Canada has the power to extradite people at the request of other countries to face trial there. Someone can be extradited if the alleged crime is considered criminal conduct by both Canada and the other country, and if the offence they are being accused of would result in a prison sentence of at least two years. Canada will only extradite people if the requesting country is an “extradition partner”. This means that Canada has an extradition agreement or treaty with these countries for this purpose. The main issue to consider is when and how extradition occurs.

What is Extradition?

Extradition is a legal term that describes sending someone back to a country where they have been accused of a crime if that country is requesting their return. For example, if someone commits a crime in Australia, and moves to Canada, the Australian government can request that Canada send the person back so that they can stand trial and potentially face consequences for their actions.

For extradition from Canada, the requesting state has to have an extradition treaty or agreement with Canada. The role of extradition treaties in the international community is to promote justice by allowing countries to work together to capture alleged criminals. Someone could be extradited if they’re facing criminal charges in another country or if they have fled a country to avoid conviction.

How Does Extradition Work in Canada?

Extraditions in Canada typically follow a 4-step system:

Step 1: Extradition Request

For Canada to extradite someone, the requesting country had to be an “extradition partner”. To become an “extradition partner” with Canada, a country has to file a request to Canada’s Department of Justice, and a partnership has to be created.

Step 2: Authority to Proceed

The Department of Justice Canada decides on whether or not to issue an Authority to Proceed. The Authority to Proceed allows for an extradition hearing to take place before a court to decide whether someone should be extradited. At this stage, there may be a provincial arrest, if the case is urgent, though it does not always happen.

Step 3: Extradition Hearing

This is the judicial step where the extradition hearing will take place in a Canadian court. This is not a trial. A trial would happen in the country asking for the person to the extradited. In this hearing, the judge has to decide if the evidence supports a finding that the alleged illegal behaviour would be criminal if it was conducted in Canada.

The court will consider whether the person would face a fair trial in the requesting country.
If the person is committed to extradition, which means the judge thinks there is enough evidence to show criminal conduct, they are allowed to appeal the decision to the Court of Appeal or the Supreme Court of Canada. They are also allowed to apply for judicial review in the Court of Appeal.

Step 4: Ministerial Decision

At this stage, the Minister of Justice decides if the person should or should be sent to the requesting country. If an Order of Surrender, which is a document issued by a court authorizing the surrender of a person to another country, is granted then the person will be sent to the country requesting extradition. These decisions may be appealed to the Court of Appeal or the Supreme Court of Canada. They are also allowed to apply for judicial review in the Court of Appeal.

There are various factors the Minister of Justice will take into consideration when deciding to extradite someone. Aside from the legal aspects, like the evidence and alleged illegal conduct, they will also look to humanitarian concerns. Canada may refuse extradition on humanitarian grounds if surrendering that person to the requesting country could have severe consequences for them, especially based on their age or state of health.

Grounds to Challenge Extradition

Facing extradition can seem like an insurmountable battle. However, some grounds may apply to your situation. With the help of a skilled and experienced criminal defence lawyer, you may be able to protect yourself from extradition.

Insufficient Evidence

The country that is requesting that you be extradited to face criminal charges has the responsibility of presenting a prima facie case or in other words an apparent case. This means that they have to present evidence to the Canadian government for the case to be considered. If there is insufficient evidence, you could be protected from extradition.

Human Rights Violations

Depending on which country is requesting extradition, you may be able to defend yourself by claiming potential human rights violations. If, by being extradited, there is a risk you might face torture, inhumane treatment, or an unfair trial, you may be protected from extradition.

Political Offenses

Canada will typically not allow extradition for political offences, or for crimes that are under military law and not under regular criminal law in both countries.

Charter Rights Violations

The Charter still applies in extradition cases. The person facing extradition still has rights, such as the right to a fair trial, the right to obtain legal advice, and the right to be free from arbitrary search and seizure, among others. Specifically, section 7 of the Charter outlines the principles of fundamental justice. If extraditing someone to a country will put them at risk of suffering inhumane treatment, which goes against these section 7 principles, they may not be extradited.

Countries Canada Has Extradition Treaties With

There are many countries Canada has extradition treaties with:

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, South 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, United Kingdom, Uruguay

Canada has strong and long-standing extradition relationships with the United States and the United Kingdom, in particular.

Can You Be Extradited Without a Treaty?

Some countries do not have an extradition treaty with Canada (Russia, Iran, and others). Extradition without a treaty is still possible, in some ways. For instance, there could be ad hoc arrangements, which are diplomatic agreements that are made between countries for specific cases.

What Happens If You Are Extradited?

In the ministerial phase, the Minister will decide if you should be surrendered to the requesting state or not or not, based on the order the judge makes at the extradition hearing. The Minister will look to all grounds for refusal and factors of the case before making a decision. They will even look at submissions made by the person who is being extradited. Should they decide to surrender you, you must be extradited to the requesting country within 45 days, unless there’s a delay in this time because of appeal/judicial review.

Once you are in the requesting country you could face arrest, trial, fines, and imprisonment, along with other penalties the requesting state utilizes in their justice system.

Conclusion

Facing extradition can be a terrifying ordeal. It is a complex and draining experience, that can have serious consequences, like imprisonment in a foreign country. It is based on a variety of factors, such as relationships between states, reasons for seeking extradition, and grounds for refusing extradition.

If you are facing extradition, you must seek legal advice to understand what steps can be taken to protect you. Contact Strategic Criminal Defence to make sure your rights are protected and to explore possible legal strategies that can be used to help you.