Submission to the Minister and the Minister's Surrender Decision

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 313-335

313

Submission to

theMinister andthe

Minister’s Surrender

Decision

14

I. Nature of the Minister’s Surrender Decision ................... 314

II. Timing of Submissions and the Surrender Decision ............. 315

III. Powers of the Minister ..................................... 316

IV. Reasons for Refusal ....................................... 318

A. Unjust or Oppressive ................................ 318

B. The Charter ........................................ 319

C. Other Provisions in the Act ............................ 322

V. Submissions by the Person Sought ........................... 323

VI. Once Submissions Are Completed ........................... 327

VII. The Surrender Order ...................................... 328

A. The Terms of the Surrender Order ...................... 329

VIII. Conclusion .............................................. 331

Appendix 14.1 Sample Outline for Submissions to the Minister ... 332

Appendix 14.2 Sample Order of Surrender .................... 335

314Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook

I. Nature of the Minister’s Surrender Decision

In considering whether or not to make submissions to the minister of justice regarding

surrender, one must first understand the purpose and scope of the minister’s authority

in deciding the issue of surrender. If the person sought is committed for extradition,

the matter reverts to the minister to consider whether the person sought should be

ordered surrendered to the requesting state. The minister’s surrender decision is largely

a political decision. As explained by the Supreme Court of Canada in Idziak:

Parliament chose to give discretionary authority to the Minister of Justice. It is the Min-

ister who must consider the good faith and honour of this country in its relations with

other states. It is the Minister who has the expert knowledge of the political ramifications

of an extradition decision. In administrative law terms, the Minister’s review should be

characterized as being at the extreme legislative end of the continuum of administrative

decision-making.…

It is correct that the Minister of Justice has the responsibility to ensure the prosecution

of the extradition proceedings and that to do so the Minister must appoint agents to act

in the interest of the requesting state. However the decision to issue a warrant of surrender

involves completely dierent considerations from those reached by a court in an extradi-

tion hearing. The extradition hearing is clearly judicial in its nature while the actions of

the Minister of Justice in considering whether to issue a warrant of surrender are primarily

political in nature.1

The minister’s surrender decision is at the extreme legislative end of the continuum

of administrative decision-making and is largely a fact-driven inquiry involving the

weighing of various factors and possessing a “negligible legal dimension.”2 In carrying

out his or her duties, the minister must take into account the constitutional rights of

the person being sought for extradition but also “Canada’s international obligations

and the requirement to act as a responsible member of the international community

in responding to a request by an extradition partner.”3 For this reason, the courts

should be extremely circumspect so as to avoid unduly interfering in decisions that

involve the good faith and honour of this country.4

1 Idziak v Canada (Minister of Justice), [1992] 3 SCR 631 at 659. See also United States of

America v Kwok, 2001 SCC 18 at para132, [2001] 1 SCR 532; and Canada (Justice) v Fisch-

bacher, 2009 SCC 46 at para36, [2009] 3 SCR 170.

2 Lake v Canada (Minister of Justice), 2008 SCC 23 at para38, [2008] 1 SCR 761, quoting

Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para39, [2002] 1

SCR 3; and Idziak, supra note1 at 658.

3 MM v United States of America, 2015 SCC 62 at para 25, [2015] 3 SCR 973; and Németh v

Canada (Justice), 2010 SCC 56 at para64, [2010] 3 SCR 281.

4 Lake, supra note2 at para31; Idziak, supra note1; and Canada v Schmidt, [1987] 1 SCR 500

at para49.