The extradition process is long and complicated. In this article, I?ll try to explain the basic framework and the key documents governing this area of law. I will also talk about some legal cases in order to explain the various factors used, and tests applied, by Canadian courts.
As this article will make clear, the BC3 face a long and expensive legal battle against the combined forces of the US and Canadian governments. Your support will be crucial to victory, so please check out all the ways you can help this struggle for freedom and justice.
The Treaty and the New Extradition Act ? Power to the Minister of Justice
The extradition process is governed by two principal documents. The first is the Canada ? US Extradition Treaty (the ?Treaty?). The second is the Canada Extradition Act (the ?Act?). This article will discuss both the Treaty and Act, though particular attention will be paid to the provisions of the Act. One thing to keep in mind is that when the Treaty and Act conflict, the rules of the Treaty prevail (curiously, this is only because the Act says so).
The Act is relatively new legislation. It was enacted in 1999 and, in doing so, Parliament made significant changes to the extradition process. These changes have, in part, been criticized because ?the role of the extradition judge in considering evidence sufficient to extradite was much reduced, and the role of the Minister of Justice was much expanded by the legislation.?
The Minister of Justice is, of course, a political official subject to political pressures. These pressures come from within the country and, particularly in the case of extradition requests from the United States, from external sources. Given this, it is not difficult to understand why those sought for extradition would prefer to have important issues decided by an unbiased tribunal. Judges, of course, typically take on this role in our society.
The Four Phases of Extradition
The current extradition process can roughly be categorized into four distinct phases. These are the pre-hearing, judicial, political and appellate phases. They occur, typically, in the order listed. At this point, the case against Marc Emery, Michelle Rainey and Greg Williams is in the judicial phase.
Extradition cases begin with a request from the country seeking to extradite. This country is called the requesting state. These requests are processed by an arm of the Justice Ministry known as the International Assistance Group (?IAG?). The IAG specializes in extradition law and handling extradition requests.
The Act gives the Justice Minister discretion to begin extradition proceedings by issuing an Authority to Proceed (?ATP?):
15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.
This function has, at present, been delegated by the Justice Minster to the IAG. This means that the Justice Minister does not personally sign off on an ATP, an IAG lawyer does that instead.
Basically, the ATP can be issued if the requesting states jails people for more than two years for the offence and the conduct underlying the offence ?would have constituted an offence that is punishable in Canada.”
The Judicial Phase
Once the ATP is issued, the case goes to the judicial phase. The main aspect of the judicial phase is the committal hearing. This hearing takes place before a superior court judge. The judge?s role, once rather expansive, is now limited by the Act. The committal hearing is not like a trial.
Instead, the Act requires the judge to admit the ?record of the case? into evidence. This record can be a summary of the evidence by a prosecutor ? no witnesses need to be called, no cross-examination conducted. The purpose is to determine whether the judge should commit the target for surrender for extradition (we?ll talk about surrender later). The judge does so ?where there is evidence admissible under the Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed.?
The Political Phase
Once committal is ordered, the case moves to the political phase. The key player is, again, the Justice Minster of Canada. The Minister is called upon to decide whether to surrender the target to the requesting state. This is the decision that, barring successful appeal, actually results in the extradition.
The Act gives the Minister a tremendous amount of discretion. In fact, the Minister is not required to surrender anyone. Or the Minister can seek assurances from the requesting state that the target, for example, will not be subject to the death penalty (or anything else the Minister wants assurances about). The target is also entitled to make submissions on any ground relevant to the Minister?s decision.
Those grounds are many. The Act requires the Minster to deny surrender if satisfied that doing so ?would be unjust or oppressive having regard to all the relevant circumstances.? Surrender must be refused if the purpose behind the extradition request is to ?prosecut[e]or punis[h]the person by reason of their?political opinion.? Along those lines, surrender must also be denied if ?the conduct in respect of which extradition is sought is a political offence or an offence of a political character.?
Appeal ? The Last Stop Before Extradition
If the Minster decides to order surrender, the process is almost complete. The final stage takes place in the appellate courts ? the BC Court of Appeal and the Supreme Court of Canada. The target is entitled to go to the appeal courts on two issues. First, the BC3 could appeal the committal decision made by the judge in the judicial phase. Second, the BC3 could seek judicial review of the Minister?s decision to surrender. These appeals take place in the BC Court of Appeal and, ultimately, in the Supreme Court of Canada.
The BC3 Needs You
As you can see, the extradition process is long and complicated. The BC3 are up against the full weight of two countries and need as much help as possible in their fight. There are many ways to help. First and foremost, you can provide some much-needed financial help by donating to the legal defense fund, joining the BCMP, buying products from the BCMP Bookstore or subscribing to this magazine.
In addition to helping with the defense costs, you can get active! Write your local political representative. Write the Justice Minister of Canada and tell him you oppose extradition and that you think it is ?unjust and oppressive and shocks your conscience.? Print out a petition (available from [email protected]) and get 50 signatures, then send it to the BCMP ? we are collecting a huge box of signature to deliver to Parliament. Together we will win this fight for freedom and justice!
Send mail (no postage needed within Canada) to the Justice Minister of Canada:
The Hon. Minister of Justice Vic Toews
House of Commons