for trial in Canada on the offence set out in the authority to proceed. The test for committal for trial in Canada requires a judge at a preliminary inquiry to commit the accused person if there is some evidence upon which a reasonable jury, properly instructed, could find the accused guilty. The test does not allow for any qualitative assessment of the evidence except to permit the judge to engage in limited weighing of circumstantial evidence.
One difference from a preliminary inquiry, however, is that judges at preliminary inquiries do not have Charter jurisdiction. Extradition judges do. The Supreme Court of Canada has held that an extradition judge has the discretion not to commit where the evidence is “so manifestly unreliable that it would be unsafe to rest a verdict upon it.”
Decision to surrender
If the extradition judge commits the extradition subject, the Minister of Justice has 90 days to decide whether to surrender the extradition subject to the requesting state. The Act allows the subject to make submissions to the Minister and also provides a number of mandatory directions to the Minister for refusing to surrender. The Minister must refuse if the surrender would be unjust or oppressive or if the offences are based on discrimination or are military or political offences. The Act also permits the Minister to refuse to surrender the person where there has been a conviction in absentia without the provision for review or where the conduct in question is the subject of proceedings against the person in Canada.
In addition, the courts have held that the Minister should assess the potential consequences and whether the manner in which the person would be dealt with violates the principles of fundamental justice. The Minister should also seek assurances or make surrender subject to conditions relating to the treatment of the person such as a guarantee that the person will not be subject to the death penalty.
The Minister, however, has an obligation to ensure that Canada complies with its international commitments and should not refuse surrender simply on grounds that the legal system in the requesting country is different from Canada’s. As noted by the Supreme Court of Canada “there is generally speaking nothing unjust in surrendering a person to face the legal consequences of their acts in the place where they were committed.”
Appeals and review
Either party may appeal a decision on committal to the provincial Court of Appeal on grounds similar to those governing appeals against conviction in the Criminal Code. The extradition subject may also apply to the Court of Appeal for judicial review of the Minister’s decision to surrender. Usually the appeal and the judicial review application are heard together. The standard of review to be applied by the Court of Appeal on the judicial review application is reasonableness. Courts have held that special deference is owed to the Minister’s decision to surrender, which is largely political given the Minister’s “particular expertise” in the area.
Patrick McCann is White Collar Defence and Investigations Counsel with the Fasken Ottawa office, representing clients in all trial and appellate courts in Ontario, and the Supreme Court of Canada. Previously, Patrick practised at the forefront of Canadian criminal law for over 40 years. He can be reached at firstname.lastname@example.org