Extradition is the process through which one country can seek to have another country surrender a person who is wanted to face trial or serve a sentence for a criminal offence. Canada has extradition treaties and agreements with a large number of countries, and individuals in Canada regularly face extradition to other countries. There are also many cases where Canada will seek to have an individual outside of Canada extradited to Canada for criminal proceedings.
The process of extradition from Canada takes place in several stages. The initial stage usually involves a request from the other country for the person being sought. The request could take the form of a formal extradition request if the authorities in the foreign jurisdiction know the person sought is in Canada. In other cases, the authorities in Canada will become aware someone is wanted in a foreign jurisdiction through other means such as shared police databases or notices from organizations like Interpol.
Canadian authorities can obtain a warrant to arrest someone who is wanted in another country even before a formal request for extradition has been made. Once the person is arrested, the other country has 60 days to make a formal request for extradition. If the request is made, the Minister has another 30 days to issue an authority to proceed with the extradition process. In many cases, a warrant will not be obtained until after a formal request has been considered by the Minister and the authority to proceed has already been issued.
Once Canada has received a formal request for extradition, the Minister of Justice decides whether the extradition should proceed. The authority to proceed issued by the Minister will identify the person being sought and set out the offences in Canadian law that form the basis for the extradition request.
Before the extradition hearing, the country seeking extradition provides a detailed summary of the case against the person sought for extradition, usually in the form of a “record of the case”. The record of the case explains the alleged offences and describes the evidence that is expected to be available at a trial in the foreign jurisdiction. More information can be added to the record of the case in the form of supplemental records.
The committal hearing is held before an extradition judge, who will decide two main issues related to the extradition request. First, the judge will decide whether the person before the Court is the person sought by the foreign jurisdiction. Second, the judge will decide whether there the evidence that is said to be available for a trial in the foreign jurisdiction would be enough to hold a trial in Canada in similar circumstances. The actual test being applied by the judge is whether a there is evidence available that, if believed by a jury, could result in a conviction.
If the extradition judge orders committal, the Minister of Justice must consider whether to order surrender. The person who is sought for extradition has an opportunity to make submissions to the Minister. The submissions are a very important stage in the process even if the Minister decides to order surrender. In many cases, assurances or other concessions can be obtained from the foreign jurisdiction which protect the rights or interests of the person being sought for extradition. The wording of the surrender order can have significant implications in the foreign jurisdiction, as the individual should not be prosecuted for any offences in the foreign jurisdiction other than those set out in the surrender order.
Both the decision to commit for extradition and the decision to order surrender are subject to appeal and judicial review in the Court of Appeal. The appeal of the committal decision and the judicial review of the surrender order are generally heard together, and the surrender to the foreign authorities cannot take place until after a decision by the Court. The Court of Appeal can decide to send the matter back to either the Minister or the extradition court, or can make its own decision on certain issues. If the Court of Appeal confirms the decisions on committal and surrender, then the final appeal would be with the Supreme Court of Canada.
Once the Court of Appeal has decided the appeal and judicial review, the unsuccessful party can seek leave to appeal to the Supreme Court of Canada. Unlike the Court of Appeal, the Supreme Court of Canada does not hold hearings in every extradition case. In order to get a hearing in the Supreme Court of Canada, the case must raise legal issues of national importance.