Disguised Extradition Through Deportation as an Abuse of Process

• Author: Jeffrey G. Johnston
• Profession: BA (Hons) (Western Ontario), LLB (Victoria)
• Pages: 448-471

448

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Disguised Extradition rough

Deportation as an Abuse of Process

JEFFREY G. JOHNSTON*

A. INTRODUCTION

Extradition and immigration serve distinct, yet sometimes complement-

ary objectives. A person wanted for prosecution in another state might

be extradited or deported. Either way, from an extradition perspective,

the person will have to answer to the criminal justice system of that

state while, from an immigration standpoint, the removal of the person

from Canada is conducive to the public good. ere is nothing abusive

about this outcome. It is only when immigration proceedings are used

to deliberately circumvent the extradition process that these proceedings

or related extradition proceedings are vulnerable to attack on abuse of

process grounds.

Unfortunately, this form of “disguised extradition” is often distorted

in an attempt to stretch its application to factual scenarios it was never

intended to capture. e morphing of this concept has engendered

unwarranted concerns in cases where extradition and immigration pro-

ceedings overlap and resulted in avoidable legal uncertainty for Canadian

courts required to adjudicate this issue.

* Jerey G. Johnston, BA (Hons) (Western Ontario), LLB (Victoria), MSt (Dist)

(International Human Rights Law) (Oxon), General Counsel, Department of Justice

Canada, and part-time Professor, Faculty of Common Law, University of Ottawa.

e views expressed in this paper are those of the writer and all errors remain his.

Disguised Extradition Through Deportation as an Abuse of Process

449

is paper seeks to clarify this area of Canadian extradition law. It will

analyze the law of disguised extradition through deportation with the aim

of exposing the myths surrounding its application. e paper will seek to

separate fact from ction in explaining the narrow circumstances in which

extradition proceedings can be stayed as an abuse of process based on dis-

guised extradition owing to preceding or parallel immigration proceedings.

B. THE HISTORY OF DISGUISED EXTRADITION AS

ANABUSE OF PROCESS

Disguised extradition originated in criminal cases in which authorities

in the prosecuting jurisdiction employed extrajudicial means to return an

accused from another state to stand trial. Historically, these means typ-

ically involved the forcible abduction of the accused across state borders.

While this paper will focus on manipulating immigration proceedings to

achieve the purposes of extradition, this practice is objectionable for many

of the same underlying reasons. In , O’Higgins described this abuse

of the deportation power in these terms:

By this term [disguised extradition] we mean to refer to cases to which

the use of a power, with which it has been vested for another and dif-

ferent purpose, the state may give eect to a request for the surrender

of a fugitive criminal which it is not otherwise lawfully authorised to

do. us State A by exercising the authority given to it by its municipal

law to deport aliens may surrender an alien to his national state which

has requested his surrender for trial or punishment.

is form of disguised extradition takes place when a state relies “on

its immigration procedures such as exclusion, deportation and removal

to aect the transfer of an individual to the custody of another state for

the purpose of punishment.” For example, disguised extradition through

deportation occurs “where the evidence is not strong enough for extra-

dition and the authorities of both countries collude together through

 Paul O’Higgins, “Disguised Extradition: e Soblen Case” () : Modern Law

Review  at .

 Margaret L. Satterthwaite, “e Legal Regime Governing Transfer of Persons in the

Fight against Terrorism” in Larissa van den Herik & Nico Schrijver, eds, Counter-Ter-

rorism Strategies in a Fragmented International Legal Order: Meeting the Challenges

(New York: Cambridge University Press, ) at .