Reform Canada’s Extradition Laws

In October 2008, Hassan Diab, a Canadian citizen, was arrested by the RCMP at the request of French authorities. Diab was extradited to France, where he would stand trial for his alleged involvement in a synagogue bombing that killed four people in France in 1980. Incredibly, the case against him in France collapsed after Diab had already spent three years in French prison. He was finally released in January 2018, after two judges in France dismissed the charges against him due to a lack of evidence. Furthermore, Canada’s extradition laws do not provide any safeguards against political interference. It is important that these laws be reformed so as to block any extradition requests that are politically motivated, and to prevent states from interfering in extradition hearings. Canada must reform its extradition law, given the flaws evident in the Hassan Diab and other cases. Canada should be able to cooperate with partner countries to combat transborder crime without infringing on the rights of Canadians. Evidence provided by foreign states should no longer be treated as “presumptively reliable.”

Overview

Diab’s case clearly demonstrates the Canadian extradition system is broken and in need of review. The threshold for extradition is simply too low, allowing for Canadian citizens to be extradited to foreign nations on evidence that is often questionable at best. This is mostly because the law requires Canadian courts to treat summaries of evidence provided by foreign nations as “presumptively reliable,” even if the evidence has not been tested or even disclosed to the court. [iii] In other words, under Canadian law, the judge’s role in an extradition hearing is not to determine innocence or guilt, but rather to determine whether there is enough evidence to build a prime facie case against the suspect. [iv] This evidence, however, is only tested at trial once the suspect has been extradited. This presumption of reliability is reckless, as it puts a dangerous amount of trust and confidence into a foreign state’s justice system.

Furthermore, Canada’s extradition laws do not provide any safeguards against political interference. It is important that these laws be reformed so as to block any extradition requests that are politically motivated, and to prevent states from interfering in extradition hearings. For example, it was officials in Canada’s Department of Justice who provided France with the “smoking gun” evidence that secured Hassan Diab’s extradition.[v] This is deplorable—Canada should not be interfering in order to ensure the extradition of its own citizens. Yet another example can be found in the case of Huawei executive Meng Wanzhou, who is facing extradition to the US. President Trump has openly stated that Meng’s case will help him secure a trade deal with China, making it clear that her extradition is politically motivated.[vi]

Canada also needs to carefully review the countries with which it has an extradition agreement. Some countries that Canada extradites to do not return the favor. For example, Canada allows extradition to Germany, France, and Switzerland; yet none of these countries make the same commitment to Canada.[vii] Such arrangements should be questioned. Canada also has extradition agreements with some countries whose human rights record is highly suspect, including Israel, El Salvador, Thailand, and the Philippines. Put simply, Canada should not be extraditing its citizens to states that repeatedly fail to respect human rights of those under its authority.

Since the Extradition Act was first introduced in 1999, over 1500 extradition requests have been made—and only five of these have been rejected. This arrest-to-extradition ratio reflects the way in which the Act is heavily stacked against those being sought for extradition. The law, as it stands, offers little protection to Canadian citizens when foreign countries come knocking. Canada has a duty to cooperate with foreign states on extradition; however, first and foremost, it has a duty to protect its citizens and residents. The Extradition Act must be reformed in order to ensure that extradition requests are dealt with in a manner that is consistent with the principles of fundamental justice.

Questions for Federal Candidates

Hassan Diab’s case underscores the immense need to reform Canada’s extradition laws—especially in regard to judicial authority in extradition hearings. Do you believe that judges should be given more decisional power in these hearings—such as the ability to test evidence provided by foreign states—before choosing to extradite citizens?
Since Hassan Diab’s return to Canada, numerous unions and human rights groups have called for a public inquiry into his extradition. Given the degree of public interest, do you believe it is important for there to be an independent inquiry into this case?
The political leadership of countries can bring about important changes in the way a country manages issues of law and order, e.g. Hong Kong, the United States, etc. Would you support a periodic review of Canada’s extradition treaties?
Given the degree of trust that must be afforded to foreign legal systems in extradition cases, do you believe that Canada should enter into extradition agreements with countries that have poor human rights records and/or little judicial independence?

If elected:

Will you work within caucus to garner support for a thorough, independent inquiry into the Hassan Diab case?
Will you work within caucus to garner support for an extensive review and reform of Canada’s Extradition Act?
Will you work within caucus to bring about regular review of Canada’s extradition treaties?

