Extradition is a fascinating branch of the law as it involves international politics, criminal law, international law and conflict of laws, the courts, the federal Minister of Justice and the Governor General.
Extradition is the surrender by one country, at the request of another country, of a fugitive who is either accused or convicted of a crime by the requesting country. It differs from deportation which is an immigration matter. Also, deportation does not necessarily require a court hearing; extradition does.
Extradition is the surrender by one state or entity at the request of another state or entity of a person who is wanted for prosecution for, or has been convicted of, a crime committed within the jurisdiction of the requesting state or entity.
Extradition in Canada is governed by the terms of the new Extradition Act2. The Parliamentary summary of the legislation describes it as “[creating] a comprehensive scheme, consistent with modern legal principles and recent international developments”. The Act repealed the former Extradition Act and the Fugitive Offenders Act.
The Minister of Justice is responsible for the implementation of extradition agreements, the administration of the Act and responding to requests under the Act. In addition, the Minister’s agreement is required for the Minister of Foreign Affairs to conclude a specific agreement or modify the schedule of extradition partners designated pursuant to s. 9.
The Act provides for the surrender of persons to “extradition partners”. An extradition partner is defined by s. 2 of the Act to include both a state or entity (such as international tribunals) with which Canada has an extradition agreement through bilateral or multilateral agreement, which is generally designated, or with which Canada has entered into a specific agreement. The names of those partners which have been generally designated pursuant to s. 9 of the Act are set out in a schedule to the Act.
Extradition involves the surrender of persons to or from Canada. The process of extradition from a state or entity to Canada will not be examined in detail in this chapter. Ministerial participation is generally limited to making the original request to the state or entity upon the request of the competent Canadian prosecutorial or correctional service authority.
The first phase of the process is called the "judicial phase". The judicial phase includes various functions, such as issuing process for the person to appear in court, the consideration of bail, determining the place of the hearing, and conducting the extradition hearing. The judicial phase takes place only if the Minister, in response to a request for provisional arrest by an extradition partner: 1) authorizes the Attorney General to apply for a provisional arrest warrant3; or, 2) having received an extradition request, issues an authority to proceed4 authorizing the Attorney General to apply to a court for an order for committal for the Canadian offences set out in the authority to proceed.
A person may consent in writing before a judge to be returned to the requesting partner without further proceedings or to be committed to await the decision of the Minister or to be surrendered pursuant to a Minister’s order.
Upon committing the person to custody to await the Minister’s decision on surrender, the judge issues a report and transmits it along with all other materials to the Minister. The judge may also order that things seized at the time of the arrest of the person be transferred to the requesting partner at the time of the surrender.
The Supreme Court of Canada held in U.S.A. v. McVey5 that the role of the extradition judge was confined to a consideration of the sufficiency of the evidence, and that it excluded any "policing" of the treaty requirements which were ruled to be within the exclusive jurisdiction of the Minister. The legislation grants various powers to the judge which are relevant to the limited purposes of the judicial phase.
Thus, the role of the court in this phase is ultimately to examine the evidence produced by the requesting partner and determine whether it is sufficient to warrant committal. The Minister of Justice, on the other hand, considers whether or not the person sought should be surrendered to the requesting partner.
If the person sought is committed for surrender by the extradition judge, then in the second or "executive phase", the Minister of Justice decides whether the person sought should be surrendered to the requesting partner in accordance with the applicable treaty, the legislation and the Charter. The Supreme Court of Canada confirmed in November 1992 in Idziak v. Minister of Justice6 that the second phase of the decision making process is political in nature.
The Court said (at p. 659):
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Parliament chose to give discretionary authority to the Minister of Justice. It is the Minister who must consider the good faith and honour of this country in its relations with other States. |
Under section 40 of the Act, the Minister of Justice is empowered to personally order the surrender of the person sought:
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The Minister of Justice, may, within a period of ninety days… of a person’s committal personally order… the person be surrendered to the… partner. |
Section 43 of the Act provides that a person committed for surrender has thirty days from the date of committal to make submissions to the Minister of Justice in relation to the issue of surrender.
