Extradition and rendition

Extradition and rendition

DATE: May 20, 2008

SUBJECT: EXTRADITION AND RENDITION

PURPOSE:

This guideline establishes the mechanism for approval and the criteria to be applied in determining whether to seek extradition of a fugitive from a foreign jurisdiction to Alberta. This memorandum does not purport to outline the particulars required of each application. This can only be determined by reviewing the governing legislation and the provisions of the agreement between Canada and the surrendering State or entity.

BACKGROUND:

Extradition is the surrender by one State or entity at the request of another State or entity of a person who is wanted for prosecution for, or has been convicted of, a crime committed within the jurisdiction of the requesting State or entity.

Extradition in Canada is governed by the terms of the Extradition Act, 1999, c. C-18. The Parliamentary summary of the legislation describes it as “[creating] a comprehensive scheme, consistent with modern legal principles and recent international developments.” The federal Minister of Justice is responsible for the implementation of extradition agreements, the administration of the Act and responding to requests under the Act.

The Act provides for the surrender of persons to “extradition partners.” An extradition partner is defined by s. 2 of the Act to include a State or entity (such as the International Criminal Court) with which Canada has an extradition agreement. There are a number of different kinds of treaties, each with its own requirements as to the substance and form of the extradition application.[1]

The prevalence of “borderless crime,” has increased the importance and the use of extradition proceedings. As such, it is essential that uniform criteria be created for use in determining whether extradition should be sought in a particular case.

While each Crown Prosecution office will be responsible for preparing the documentation required to make an extradition application, the Special Prosecutions Branch will provide assistance as requested with respect to the criteria, procedures and documentation applicable to the determination of whether extradition is possible and in the preparation for the extradition application.

The responsible Crown Prosecution office may also wish to seek advice from the R.C.M.P and/or the International Assistance Group of the federal Department of Justice (“IAG”), the latter being the federal department that is responsible for processing all extradition cases. As described in the Federal Prosecution Service “Deskbook,” the role of the IAG is:

  1. to ensure that the request and its supporting documents comply with the treaty and the [Extradition Act] and satisfy all legal requirements;
  2. to seek additional information or evidence if necessary;
  3. to issue the required authorizations to the Attorney General on behalf of the Minister of Justice…, in an appropriate case;
  4. to transmit the relevant documents to the regional office of the Department of Justice whose counsel will seek, on behalf of the requesting partner, the issuance of a committal order and act in the related proceedings;
  5. to give the R.C.M.P. and Citizenship and Immigration Canada information concerning all extradition requests made to Canada.

PRELIMINARY ISSUES:

Location of the Fugitive

An extradition application cannot be made unless the police have confirmed a location where the fugitive can be arrested. While an exact address is not required, it is necessary that the fugitive can be arrested somewhere within a specific country which will determine the extradition issue.

Whether Extradition Possible from the Country where the Fugitive Located

It must be determined whether there is an extradition agreement or statute which will allow extradition and if not, whether the federal Department of Justice will make an inquiry as to whether the requested state would consider a request for the return of the fugitive. For some countries, extradition will simply not be possible.

If there is an extradition agreement or statute, it must then be determined whether the act committed by the fugitive which violates a law of Canada also constitutes an extraditable offence of the other country (i.e., the principle of “dual criminality” must be met).

GENERAL CRITERIA

In circumstances in which the prerequisites to extradition are met and the Crown prosecutor believes that an accused person should be extradited to Alberta, he or she shall seek the approval of his or her Chief Crown Prosecutor or Director. In determining whether extradition should be approved the Chief Crown Prosecutor or Director shall consider the following criteria:

  1. seriousness of the crime;
  2. the circumstances of the offender
  3. the availability of the evidence;
  4. the likelihood that the prisoner will be retained in custody if returned; and
  5. whether the costs to the public are such that the expenditure of public money to return the fugitive would be in the public interest.

If he or she agrees with the Crown prosecutor’s recommendation, the Chief Crown Prosecutor or Director shall seek the approval of the Assistant Deputy Minister (Criminal) to proceed with the extradition.

PROVISIONAL WARRANTS

If it is determined that an extradition application will be made, a provisional warrant application may be appropriate if there is an urgent need to arrest the fugitive immediately to prevent his or her flight from the other country. All supporting materials must be completed and transmitted to the IAG. That office makes all applications at the request of Alberta.

TIME LIMITS

The treaty or governing statute will require that the extradition materials be completed within a certain period of time after the arrest of a fugitive on a provisional warrant, usually 45 or 60 days. If no provisional warrant has been executed, the Crown prosecutor may prepare the extradition materials in due course and the fugitive will be arrested at the time of the application.

RETURN OF THE FUGITIVE

When the fugitive is ready for return, the IAG will contact the investigating officer and advise as to the time and procedure for travelling to the requested state (at the cost of the police department) and returning the fugitive in custody to the location in Alberta where the trial will be conducted. Following the return of the fugitive, a first appearance and bail hearing will occur, as the Alberta court will then have jurisdiction on the information or indictment.

EXTRADITION FROM CANADA TO OTHER COUNTRIES

The federal Department of Justice handles all applications by other countries for the return of fugitives from Canada to those other countries. Alberta has no role to play in extraditions from Canada to other countries. Sometimes a police department in another country will ask the police in Alberta to arrest a fugitive on the strength of a warrant issued in that country. It is important to advise the police that a person cannot be arrested in Canada for the purpose of extradition to another country without that other country first having made an application for extradition to Canada resulting in the issuance of an extradition warrant under the Extradition Act.


[1] For a list of the treaties, see: http://www.treaty-accord.gc.ca