Disguised Extradition Through Deportation as an Abuse of Process

AuthorJeffrey G. Johnston
ProfessionBA (Hons) (Western Ontario), LLB (Victoria)
Disguised Extradition rough
Deportation as an Abuse of Process
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
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.
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 .

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT