It was recently reported that former fashion mogul Peter Nygard has been charged with sexual assault and forcible confinement by Toronto police. Nygard remains in custody and is awaiting extradition to the United States. In this blog post we review the law of extradition in Canada, the different type of extradition orders that exist, and explain ways in which those order may be challenged.
What is Extradition?
Extradition is a legal process whereby an individual accused of committing a crime in another country is deported to that country to be tried. For certain criminal offenses, in certain countries, an accused individual may be extradited from Canada to a foreign jurisdiction or may be extradited into Canada from a foreign jurisdiction.
Extradition in Canada is conducted in accordance with numerous legal instruments, including the Extradition Act, the Canadian Charter of Rights and Freedoms
and various international extradition treaties between countries in which the countries agree to extradite individuals on a reciprocal basis. Where two countries do not have an extradition treaty in place (for example, there is no extradition treaty between Canada and Brazil), the two nations in question can still agree to a “specific agreement” to extradite a certain individual. Canada will only extradite an individual if “double criminality” is established, meaning the alleged criminal activity must be considered an offence in both the country requesting expedition and Canada. For example, if a foreign jurisdiction outlaws homosexuality and requests extradition of an individual accused of contravening that law, Canada will deny the extradition request. In Canada, no such offence exists and therefore, double criminality cannot be established.
In Canadian extradition proceedings, two possible orders can be made against an individual, both of which can be challenged.
A Committal Order is a judge-enforced order in which an individual who is to be extradited or surrendered to another country is detained in Canada. In determining whether to grant a committal order, the judge will consider and assess the risks associated with releasing the accused individual. If the accused individual is likely to commit offences in Canada and is likely to flee the jurisdiction, a committal order may be granted. Committal orders can be challenged through bail hearings, and the individual has the right to appeal a decision denying their release on bail. To successfully challenge a committal order, the accused must demonstrate they do not present either risk in question.
A Surrender Order is made by the Minister of Justice for the purpose of surrendering an individual from Canada to a foreign jurisdiction. Surrender orders are made at the Ministerial level (rather than by a judge). A Minister may grant a surrender order if the following threshold test is met:
- The Minister has to be satisfied the extradition represents a reasonable limit to the accused person’s rights under s. 6(1) of the Charter, which grants “every citizen of Canada has the right to enter, remain in and leave Canada.”
- The Minister is satisfied that extradition is more appropriate than domestic prosecution. According to leading Supreme Court case of United States v. Cotroni the Minister is required to consider two tests, whether extraditing would “shock the conscience” of Canadians or be “unjust or oppressive”.
In a Supreme Court of Canada case that dealt with extradition, Sriskandarajah v. United States of America, the court outlined specific criteria the Minster should consider in determining whether to grant a surrender order. These include:
- Where was the impact of the offence felt or likely to have been felt?
- Which jurisdiction has the greater interest in prosecuting the offence?
- Which nation’s police force played a central role in the development of the case?
- Which jurisdiction has laid charges?
- Which jurisdiction has the most comprehensive case?
- Which jurisdiction is ready to proceed to trial?
- Where is the evidence located?
- Is the evidence mobile?
- How many accused are involved and can they be gathered together in one place for trial?
- In what jurisdiction were most of the acts in furtherance of the crime committed?
- What is the nationality and residence of the accused?
- What is the severity of the sentence that the accused is likely to receive in each jurisdiction?
A surrender order may be challenged via “judicial review” which effectively means a judge can review it.
Challenging Extradition Orders
Challenging an extradition order successfully is not easy, but it is possible.
Recently, in Sheck v. Canada (Minister of Justice), a surrender order was successfully challenged based on the severity of the sentences that the accused was likely to receive in each jurisdiction. The accused, Glenn Sheck, was an Indigenous man accused of money-laundering several million dollars of proceeds from drug trafficking. If found guilty, the accused would be liable to a 19 to 27 year prison term in the United States. In Canada, the maximum period of incarceration was just 10 years. The Court ruled that Minister had failed to consider the impact of separating Sheck from his children, “in light of their shared Indigenous heritage and the legacy of residential schools, and in light of the much longer separation that would occur if he was convicted and sentenced in the U.S. versus in Canada.”
Contact the Criminal Lawyers at Hicks Adams LLP in Toronto for a Strong Defence Against Extradition
Criminal lawyers are your best defence against extradition. At Hicks Adams LLP, our knowledge of criminal law, evidentiary issues and the Charter of Rights and Freedoms prove invaluable in defending against extradition orders. We defend individuals in all types of criminal law matters, including bail hearings and extradition matters. Call us at 416-975-1700 or contact us online to schedule a confidential consultation with one of your experienced criminal defence lawyers.