A person may choose not to exercise this right and either make no submissions or request that the surrender take place immediately. In the latter case, the person is usually prepared to be surrendered but seeks formal surrender to obtain the protections of the rule of specialty7 and the rule against re-extradition to a third state. In these cases, the IAG will provide the Minister with a summary of the case to consider in making the decision on surrender.
If the person has claimed Convention refugee status pursuant to the Immigration Act, the Minister must consult with the minister responsible for this Act prior to deciding on surrender8. The issuance of an authority to proceed for an offence punishable by 10 years imprisonment or more suspends the refugee status determination procedure. In addition, where the Minister orders surrender for such an offence, the order is deemed to be a decision that the person is not a Convention refugee.
The Minister’s decision on surrender must be made within ninety days of the committal order with the possibility of an additional sixty day extension where submissions are made. These statutory limits apply whether or not there is an appeal from committal pending with a court of appeal unless the Minister chooses to delay the surrender decision pending resolution of that appeal. The legislation provides for the hearing of the appeal from committal and review of the Minister’s decision simultaneously by a court of appeal. When the Minister decides to defer the decision on surrender until after an appeal, the decision on surrender must be made within forty-five days of the appeal decision if the committal is upheld.
The Minister’s decision to order surrender is reviewable in the court of appeal of the province in which the person sought was committed for extradition.
If the person is serving a sentence in Canada, the Minister may:
If the person has been temporarily surrendered and returned to Canada, the person may be finally surrendered at the time specified by the Minister to serve the sentence imposed in the requesting partner. If the person is charged in Canada, the Minister may also order that surrender proceed notwithstanding the pending prosecution. Such orders by the Minister prevail over other orders.
Before the court of appeal, one counsel will represent the Minister and the requesting partner and argue all issues, unless on the facts of the particular case, there will be a difference in the positions to be advanced by the Minister and the requesting partner or if it would not be appropriate for other reasons.
If the Minister of Justice decides to surrender a person and signs the surrender order accordingly, the person has thirty days to file an application for judicial review of the decision. If neither an appeal nor an application for judicial review is filed, the person must be removed from Canada within forty-five days of the date of signature of the surrender order. If the Minister denies surrender, the person is discharged.
If an appeal is filed, no steps will be taken to surrender the person until that appeal is determined. If the appellate court dismisses the appeal from committal or review of the Minister's decision, there remains no matter pending before a court and the person must be removed within forty-five days of that dismissal. As there is no right to appeal to the Supreme Court of Canada-- only the possibility of an application for leave-- the person must be removed from Canada within the forty-five day period even though the statutory time for filing an application for leave to appeal has not expired. However, once a matter is dismissed by an appeal court the person is advised directly or through counsel that he or she has thirty days in which to file an application for leave to appeal or the person will be removed from Canada. If an application for leave to appeal is filed in the Supreme Court of Canada, surrender will be delayed until proceedings have been completed.
Pursuant to s. 74 of the Act, the Minister may consent to the transit through Canada of a person surrendered by one state or entity to another. To that end the Minister may impose appropriate conditions and authorize the entry into Canada of a person who would otherwise be inadmissible under the Immigration Act.
The Minister of Justice is also the authority through which requests for extradition made by Canada are submitted to foreign states. The Minister will request extradition only at the behest of the competent Canadian prosecution or corrections authority. The role of the Minister is performed by IAG counsel. The Minister may authorize agents of the foreign state or entity to bring the person surrendered to Canada in custody and to deliver this person to the appropriate Canadian authorities.
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 country’s 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.
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 there’s 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, it’s 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
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 it’s 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 person’s political
"offence" in the requesting country was non-violent, Canada will
refuse to surrender the individual. There has been some criticism of Canada’s
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 Rafay’s
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."
EXTRADITION FACT
Some countries that have signed
extradition treaties do not allow their own citizens to be extradited to
foreign countries. Canada does.
