Extradition and human rights.
Extradition is generally regarded as different than deportation. While both may result in the removal of a person from a country, deportation is an immigration process. Extradition involves the surrender by one country of a person who is alleged to have engaged in criminal conduct in another country. While deportation generally applies to non-citizens, both Canadian citizens and non-citizens can be extradited. The rights of a person subject to extradition are governed by the Extradition Treaty (in this case, the Extradition Treaty Between Canada and the United States of America, Can. T.S. 1976, No. 3), the Extradition Act (S.C. 1999, c. 18), the Charter, international law and international relations. Canada has signed and ratified a number of international treaties that are relevant to extradition. For example, Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [1987 Can. T.S. Res. No 36] provides that a State must not extradite a person to another State where there are substantial grounds the person would be subjected to torture.
There are two main phases to extradition: first, a judge of the Court of Queen's Bench or Supreme Court will evaluate the materials submitted by the foreign state and then will decide whether the person should be committed for surrender to the requesting country; second, the Minister of Justice decides whether the person should actually be surrendered. Canadian case law indicates that Charter issues may be raised at both stages (Robert J. Currie, "Charter Without Borders? The Supreme Court of Canada, Transnational Crime and Constitutional Rights and Freedoms" (2004) 27 Dalhousie L.J. 235 at 246).
In general, there are three requirements for extradition:
* the conduct of the person sought to be extradited must constitute a crime in the requesting country;
* the conduct of the person would constitute a crime if it had been committed in Canada; and
* the crime must be listed in the extradition treaty between the two countries.
Before 1999, there was a fourth requirement--the requesting country had to have jurisdiction over the offence charged before extradition was allowed. Now, extradition can occur even if there is some question as to whether the criminal behaviour occurred in the geographical territory of the requesting country. Some commentators have noted that this provision may attract a Charter challenge for being ambiguous (Gary Botting, Canadian Extradition Law Butterworths, 2005).
Before 1999, people relied on Charters. 7 to argue that extradition should be disallowed in situations that "shocked the conscience of the court". Circumstances that possibly "shock the conscience" of the court so as to prevent extradition, include facing stoning to death for adultery or cutting off the hands of a thief. In some cases, the "youth, insanity, mental retardation or pregnancy" of the person might be relevant factors considered by the court (United States v. Burns,  1 S.C.R. 283 at para. 67). In Burns, the Supreme Court of Canada made it clear that surrendering people to the US to face the death penalty without assurances they would not be executed violated the Charter s. 7 right to life, liberty and security of the person, and this violation could not be saved under Charter s. 1. Thus, in all but exceptional cases, extradition had to be made conditional upon the Minister of Justice asking for and obtaining assurances that the accused would not be executed. In 1999, Parliament passed subsection 44 (2) of the Extradition Act, which allows the Minister to decide not to extradite in cases involving the death penalty. Since Burns, the Minister has been obtaining assurances that accused persons would not be executed (Botting).
Since 1999, when subsection 44(1) was added to the Extradition Act, in addition to determining whether surrender would violate the Charter, courts now also look at whether surrender would be "unjust or oppressive having regard to all the circumstances". Factors which may be considered by the Minister include "the criminal justice system and the conduct of the proceedings in the requesting country before and after the request for extradition, the potential punishment facing the individual if surrendered, humanitarian issues relating to the personal circumstances of the individual, the timeliness and manner of prosecuting the extradition proceedings in Canada, and Canada's treaty obligations and its status as a responsible member of the international community." (United States v. Bonamie, (2001), 90 C.R.R. (2d) 269 (Alta. C.A.).
Cases examining whether a surrender would be unjust or oppressive have had mixed results. For example, the Ontario Court of Appeal found that surrender would be unjust or oppressive in a case involving the request for surrender by the Philippines, where the person's co-accused (including his father and his lawyer) had had their trial delayed for ten years while they remained incarcerated. The key factors were the likelihood of the person experiencing "serious violations of the fundamental right to trial within a reasonable time and the fundamental right not to be held indefinitely in custody without bail" (Canada (Minister of Justice) v. Pacificador (2002).
On the other hand, in a case similar to that of Emery, a Canadian citizen and a landed immigrant subject to an extradition request provided evidence to the court that if convicted for trafficking in cocaine in the United States, they could face life imprisonment without possibility of parole. The Ontario Court of Appeal held that although such a sentence would rarely be imposed in Canada, it is available here, and therefore did not sufficiently violate the Canadian sense of fundamental justice so as to violate the Charter (United States v. Latty, (2004). The Supreme Court of Canada granted leave to appeal this decision in 2004.
Emery's case may have to await the Supreme Court's decision in Larry before the issue of whether his extradition to a country with stricter penalties can be determined. These cases illustrate the way that Canadian courts will address Charter arguments if there is an international aspect to the case. While the Charter applies to the process, the larger issues surrounding extradition are influenced by the recent emphasis on global cooperation to resolve transnational crimes.
Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta. Thanks to Brian Seaman for suggesting this topic.