Understanding the Connections Between International Law and Canadian Criminal Law.

• Author: Davison, Charles

Criminal law usually addresses only incidents and issues arising within our borders, between persons in Canada. However, especially in today's global world, there are a number of ways in which Canada's position internationally--including treaties and agreements made with other countries and organizations--impacts Canadian criminal law. In this article, I will discuss:

* international treaties which might directly impact private individuals within (or with a connection to) Canada;

* our agreements on the world stage which define our obligations in the realm of international criminal law; and

* the impact of international conventions and treaties upon our own laws at home.

The Impact of International Treaties on Private Individuals

"Extradition" is probably the international aspect of criminal law that most people have heard of. Extradition is the process by which a fugitive from the courts of one nation may be removed from another and returned to face allegations in the first. In Canada, we have an Extradition Act which governs the extradition of persons to and from this country and various states listed in the legislation. The other states named in the Extradition Act are mostly other Commonwealth countries, as well as some of the international criminal tribunals such as the International Criminal Court. We have also entered into separate extradition treaties with a number of other governments.

In most situations, extradition of someone from Canada to another country is possible where the offence giving rise to the foreign request is relatively serious and would also be a crime if committed in Canada. The process involves both our federal government officials and our courts: the Minister of Justice commences the process and brings the matter before a judge, who considers whether the legal test for extradition is satisfied. If the court finds in favour of extradition, the case is sent back to the Minister for the final decision about whether Canada will surrender the individual. Among other considerations, the Minister takes into account the fairness of the judicial process in the other country and the nature of the penalty if the individual is found guilty. In particular, the Minister considers whether the death penalty might be imposed and whether torture or inhumane prison conditions might be involved. If such factors exist, the Minister can refuse to extradite, or can allow extradition only upon receiving assurances from the other country that the death penalty and torture will not be imposed and conditions of confinement...