What You Need To Know About Canadian Extradition
High profile stories about international extradition are regularly in the Canadian headlines. However, few Canadians have a true understanding of what is involved in extraditing someone in Canada to another country.
If another country seeks the extradition of a person in Canada, Canada will receive evidence from that foreign country (called the requesting state) to prove that the conduct of the person sought would have been a criminal offence if it had been committed in Canada. In other words, Canada will look to determine if the matter concerns a legitimate crime, from Canada's perspective.
The requesting country also must establish the crime would be punishable by two or more years of incarceration if it were committed in Canada (sometimes the potential incarceration must be 5 years). This is called the principal of "dual criminality".
Once this evidence is received by Canada, the Minister of Justice has the individual sought to be extradited arrested. Depending on the circumstances, the person may be released on bail or held in custody while he or she waits for the extradition hearing. This is called a "provisional arrest warrant".
After the arrest, there will be an extradition hearing before a Superior Court judge. it is important to realize that an extradition hearing is not a criminal trial. The requesting state is not required to prove the person's guilt beyond a reasonable doubt before the extradition will be granted.
The judge presiding over the hearing considers the following (a) was the person before the judge in fact the person identified by the requesting state? and (b) does the "dual criminality" exists?
Many Canadians are surprised to learn that the Charter of Rights and Freedoms does not apply fully to the person for whom extradition is being sought. Most significantly, the extensive disclosure rights (Stinchcombe rights) held by persons facing trial in Canada for criminal offences alleged to have been committed in Canada do not apply to an extradition hearing. The person opposing extradition does not have a Constitutional right to all relevant evidence.
The extradition hearing has been characterized as an "expedited process". The judge presiding over the hearing need only be satisfied that the evidence tendered by the requesting state is enough to establish on a prima facie basis that the extradition crime has been committed. That is a fairly low standard of proof.
The judge at the extradition hearing must:
-discharge the person, or
-order his or her committal to the Minister of Justice.
Where the judge makes a committal order, the person committed can appeal.
It should be noted that the judge presiding over the hearing will look at each count or alleged offence individually.
Where an appeal of the committal order is unsuccessful or not pursued, the Minister of Justice will determine whether or not to make the "surrender order". The decision of the Minister of Justice can be subject to judicial review (similar to an appeal).
If the Minister of Justice surrenders the person, and a judicial review is not pursued or is unsuccessful, the person is then surrendered to the requesting state.
If another country seeks the extradition of a person in Canada, Canada will receive evidence from that foreign country (called the requesting state) to prove that the conduct of the person sought would have been a criminal offence if it had been committed in Canada. In other words, Canada will look to determine if the matter concerns a legitimate crime, from Canada's perspective.
The requesting country also must establish the crime would be punishable by two or more years of incarceration if it were committed in Canada (sometimes the potential incarceration must be 5 years). This is called the principal of "dual criminality".
Once this evidence is received by Canada, the Minister of Justice has the individual sought to be extradited arrested. Depending on the circumstances, the person may be released on bail or held in custody while he or she waits for the extradition hearing. This is called a "provisional arrest warrant".
After the arrest, there will be an extradition hearing before a Superior Court judge. it is important to realize that an extradition hearing is not a criminal trial. The requesting state is not required to prove the person's guilt beyond a reasonable doubt before the extradition will be granted.
The judge presiding over the hearing considers the following (a) was the person before the judge in fact the person identified by the requesting state? and (b) does the "dual criminality" exists?
Many Canadians are surprised to learn that the Charter of Rights and Freedoms does not apply fully to the person for whom extradition is being sought. Most significantly, the extensive disclosure rights (Stinchcombe rights) held by persons facing trial in Canada for criminal offences alleged to have been committed in Canada do not apply to an extradition hearing. The person opposing extradition does not have a Constitutional right to all relevant evidence.
The extradition hearing has been characterized as an "expedited process". The judge presiding over the hearing need only be satisfied that the evidence tendered by the requesting state is enough to establish on a prima facie basis that the extradition crime has been committed. That is a fairly low standard of proof.
The judge at the extradition hearing must:
-discharge the person, or
-order his or her committal to the Minister of Justice.
Where the judge makes a committal order, the person committed can appeal.
It should be noted that the judge presiding over the hearing will look at each count or alleged offence individually.
Where an appeal of the committal order is unsuccessful or not pursued, the Minister of Justice will determine whether or not to make the "surrender order". The decision of the Minister of Justice can be subject to judicial review (similar to an appeal).
If the Minister of Justice surrenders the person, and a judicial review is not pursued or is unsuccessful, the person is then surrendered to the requesting state.
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