General Overview of the Canadian Extradition Process
Roles and responsibilities
The Extradition Act provides the Minister of Justice with various responsibilities.
The Minister's authority is, in large part, delegated to legal counsel in the International Assistance Group (IAG), a group within the Department of Justice Canada. These employees are all part of a non-partisan federal public service.
As with all delegation documents, this delegation document issued by the Deputy Minister of Justice delegates the power to approve a provisional arrest and issue an authority to proceed, as well as a number of more administrative duties, to IAG officials, who act on behalf of the Minister.
Request for extradition
A foreign country or entity is allowed to make a request for extradition of a person who is wanted to stand trial or to serve a sentence if that state or entity is an extradition partner under Canada's Extradition Act.
A person may be extradited from Canada only if the alleged criminal conduct in question and for which the extradition is requested is recognized as criminal by both countries. This is the principle of double criminality.
As communications between states are privileged, all information related to specific cases is confidential and cannot be released publicly until an arrest is made under an extradition warrant. A court may also order that the file be sealed (publication ban), in which case the information can not be divulged.
The foreign country may seek the extradition of a person in two ways: by providing Canada with a formal extradition request and supporting documentation or by requesting the provisional arrest of a fugitive, which must then be followed by a formal extradition request.
Upon the arrest (whether provisional or following the formal request for extradition), the person is brought before a judge of the Superior Court of the Canadian province or territory where the arrest was made to be spoken to and to set a time for a bail hearing.
When the arrest is provisional, the country or entity requesting the extradition has a set number of days (from the date of provisional arrest) to submit its formal request and documentation.
Counsel with the Department of Justice Canada's International Assistance Group, on behalf of the federal Minister of Justice, must determine within 30 days after the deadline for the receipt of the request and supporting documents, whether an Authority to proceed will be issued.
A decision whether to issue an Authority to proceed with the extradition is based on the criteria set out under the bilateral treaty. Canada cannot refuse to issue an Authority to proceed arbitrarily where the request complies with the requirements of a treaty.
The Authority to Proceed authorizes an extradition hearing to be held to consider whether the arrested person should be committed for extradition.
Counsel for the Attorney General of Canada handles cases on behalf of requesting states or entities. They initiate and conduct proceedings before a judge of the Superior Court of the province or territory to seek an order for the committal for extradition.
Extradition hearing (Judicial phase)
At the extradition hearing, the judge hears the case in two ways:
if the individual is sought to stand trial, the judge determines if the evidence provided by the extradition partner is sufficient to commit the person for trial in Canada if the conduct had occurred in this country
if it is for imposition or enforcement of sentence, the judge determines if the conviction was in respect of conduct that would be punishable in Canada, including evidence of identification.
If the presiding judge is satisfied with the evidence, they will order the person committed for extradition pending the decision of the Minister of Justice on surrender. Otherwise, the person is discharged and released.
The judicial phase of the extradition process is a determination only that the evidence is sufficient to warrant that the person be extradited. It is not a trial. A trial will take place in the requesting state or entity, if surrender is ordered.
Surrender of person ordered to be extradited (Ministerial Phase)
The Minister of Justice makes the decision with respect to whether the person will be surrendered to the extradition partner.
The Minister must decide on the surrender of the individual based on the wording of the Extradition Act. This decision cannot be delegated to any officials. Her discretion is a broad one, but must not be exercised arbitrarily.
At this phase of the process, commonly referred to as the executive or ministerial phase, the Minister will receive and consider any submissions from the person committed for extradition or counsel for the defence as well as for the Attorney General of Canada with respect to why he or she should not be surrendered, or concerning any conditions that should be attached to the surrender.
The person may appeal the decision of the extradition judge and/or apply for judicial review of the Minister's decision to a Court of Appeal.
If the appellate Court upholds the decisions of the extradition judge and the Minister, the person may seek leave to appeal either or both decisions to the Supreme Court of Canada.
The above does not take into account the possibility for any person to waive all or part of the extradition process.
Extradition to Canada
The extradition process is also used when Canada requires the extradition of a person to Canada from another country to stand trial or serve a sentence in Canada.
First, a competent authority (i.e. the Attorney General of Canada or the Attorney General of the province responsible for prosecution of the case) must make a request to the Minister of Justice.
At the request of a competent authority, officials with the International Assistance Group (IAG), on behalf of the Minister, will review the request and determine if it should be made.
The IAG may make a request to a state or entity for the extradition of a person in order to prosecute them for an offence over which Canada has jurisdiction or to impose or enforce a Canadian sentence. If it is required, the IAG may also make a request of the foreign country for the provisional arrest of that person.
The foreign country will then go through its own processes in responding to the request. Canadian officials will be advised of the progress of the proceedings. Canadian officers will bring back the person to Canada.