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Extradition Lawyer Toronto
Daniel Brown knows how tough it is to fend off an attempt at extradition to a foreign country. He has extensive knowledge of both foreign and domestic extradition laws and can help you fight extradition or work with foreign authorities to negotiate the terms of any surrender and ultimate resolution.
In many cases, Daniel Brown is retained by his clients to assist them with securing counsel in the foreign jurisdiction and works alongside those lawyers to help solve their clients’ extradition problems. In some cases, if you are a Canadian citizen, he can even assist in making arrangements for you to serve any sentence imposed by a foreign court here in Canada.
Given Daniel Brown's extensive knowledge of extradition law and procedure, he is often sought out by the media to comment on national and international stories on the subject. Recently, Daniel spoke with both CBC and CTV about two high profile extradition cases in the news.
- CTV Canada AM, “Will Amanda Knox be extradited?”
- CTV News Channel, “Magnotta in court”
- CBC News, “Magnotta extradition could take months”
Frequently asked questions about extradition law in Toronto, Ontario:
- What Is extradition?
- Will Canada extradite a person to any country making an extradition request?
- Can Canada extradite a person to an extradition partner for any type of criminal offence?
- Will Canada extradite a Canadian citizen to another country?
- Which countries currently have extradition treaties with Canada?
- What is the process involved to extradite someone from Canada to another country?
- When will the Minister decide to issue an arrest warrant as opposed to a summons?
- How can someone obtain bail for an extradition charge?
- What grounds will the Minister consider to deny an extradition order?
- Can an extradition order be appealed?
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.
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.
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 more 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.
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.
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.
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” (ATP).
Once the ATP has been issued, the Minister makes arrangements to either have the individual arrested or summoned to court.
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 Superior Court of Justice and generally follows 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.
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 file paperwork with the court outlining information about themselves and detail the plan of release and supervision. Read my article on obtaining bail or more specific information on the bail process.
The following is a recent example of a successful extradition bail hearing:
- R v. D.M. - Wanted for extradition after fleeing the USA without serving his entire sentence.
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.
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).
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.
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 an extradition hearing. Daniel Brown is available at (416) 297-7200 for a consultation about your case.