CHILE
INTRODUCTION:
PINOCHET'S ARREST
On 16th October 1998, the human rights status quo was shaken. The arrest, in London, of General Augusto Pinochet Ugarte came as a stunning surprise to both his friends and his foes. The British Government found itself in a political storm at home and in a diplomatic nightmare with Chile - a country which had experienced a dark age of dictatorship under the General and which its government, at least, seemed determined to forget.
Opinion was deeply divided. Prominent figures in Britain spoke out strongly both for and against Pinochet's arrest, and the divisions and painful memories of the past in Chile were rekindled. The eternal play between idealism for the rights of the individual and the expediency of real politick was suddenly brought home and into sharp relief. A legal and political decision had to be made one way or the other. Which would win the day, the striving for human rights or the pragmatism of international relations?
Sovereign Immunity: Could extradition proceedings even begin?
A Spanish judge, Baltasar Garzón, had presented Britain with an extradition warrant to bring Pinochet to trial in Spain. The warrant accused the General of human rights abuses under his dictatorship, and Britain's High Court did accept that he had a prima facie case to answer. However, the High Court also accepted the main defence presented by Pinochet's lawyers - that since he was Chile's head of state at the time of the alleged crimes, English and international law granted him sovereign immunity from prosecution. And since, also, the Chilean government protested at the arrest, refusing to exercise its power to waive Pinochet's immunity, the High Court ruled that it had no legal right to begin extradition proceedings against him.
Despite the High Court's unanimity and certainty of its decision, leave to appeal against it was granted, in view of the international importance of the case. Dramatically, the appeal in Britain's highest court, the House of Lords, succeeded, this time ruling by the narrowest three to two majority that crimes against humanity could not be considered as the normal acts of a head of state. Therefore, Pinochet's claimed sovereign immunity did not extend to the allegations spelled out in the Spanish extradition warrant, and extradition proceedings could commence after all.
But the plot thickened. It was revealed that one of the law lords, Lord Hoffman - who had been one of the three to judge against Pinochet - had strong links with Amnesty International, a human rights campaigning group that had contributed towards the case against Pinochet's claim of immunity. As a result, a team of law lords took the highly unusual step of annulling its own ruling: the risk of bias in Lord Hoffmann's deliberations meant that even if his decision were just and impartial, doubts would remain and justice would not be seen to have been done.
And so, as General Pinochet spent an unexpected Christmas in Wentworth, Surrey, another team of law lords was selected to re-hear the case. This repeat hearing in the House of Lords ended on 4th February, and we await the third - and presumably final - judgement with baited breath...
...On 24th March 1999, the law lords announced a verdict, by six to one, that General Pinochet was, indeed, not entitled to absolute immunity from the legal proceedings of our domestic courts. However, this was only from 8th December 1988 and only regarding certain of Spain's draft charges. The lords now decided - contrary to their earlier judgement - that before this date Pinochet does have immunity from legal proceedings in our courts.
Bizarrely, the lords’ reasoning had become quite different. Previously, they had argued that Pinochet did not have state immunity because crimes against humanity could not be regarded as the actions of a head of state; only actions of the state brought immunity with them. Since this was an argument based on the scope of immunity as such, this judgement said in effect that any former head of state lost their immunity once they engaged in crimes against humanity. Now, however, the restriction of immunity was argued for in a more clearly legally grounded way, by explicit reference to an international treaty signed, ratified and - in theory - made effective by, among others, Britain, Chile and Spain. According to the law lords, immunity was removed from crimes covered by the United Nations Convention Against Torture when this convention came into effect for the states concerned. It came into effect in Britain on 8th December 1988: therefore, Pinochet had immunity before that date (law does not normally act retrospectively) but no immunity after that date for crimes covered by the convention.
The result of this was that most of the charges drafted by Spain could not be levelled against Pinochet in our courts for the purpose of extradition proceedings. This was either because they related to events prior to 8th December 1988 or because they were not crimes covered by the Convention Against Torture. Of the 32 charges, only two now remained - one of torture and one of conspiracy to torture.
The law lords therefore decided that the Home Secretary, Jack Straw, would have to reconsider his earlier Authority to Proceed with moves to extradite Pinochet. As the ruling on the basis of which Straw had issued his first Authority had now been overruled, he would have to consider the case afresh.
