What Is Extradition?

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 1-43

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What Is

Extradition?

1

I. The Extradition Process: A Creation of Treaty and Statute ......... 3

II. Basic Principles of Extradition ............................... 5

A. Reciprocity, Comity, and Respect ....................... 5

B. Double Criminality .................................. 6

C. Principle of Specialty ................................. 6

III. Basic Overview of the Extradition Process ..................... 7

A. The Authority to Proceed ............................. 7

B. The Committal Phase ................................ 8

C. The Surrender Phase ................................. 8

IV. Conclusion .............................................. 14

Appendix 1.1 Canada’s Bilateral Extradition Treaties ........... 15

Appendix 1.2 Treaties: Extradictable Conduct, Time to File

Request, and Extradition of Nationals ........... 17

Appendix 1.3 Authority to Proceed ......................... 40

Appendix 1.4 Sample Order of Committal ................... 41

Appendix 1.5 Sample Order of Surrender .................... 42

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

Extradition is one of many types of international assistance that Canada provides to

combat international crime. Extradition law “starts with a basic principle: while a

person is in a country, he or she is subject to that country’s criminal law and should

expect to be answerable to it.”1

The importance of extradition was recognized by the Supreme Court of Canada in

1989 in Cotroni, when the court held that

[t]he investigation, prosecution and suppression of crime for the protection of the citizen

and the maintenance of peace and public order is an important goal of all organized

societies.2

The court recognized that these goals cannot be achieved within the confines of

national boundaries. Cooperation between countries is essential to ensure safety and

protection for all of society.

Almost 30 years later, the world is even smaller, making international cooperation

even more important. One can sit in the comfort of one’s own bedroom and transfer

money obtained by fraud, or distribute child pornography. The movement of people

across borders is faster and easier than ever, making it easier for criminals to evade

justice. As noted by HindsJ of the British Columbia Court of Appeal in Waddel:

It is trite to point out that the world is becoming smaller as a result of increased access

to speedier forms of transport. No longer is escape dicult. The growing cosmopolitan-

ism of the new urban centres has made it easier for a person to remain anonymous.

Extradition is then one element in those structures designed to stop fugitives from using

borders as a means of escaping justice.3

Cooperation to combat international crime occurs in many dierent ways. Police

informally share information. For example, police may share information obtained

from wiretaps to help in cases involving the importation of drugs between countries.4

Police may also share information obtained during the course of an investigation that

reveals information about a crime occurring in another jurisdiction, such as in child

pornography cases.5 There is also formal assistance between countries that takes place

pursuant to mutual legal assistance treaties. The Mutual Legal Assistance in Criminal

1 MM v United States of America, 2015 SCC 62 at para 14, [2015] 3 SCR 973.

2 United States of America v Cotroni; United States of America v ElZein, [1989] 1 SCR 1469 at

1485. See also Sriskandarajah v United States of America, 2012 SCC 70 at para10, [2012] 3

SCR 609; and MM, supra note1 at para15.

3 United States of America v Waddell, 1993 CanLII 1165 (BCCA). See also Cotroni, supra note2.

4 Wakeling v United States of America, 2014 SCC 72, [2014] 3 SCR 549.

5 United States v Lane, 2014 ONCA 506, [2014] OJ No 3126 (QL).

Chapter 1 What Is Extradition? 

Matters Act6 allows Canada to collect fines,7 execute search warrants,8 and gather and

provide evidence to foreign states pursuant to judicial authorization, such as Internet

records, telephone records, and the taking of statements from witnesses that reside in

Canada.9

Extradition is dierent from other forms of international cooperation in that it dir-

ectly involves the liberty of an individual. The extradition process serves two important

objectives that have to be balanced. The first objective is the prompt compliance with

Canada’s international obligations to our extradition partners. The second objective

is the protection of the rights of the person sought.10 To achieve both of these objectives,

the extradition process contains many checks and balances to ensure that the extradition

process is expeditious, but also that Canada does not surrender a person to a foreign

state without sucient evidence or to a country that will not treat the person fairly.

I. The Extradition Process: A Creation of

Treaty and Statute

Canada’s obligation to extradite a person arises out of Canada’s treaty obligations.

LaForestJ, speaking for the majority in McVey, explained that a treaty is

an agreement between two sovereign states whereby each agrees to surrender on request

persons alleged to have committed crimes in the state requesting the surrender. To this

general obligation, states frequently attach terms and conditions. When a request is made,

the political authorities in the requested state will examine the material to see that the

request complies with these terms and conditions. The treaties also make provision for

the requesting state to supply certain material whereby the requested state can deter-

mine the validity of the request and its compliance with the terms and conditions of the

treaty (see Art.9 of the Treaty here (Can. T.S.1976 No.3)), and it is reasonable that

these are the materials to be looked at in determining the issue. In essence, the treaty

obligations are of a political character to be dealt with in the absence of statute by the

political authorities.11

As of 2014, Canada was a signatory to 51 bilateral extradition treaties. A full list of

the bilateral treaties is set out in Appendix 1.1 to this chapter. The bilateral extradition

treaties to which Canada is a party can also be found online at <http://www.treaty

-accord.gc.ca/search-recherche.aspx>. It is important to know that there may be

6 Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c30 (4th Supp) [MLACMA].

7 See MLACMA, s9.

8 See MLACMA, ss11-16.

9 See MLACMA, ss17-20.

10 MM, supra note 1 at para 1.

11 McVey (Re); McVey v United States of America, [1992] 3 SCR 475 at 518-19.