Extradition Lawyer in Toronto,
Ontario
An overview of the extradition hearing process in Toronto,
Ontario. Those looking for
advice on extradition hearings or any other criminal matter should
consult a
criminal lawyer.
What Is Extradition?
Extradition is meant to be a simple and expeditious
process by which Canada returns wanted fugitives to its partner nations.
An extradition involves the surrender of a person by one
country (such as Canada) to another for the purpose of prosecuting the
person or imposing a sentence on or enforcing a sentence imposed on the
person.
The Canadian Government may also extradite a person to the
International Criminal Court to prosecute them for war
crimes.
Will Canada Extradite a Person to Any Country Making an Extradition
Request?
Canada will only extradite a person from Canada to an
established “Extradition Partner”. In order to become an Extradition
Partner, the requesting country must have an existing extradition agreement
or treaty with Canada.
Can Canada Extradite a Person to an Extradition
Partner for Any Type of Criminal Offence?
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 term of with the potential sentence 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 term with the potential of two
years or more.
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 the portion of the term
remaining is at least six
months long or a more remains to be carried out.
Will Canada Extradite a Canadian Citizen to another Country?
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.
Which Countries Currently have Extradition Treaties with Canada?
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, 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.
An Overview of The Extradition Process
The extradition process from Canada may be described as 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”). 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.
i.) Step One - Initiating an
Extradition Request
The first step towards extradition begins with a request
from an extradition partner to the Minister of Justice alleging that the
person sought for extradition is wanted for the purpose of prosecution or
sentencing while that person was in the jurisdiction of the requesting
country.
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.
In some cases, depending on the requesting jurisdiction,
the threshold might be five years of incarceration if the alleged crime had
been committed in Canada subject to a specific treaty between extradition
partners.
If the Minister of Justice believes that the requirements
for extradition have been met, he will issue an Authority to Proceed.
Once the ATP has been issued, the Minister makes
arrangements to either have the individual arrested or summoned to court.
When Will the Minister Decide to Issue an Arrest Warrant as Opposed to a
Summons?
The Minister will consider the following factors to
support a decision to arrest a person 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 ability to 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 extradition bail hearing take place in the Superiour Court of Justice and
generally follow the same procedures as
bail hearings for criminal charges.
Once arrested, the person may be released on bail or other
conditions, or may be held in custody pending the extradition hearing.
ii) Step Two- The Extradition
Hearing
At the extradition hearing, the Judge must satisfy himself
that the person before him is in fact the person identified by the
requesting state for extradition.
The judge must also satisfy himself 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 offense 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 extradited
for the offences sought. 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.
iii.) Step Three – Extradition Appeal to the Minister of Justice
Once a person sought for extradition has been ordered
extradited by a judge, they have 30 days to appeal the decision in writing
to the Minister of Justice. 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).
Grounds for the Minister to Consider Denying an Extradition Order
The Minister may or may not surrender a person ordered
extradited by the Judge after an extradition hearing.
The Minister may exercise his discretion not to surrender
a person after considering some of the following factors:
· 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 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 conduct in respect
of which extradition is sought is a political offence or an offence of a
political character;
· 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;
·
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.
·
If the Minister of
Justice does not discharge the person, he/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.
Appealing an Extradition Order
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 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.
As you can see, extradition law is extremely
complex. Hiring an experienced extradition lawyer is crucial to your success
at these hearings. I am available at 416.297.7200 for a
free consultation about your case.
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