Montreal criminal lawyers with experience in extradition cases are scratching their heads after the decision of District Judge Vanessa Baraitser rejected the United States’ request to extradite WikiLeaks founder Julian Assange to face espionage charges over the publication of secret U.S. documents a decade ago, saying he was likely to kill himself if held under harsh U.S. prison conditions.

The judge rejected the broader defence argument that Mr Assange’s actions were justified under the constitutional protection of the freedom of the press.

It is worth noting the British court based its ruling on the finding that extradition in Mr Assange’s case would be “oppressive” in the circumstances, which is the same term found in Canada’s Extradition Act, which provides that the Minister of Justice to decline an extradition request when surrendering the person sought would be “…unjust or oppressive”.

In Canadian extradition cases the first step of the process – the judicial phase – is more limited in scope: in the absence of an allegation of abuse of process the judge’s role is only to determine whether the dual criminality requirement is met – i.e. whether the conduct alleged constitutes a serious crime in both countries –  and whether the requesting state has reliable evidence amounting to a prima facie case, while the  appropriateness of surrendering the person sought for extradition based on political and subjective factors is left to the Minister of Justice.

The Assange case will undoubtedly be appealed and it will be interesting to see whether the higher court(s) uphold the decision to deny extradition due to the anticipated harsh consequences facing the person sought. It is difficult to predict the result without reading the actual judgment and studying the British Extradition Act but most Montreal criminal lawyers probably agree such a judgment would be overturned by a Canadian appeal court.

This feeling arises from a number of Supreme Court cases which upheld decisions to extradite Canadians in circumstances where extradition would seem on its face to be “oppressive”. For example, extradition was approved where a person  was facing a sentence of life with no parole for a drug offence in the United States and the extradition of  a single mother to the US for violation of a custody order regarding her children was upheld by the court. Extradition cases in which the welfare of young children would be impacted by the absence of a parent serving long sentences in foreign countries – usually the US – are routinely approved by Canadian courts out of deference to Canada’s international obligations. In fact, in 1991 the Supreme Court approved the extradition of a person facing the death penalty in the requesting state, although the court subsequently reversed its position and refused to extradite a person facing execution.

Only in the most extreme circumstances have the courts refused to extradite on subjective humanitarian grounds. The best known case occurred when a prosecutor in the requesting state – USA, of course – proclaimed on television that Canadians resisting extradition would be subjected to  cruel treatment upon their eventual arrival.

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