Extradition Lawyers Toronto

Extradition is a form of international assistance where Canada surrenders a person located within its borders to another country to face trial or serve a sentence. It is a process based on the principle that people should be answerable to the criminal laws of the country where they allegedly committed a crime, wherever they are located.

The Canadian Government may also extradite a person to the International Criminal Court to prosecute them for war crimes.

Canada will only extradite a person from Canada to an established “Extradition Partner”. A country becomes an Extradition Partner in one of three ways: it has an existing extradition agreement or treaty with Canada; it is named in the schedule to the Extradition Act (as the United Kingdom, Australia, New Zealand, Jamaica, Japan, Singapore, South Africa and the International Criminal Court are); or Canada enters into a specific agreement with it for a particular case.

Canada will only extradite a person if 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, and the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada by imprisonment for a maximum term of two years or more. Where the request is based on a case-specific agreement rather than a treaty, the Canadian offence must carry a maximum of five years or more. A treaty can vary these thresholds.

In this way, extradition law seeks to allow the surrender of an individual to criminal prosecution by another country for only the most serious crimes.

Where a person is being extradited to complete a sentence that is yet to be served, subject to a relevant extradition agreement, the extradition of a person who has been sentenced to imprisonment or another deprivation of liberty may only be granted if at least six months of the term remains to be carried out.

Some countries only allow the extradition of foreigners. However, Canada is not one of these countries. Therefore, even Canadian citizens can be surrendered to an Extradition Partner.

The Supreme Court of Canada has held that extraditing a citizen limits the right to remain in Canada under section 6(1) of the Charter, but that the limit is justified. The decision whether to prosecute a citizen here or allow extradition must give that right due weight.

Albania, Argentina, Austria, Belgium, Bolivia, Chile, Colombia, Cuba, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Finland, France, Germany, Greece, Guatemala, Haiti, Hungary, Iceland, India, Israel, Italy, 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 and Uruguay are all countries with extradition treaties with Canada.

Canada suspended its extradition treaty with Hong Kong in July 2020. Many other countries are extradition partners without a bilateral treaty: the Commonwealth and other states named in the schedule to the Extradition Act, including the United Kingdom, Australia, New Zealand, Jamaica, Japan and Singapore, and countries party to multilateral conventions with Canada. Treaties change, so the current position for a particular country should always be checked.

The extradition process from Canada is a three-step process. The current Extradition Act divides functional responsibilities between the Minister of Justice and the Courts into three distinct phases.

First, after receiving an extradition request from an extradition partner, the Minister decides whether to issue an Authority to Proceed (“ATP”).

The ATP document acts much like an indictment in a domestic trial. It officially sets out the Canadian offences that correspond to the conduct the other country is investigating, providing the necessary focus for all subsequent legal steps.

Second, if an ATP is issued, an extradition judge holds an extradition hearing to decide whether to commit the person sought for extradition. Third, if the person sought is committed for extradition, the Minister decides whether to surrender the person sought to the extradition partner. The person sought is entitled to make submissions to the Minister in respect of that decision.

Step one: initiating an extradition request

The first step towards extradition begins with a request from an extradition partner — a country with which Canada has a treaty or specific agreement, or which is named in the Extradition Act — to the Minister of Justice alleging that the person sought for extradition is wanted for the purpose of prosecution or sentencing.

The requesting country must establish that the offence for which the person is sought would have been a crime if committed in Canada (“dual criminality”) and which could have been punishable by two or more years of incarceration.

The principle of dual criminality ensures that Canada will not surrender someone for conduct that would not be considered a crime if it had occurred here.

Where the request is based on a case-specific agreement rather than a treaty, the threshold is five years of incarceration had the alleged crime been committed in Canada.

A foreign arrest warrant is not valid on Canadian soil. An individual can only be arrested under a warrant issued specifically under Canada’s own Extradition Act.

There are two paths to arrest: a provisional request for urgent cases where full documentation isn’t ready, and a straight arrest request when the foreign country has provided a complete package of evidence.

Regardless of how it starts, the case will eventually move toward a formal hearing.

If the Minister of Justice is satisfied that the requirements for extradition have been met, the Minister will issue an “Authority to Proceed” (ATP).

Once the ATP has been issued, the Attorney General of Canada applies to a judge to have the individual either arrested or summoned to court. A person already provisionally arrested does not need to be arrested again.

Step two: the extradition hearing

At the extradition hearing, the judge must be satisfied that the person before the court is in fact the person identified by the requesting state for extradition.

The judge must also be satisfied with respect to the issue of “dual criminality”. Dual criminality requires that the offence alleged to have been committed in the requesting country would also be a criminal offence had it been committed in Canada. Despite this requirement, it is not necessary that the offence have the same name in both jurisdictions.

Once these requirements have been met, the judge will review a collection of documents assembled by the requesting state called the “Record of the Case” (ROC). The ROC summarizes the evidence available to the extradition partner for use in the hearing.

After reviewing the ROC and any other admissible evidence, the judge will consider whether the evidence establishes a prima facie case that the extradition crime has been committed.

