INDEPTH: CRIME |
Extradition: The longest arm of the law
CBC News Online | Feb. 27, 2006
When Canada updated its extradition laws in 1999, it was the first major reworking of the countryís prevailing legislation on the matter since the 19th century. The new Extradition Act replaced the old Extradition Act of 1877 and the Fugitive Offenders Act of 1882. Those Victorian-era pieces of legislation were silent on many crimes of the modern era – such as telemarketing fraud and internet crime – and out of date in other areas like organized crime and the drug trade.
But beyond modernizing and streamlining the extradition process, the government said one of the most important aims of the new Extradition Act was to prevent Canada from becoming a "safe haven" for fugitives from other countries.
Extradition is a complex, international process that involves the courts, the federal government, international law, and a raft of individual binational treaties. It should not be confused with deportation, which is administered by the immigration department. Simply put, extradition is the formal procedure that begins when one country asks another country to return someone who has been accused of a crime or has been convicted of one in the requesting country.
Canadaís first bilateral extradition treaty was signed with Iceland (July 7, 1873)
Requirements for extradition
The Extradition Act sets out specific preconditions for extradition. Fugitives can be extradited for only three reasons: for prosecution, to impose a sentence, or to enforce a sentence that has already been imposed.
There must also be some kind of legal agreement between Canada and the other country. That can take the form of a binational extradition treaty or some other kind of multilateral agreement that specifically contains provisions dealing with extradition.
Canada has signed bilateral extradition treaties with more than 50 countries.
If the requesting country is an "extradition partner," as listed in the act, formal extradition proceedings can also take place even in the absence of a specific treaty. Many Commonwealth countries, as well as Costa Rica and Japan, are listed in this way. The new Extradition Act also allows international criminal courts or tribunals to request extraditions from Canada.
The process is essentially a three-stage process. First, an accused is arrested under the Extradition Act following a diplomatic note sent by the requesting country. Following the arrest, the fugitive will eventually appear before a judge who determines if thereís a prima facie case – in other words, is there enough evidence that would commit the accused to trial if the offence had taken place in Canada? If not, the fugitive is let go. If there is, the fugitive heads off to prison.
If the fugitive is committed to prison, he or she has several avenues of appeal. Once those are exhausted, itís all up to the minister of justice. He or she is the only person who can authorize the surrender of a fugitive to another country.
The 'Dual Criminality' issue
Some countries that have signed extradition treaties do not allow their own citizens to be extradited to foreign countries. Canada does.
People can be extradited only if the offence they're accused or convicted of is a crime in both countries – the "dual criminality" test. If the offence is a crime in just one of the countries, no extradition can take place.
And itís not just any offence. Extradition is meant to apply to relatively serious crimes. Under Canadian law, the threshold is specific. To qualify for extradition, Canada will not allow anyone to be extradited unless the offence involved could have resulted in a jail sentence of two years or more had it taken place in Canada. The specific crime must also be listed in the relevant treaty.
Canada will generally not allow the extradition of people charged with political offences in another country. As long as the personís political "offence" in the requesting country was non-violent, Canada will refuse to surrender the individual. There has been some criticism of Canadaís decision to extradite those who some view as political prisoners whose prosecutions may be politically motivated.
But the Department of Justice says the role of the extradition judge is to determine if there is enough evidence presented that, if the "conduct had been carried out in Canada, the judge would order the person to stand trial in Canada." In other words, the judge cannot test the quality or reliability of the evidence – that is the job of the trial judge and/or jury.
Exceptions in death penalty cases
While the particular offence must be a crime in both countries, the Extradition Act does not require that the punishments be equal. That has posed problems for Canada, which does not have a death penalty, but which has faced several extradition requests from the U.S. and several other countries, which do.
Section 44(2) of the Extradition Act gives the minister of justice the discretion to refuse extradition if capital punishment could be meted out under the laws of the extradition partner for the conduct in question.
When American Indian Movement activist Leonard Peltier was extradited from Canada in 1976, Canada sought assurances he would not face the death penalty. The assurances were given and Peltier was sent back to the U.S., where he was convicted of the murders of two FBI agents and sentenced to life in prison. Both his extradition and convictions remain highly controversial to this day.
In 1996, then Justice Minister Allan Rock asked for and was given similar assurances that the Philippines would not execute Rodolfo Pacificador. He was charged with the assassination of a political candidate in that country.
The cases of Atif Rafay and Glen Burns ended up making new extradition law in death penalty cases. The two Canadians were charged with the 1995 murders of Rafayís parents and sister in Washington state. They fled to Canada. Washington subsequently asked for their extradition. The justice minister said he was not bound to automatically seek assurances that they would not face execution. "If the general rule was that Canadians were never to be returned to face the death penalty in the United States, the result would be unsatisfactory," said a release from the justice department. "Canadian suspects who managed to return to Canada before arrest would gain an advantage, since they would never be extradited without assurances."
But on reviewing this case in 2001, the Supreme Court of Canada ruled that the minister of justice is constitutionally required to seek assurances that the death penalty will not be imposed in all but "exceptional" cases. The court did not spell out what it meant by "exceptional."
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Text of 1999 Extradition Act - from Canadian Legal Information Institute