The case against Pinochet was now significantly weakened. Almost immediately, the Spanish prosecutor Baltasar Garzón sent further allegations to the Crown Prosecution Service, allegations which fall within the new criteria for Pinochet's lack of immunity: Garzón presented 43 new cases of torture and conspiracy to torture occuring after 8th December 1988. Secondly, Garzón argued that all unresolved cases of disappearance are regarded, under the 1992 UN Declaration on the Protection of Disappeared Persons, as currently open cases of torture.
On the other side, General Pinochet's lawyers also responded on two fronts. Firstly, they applied for a judicial review of Jack Straw's earlier Authority to Proceed. Secondly, they applied for a writ of habeas corpus to release Pinochet from house arrest. However, the High Court adjourned both of these hearings until 15th April, to give the Home Secretary time to reconsider his Authority to Proceed. Lord Justice Laws reasoned that some order should be maintained in the legal developments: going ahead immediately with the application for habeas corpus, "might allow Gen Pinochet to be discharged and leave the country without the Secretary of State having the opportunity to reconsider the merits of this matter."
Extradition: An executive decision
Despite the reduction in the number of charges remaining after the law lords' second ruling against Pinochet, on 15th April Jack Straw gave the go-ahead for extradition proceedings by issuing a new Authority to Proceed. The Home Secretary made the judgement that the remaining charges still meant that Pinochet appeared to be legally extraditable. Furthermore, while the Home Secretary had the executive power to exercise his "wide" discretion to block extradition proceedings, he saw no reason to do so, neither on the humanitarian grounds of Pinochet's alleged ill health - "it does not appear that Senator Pinochet is unfit to stand trial", Straw concluded - nor on political grounds, such as “the stability of Chile and its future democracy” or “the UK national interest”.
Pinochet's lawyers responded to this second Authority to Proceed by applying to the High Court for a judicial review of Straw's decision. However, on 27th May, the application was turned down. Despite having the legal option to make a second, similar application, on 7th June Pinochet's legal team decided against this. Extradition proceedings would finally commence.
The extradition hearings began on 25th September at Bow Street Magistrate's Court, under Ronald Bartle, Deputy Chief Metropolitan Magistrate, and lasted for four days. He ruled, on 8th October, that under the 1989 Extradition Act, it was clear that Pinochet could indeed be extradited to Spain, subject to the Home Secretary's final decision. Bartle allowed the inclusion of the further charges added by Garzón since the Lords' judgment: this brought the extraditable charges to 35, one a wide-ranging charge of conspiracy to torture and 34 charges of torture. Furthermore, he ruled that charges of conspiracy and of disappearance prior to 8th December 1988 could be included, because "conspiracy is a continuing offence", and "the effect on the families of those who disappeared can amount to mental torture".
But even this was by no means the end of the story. As well as Pinochet's lawyers, on 22nd October, appealing against the Bow Street magistrate's decision (in the form of an application for a writ of habeas corpus), on 5th November Jack Straw, under pressure to consider releasing Pinochet on health grounds, asked him to submit to independent medical tests.
From a legal point of view, England's courts have
had to decide whether General Pinochet has a case to answer and whether they
have the jurisdiction to begin pursuing that case by commencing extradition
proceedings against him. It must be remembered that the High Court accepted
that Pinochet does have a case to answer[2], and his defence lawyers have never seriously denied this fact. The
evidence of massive human rights abuses by Pinochet is so overwhelming that he
can only effectively be defended on the legal technicality of his claimed
sovereign immunity under English and international law.
The High Court was told of Chile's official, authoritative and thorough report on the systematic abuse of human rights that was carried out with the full knowledge of General Pinochet.[3] Pinochet's direct rule came to an end when he was defeated in the plebiscite of 5th October 1988, and the Commission for Truth and Reconciliation (or Rettig Commission) was set up under President Patricio Aylwin by his decree of 25th April 1990.[4] The Commission's findings were presented to the nation on 4th March 1991[5]:
Although the Chilean panel's report
is not yet widely available, its publication is bound to have [a] cathartic impact
on a sophisticated society in which many members of the elite refused to
believe that the authorities could perpetrate such horrors.
