Extradition law starts with a basic principle that persons are subject to the criminal law of the country in which they find themselves and should expect to be answerable to those laws.
Extradition proceedings have two important objectives:
- To protect the rights of the person whose extradition is sought
- To effectively fulfill international obligations.
Extradition proceedings take place in three stages:
- an Authority to Proceed from the Minister of Justice;
- a committal hearing in Superior Court;
- a Surrender Order issued by the Minister;
The basic principle in extradition matters is the requirement of dual criminality. Accordingly, Canada does not extradite a person to another country to be tried and punished for an act that would not be criminal if committed in Canada. The Authority to Proceed from the Minister of Justice serves, at the outset, to determine whether the acts committed by the person whose extradition is requested would constitute a criminal offence if they were committed in Canada. It must be kept in mind that extradition proceedings are not a trial and different rules of evidence apply to expedite the process.
Steps in the Extradition Procedure
In the Authority to Proceed the Minister identifies the corresponding criminal offenses in Canadian law in order to ensure the principle of double criminality is respected. The second step is the committal hearing where the extradition judge determines whether there is enough evidence to justify trial if the acts had been committed in Canada. If so, the person is committed for extradition in order to be tried in the country where the acts were committed.
It is important to remember that the second step is an expeditious procedure to determine only whether there is sufficient evidence to justify a trial. Once committal is ordered by the extradition judge, the Justice Minister is again consulted to exercise his power to decide whether or not to extradite the person sought.
The Extradition Act provides for some situations in which the Minister may or must refuse extradition. For example the Minister must refuse any extradition if the measure would be”unjust or oppressive” or if the extradition would be contrary to the Canadian principles of fundamental justice.
Finally, the Court of Appeal has the power to review the correctness of the judge’s decision to commit for extradition and the Minister’s decision to surrender the person sought to the requesting State.
Post to follow soon on Developments in Extradition Law.