If there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed could convict, the test for committal will have been met and the judge would be required to order the person committed for extradition for the offences sought. The judge may weigh the evidence to a limited degree, and must refuse committal if it is so defective or appears so unreliable that it would be dangerous or unsafe to convict. Short of that, it does not matter whether the case against the person sought is “weak” or whether the prospect for conviction “unlikely”. The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction not for the Canadian extradition judge to decide.

Step three: the Minister’s surrender decision, appeals and judicial review

If a judge decides there is enough evidence to extradite you, you are “committed to await surrender,” but that is not the end of the road. You have a statutory right to appeal the committal order to the Court of Appeal.

Furthermore, you can seek a judicial review of the Minister’s decision to surrender you. These two legal challenges are often heard together by a panel of judges to ensure a comprehensive and efficient review of your case.

Once a person sought for extradition has been committed by a judge, they have 30 days to file a notice of appeal with the Court of Appeal, and 30 days to make written submissions to the Minister of Justice about surrender. At this stage of the case, the person to be extradited may also seek to be released on bail (in the event the person had previously been ordered detained pending the extradition hearing).

Strictly, the choice is not the Minister’s. After the ATP is issued, the Attorney General of Canada applies to a judge, who issues a summons unless there are reasonable grounds to believe that an arrest warrant is necessary in the public interest. The following factors are commonly relied on to support an arrest on an extradition request:

• a basis to believe that the person may flee the jurisdiction or fail to appear in court if no arrest is made;
• previous flight from another jurisdiction;
• attempts by the person to keep their presence in Canada or abroad secret, or the possibility that the person will compromise or otherwise adversely affect the proceedings or the investigation abroad, for example, by intimidating or harming witnesses or destroying physical evidence;
• the person’s involvement in crimes in Canada;
• the possibility that the person will carry out criminal offences in Canada;
• the existence of accomplices abroad or in Canada;
• the existence of passports, or assets in another jurisdiction; and
• any other factor suggesting that arrest would be in the public interest.

An arrested person must be brought before a judge or a justice within 24 hours, or as soon as possible if none is available.

An extradition bail hearing takes place in the Superior Court of Justice and generally follows the same procedures as bail hearings for criminal charges: the bail provisions of the Criminal Code apply, with any necessary modifications.

Once arrested, the person may be released on bail or other conditions, or may be held in custody pending the extradition hearing.

At the extradition bail hearing, a judge will consider whether the accused person is a risk to commit further offences in Canada if released and whether they present a risk to flee the jurisdiction.

Extradition bail hearings in Toronto require the person seeking bail and those acting as supervisors (sureties) on the bail to file paperwork with the court outlining information about themselves and detailing the plan of release and supervision. Read our article on obtaining bail for more specific information on the bail process.

Judges often examine the risk of flight much more cautiously because Canada’s international honour and treaty commitments are at stake. To secure release, you often need a very robust release plan involving trustworthy sureties and significant financial pledges.

A bail decision can be reviewed by a judge of the Court of Appeal. Release can also be sought again after committal, while an appeal, the Minister’s decision or a judicial review is pending.

The Minister may or may not surrender a person ordered committed by the judge after an extradition hearing.

The Minister must refuse to surrender a person where:

• Surrender would be unjust or oppressive having regard to all the relevant circumstances;
• 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;
• The prosecution is barred by prescription or limitation under the law of the extradition partner;
• The conduct is a military offence that is not also an offence under criminal law; or
• The conduct in respect of which extradition is sought is a political offence or an offence of a political character.

The Minister may exercise the discretion not to surrender a person where:

• 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 Supreme Court of Canada has held that assurances the death penalty will not be imposed are required in all but exceptional cases);
• The person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction;
• The person was convicted in their absence and could not, on surrender, have the case reviewed;
• The person was less than eighteen years old at the time of the offence and the law that applies to them in the requesting country is not consistent with the fundamental principles of the Youth Criminal Justice Act;
• The conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or
• None of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.

A treaty’s own grounds for refusal can take the place of some of these. If the Minister of Justice does not discharge the person, he or she is then surrendered to the other state and the extradition process is essentially complete.

If the Minister decides not to make a surrender order, the Minister shall order the discharge of the person sought.

This is the stage where humanitarian factors, such as health or family circumstances, are most vigorously debated.

It is possible to appeal an extradition order as well as a variety of other rulings that may occur during the extradition hearing including the bail detention order and the Minister’s order to surrender a person sought for extradition.

A committal can be appealed to the Court of Appeal as of right on a question of law, and with leave on a question of fact or mixed fact and law. The notice of appeal must be given within 30 days of the committal. The Minister’s surrender order is challenged by judicial review in the Court of Appeal, within 30 days of the decision being communicated. A bail decision can be reviewed by a single judge of the Court of Appeal.

A person can not be extradited until after the appeal court has rendered a final decision on any outstanding appeals arising from the extradition process including the extradition hearing or the minister’s order.