The report, based on nine months of testimony and research, describes several
stages of repression. In the weeks after the military seized power in a coup
Sept. 11, 1973, thousands of Chileans sympathetic to the socialist government
were detained. Many were tortured, and several hundred were tried and executed
by military war tribunals.
A woman described the corpse of her son, the manager of a state cement plant,
who turned himself in after the coup and died in custody five weeks later:
"He was missing one eye, his nose was torn off, one ear was separated and
hanging, there were marks of deep burns on his neck and face, his mouth was
very swollen."
In the next stage, the army's secret police squads waged a "systematic
campaign to exterminate" leftist dissidents from 1974 to 1977, the report
states. Inside clandestine prisons, people were tortured with electric shocks,
choking, confinement and even animal rape. There were 957 victims who never
reappeared and are presumed dead.The report was
strongly critical of the military's claim that Chile was in a state of war
after the coup, which had been the justification of the continued activity of
military courts. It also criticised the military
courts for imposing retroactive punishment for actions that had occurred before
they were made illegal, for refusing to make the bodies of those executed
available to their families, and for "infraction of fundamental legal
norms and essential ethical principles." The commission was still more
critical of the civilian judiciary, which, it said,
"because of the constitution, the law, and the nature of its
functions" was the state institution "responsible for the protection
of such rights." It accused the judiciary of "worsening the process
of the systematic violation of human rights, both by not offering protection to
the persons whose cases were denounced to it, and by providing the agents of
repression with increasing certainty that they would not be punished for their
criminal acts." Examples cited by the commission included indefinite
delays in responding to habeas corpus requests and inaction on persons held
incommunicado for periods of up to a year.[7]
Pinochet's military junta had justified its intervention as a response to a breakdown in law and order under the government of President Salvador Allende. And yet, they succeeded in instituting a breakdown that, by comparison, made life under Allende a model of socialist paradise. If this were the price of fighting socialism, then "Better Red than dead" took on a new, humanitarian meaning. Is it any wonder, then, that General Pinochet became an icon of American-inspired capitalist aggression, after the revelations of the US state, CIA and corporate contribution to Allende's violent downfall.[8]
The Rettig Commission was mandated to investigate only cases of human rights abuses that had resulted in death. (We shall return to this point below.) Even so, the Report set out the following statistics: Out of a total of 2920 such cases investigated by the Commission, a definite conclusion was reached on 2279. The vast majority of these 2279 cases concerned individuals who had been killed by the state; in other words, murdered by those very people - from the police, intelligence services and the armed forces - who, in principle, were supposed to be protecting citizens from violence. The Commission received a further 508 cases which did not fall within its mandate. It also received 449 names with no accompanying information; the Commission decided - perhaps rather curiously - that for these, therefore, "there was no basis for carrying out an investigation."[9]
On the recommendation of the Rettig report, a follow-up organisation, the Reparation and Reconciliation Corporation, was established on 8th February 1992. Its original mandate was to run until 15th July 1993, but this was extended several times.[10] Eventually reporting in 1996, it took over the continuing investigations on the 641 cases the Rettig Commission had been unable to resolve, and receiving and investigating those cases which had not been presented during the Rettig Commission's one year period of operation... [It] officially recognised a further 123 'disappearances' and 776 extrajudicial executions and death under torture during the military period. Combined with the findings of the Truth and Reconciliation Commission this brought the number of 'disappearances' to 1,102 and extrajudicial executions and death under torture to 2,095, making a total of 3,197 cases that were officially recognized by the Chilean state.
Chile’s former dictator Augusto Pinochet has had all charges against him dropped.
The Supreme Court upheld a controversial verdict that found him mentally unfit to stand trial for human rights crimes during his 17-year rule. The latest ruling is a defeat for rights lawyers who had exhausted the appeals process but resorted to a little-used tactic earlier this year to try to reopen the trial against the 86-year-old former ruler.