Supporting Points

International Law. Under international law, states are not obligated to surrender an alleged criminal to a foreign state. This is due to the fact that one principle of state sovereignty is that every state has legal sovereignty over the people within its borders.[viii] By enacting laws or concluding treaties, states may determine the conditions under which they will waive that legal sovereignty and entertain or deny extradition requests.[ix] For example, in order to become member states of the ICC, states must become party to the Rome Statute. In signing onto this multilateral treaty, states agree to extradite individuals sought by the ICC for genocide, crimes against humanity, and war crimes.[x]
The UN Position. In 1990, the UN General Assembly adopted Resolution 45/116 without vote. This resolution recognized that the establishment of bilateral and multilateral arrangements for extradition would greatly contribute to the development of more effective international cooperation for the control of crime. Included in this resolution was a Model Treaty on Extradition, which states could use as a reference when negotiating and concluding their own bilateral extradition agreements.[xi]
The Extradition Process in Canada. Extradition in Canada is conducted in conformity with the Extradition Act and related bilateral treaties. Canada currently has bilateral treaties with around 50 different states, although approximately 90% of Canadian extradition cases involve the surrender of citizens to the US.[xii] The Extradition Act, introduced in 1999, allows Canada to extradite individuals at the request of a foreign state that is an extradition partner under the Act. There are three phases to the extradition process in Canada. First, the foreign country must provide Canada with a formal extradition request and supporting documentation. Upon receiving this request, Canadian authorities may arrest the individual.[xiii] The Department of Justice must then evaluate the extradition request in order to determine whether the conduct for which extradition is sought is considered criminal in both Canada and the requesting state—this is known as “dual criminality.” [xiv] Once dual criminality is established, the Department of Justice will issue an Authority to Proceed. Second, an extradition hearing is held in the superior court of the province. Here, the presiding judge must determine if the evidence provided by the extradition partner is sufficient. [xv] If so, the final decision on extradition is given to the Minister of Justice. In this last step, the Minister is required to consider the requirements of the Extradition Act in order to determine whether to surrender or release the individual. [xvi] The Minister is required to refuse surrender if doing so would be unjust or oppressive, or if it would infringe upon an individual’s right to fundamental justice, as protected under Section 7 of the Charter. [xvii] The individual facing extradition then has the right to appeal the decision of the extradition judge or apply for judicial review of the Minister’s decision in the provincial Court of Appeal.
Calls for Reform to Canada’s Extradition Law. There are numerous aspects of the law that ought to be changed in order to ensure that the government adequately balances its obligation to treaty partners with its obligation to protect the Charter rights of its citizens. First, many legal experts have decried the lack of decisional power held by judges in extradition hearings. In 2006, the Supreme Court ruled on a case known as ‘Ferras,’ calling on provincial courts to stop rubber-stamping extradition requests, and instead start properly weighing evidence in extradition hearings.[xviii] Despite this ruling, the system of “rubber stamping and buck passing” has continued. This is largely due to the limitations placed on judges presiding over extradition hearings. For one, the judge’s role is not to determine guilt or innocence, but rather to determine that the evidence is not “manifestly unreliable.” [xix] In other words, the judge does not conclude whether the accused is guilty or not; rather, the judge only asks whether the evidence, if believed, could reasonably support an inference of guilt.[xx] It is rare that evidence would be deemed “unreliable,” because the law requires Canadian courts to treat summaries of evidence provided by foreign states as “presumptively reliable,” even if this evidence has not been tested or even disclosed to Canada or the accused.[xxi] In fact, the evidence offered by the foreign country does not even need to meet Canadian standards. Evidently, the threshold for evidence to be deemed unreliable is simply too high. [xxii] This makes it difficult for judges to reject extradition requests, no matter how questionable the evidence presented may be.
Actions Taken by Canadian Allies. Sweden’s extradition system is very similar to that of Canada, however, it includes an actual investigation of the case prior to extradition. Requests for extradition are forwarded to the Office of the Prosecutor-General, where a preliminary investigation is conducted. If the accused opposes extradition, it is up to the Supreme Court to examine whether extradition can be legally granted under the existing legal conditions. The Supreme Court’s opinion is then delivered to the Government for use in its examination of the case.[xxiii] The Swedish system therefore requires a much broader examination of the evidence prior to a decision on extradition being made.

Recommendations for Canada

Canada must carry out a thorough and independent inquiry into Hassan Diab’s extradition. The government should engage in conversation with groups like the British Columbia Civil Liberties Association (BCCLA) and Amnesty International—both of which have worked closely with Diab in order to develop proposals for reform of Canada’s extradition laws.
Canada must reform its extradition law, given the flaws evident in the Hassan Diab and other cases. Canada should be able to cooperate with partner countries to combat transborder crime without infringing on the rights of Canadians. Evidence provided by foreign states should no longer be treated as “presumptively reliable.” Rather, judges should be given the authority to test the evidence provided and determine whether it is strong enough to lead to a conviction. Put simply: if the case is not strong enough to go to trial in Canada, it should not be tried elsewhere.

[i] Justice for Hassan Diab. (n.d.). Background. Retrieved from http://www.justiceforhassandiab.org/about

[ii] Justice for Hassan Diab. (n.d.). Background. Retrieved from http://www.justiceforhassandiab.org/about

[iii] Paterson, J. (December 3, 2018). “A decade’s ordeal: The case of Dr. Hassan Diab and the need for reform in Canada’s extradition law.” British Columbia Civil Liberties Association. Retrieved from https://bccla.org/2018/12/a-decades-ordeal-the-case-of-dr-hassan-diab-and-the-need-for-reform-in-canadas-extradition-law/

[iv] Paterson, J. (December 3, 2018). “A decade’s ordeal: The case of Dr. Hassan Diab and the need for reform in Canada’s extradition law.” British Columbia Civil Liberties Association. Retrieved from https://bccla.org/2018/12/a-decades-ordeal-the-case-of-dr-hassan-diab-and-the-need-for-reform-in-canadas-extradition-law/

[v] Cochrane, D., & Laventure, L. (May 1, 2018). “Canada helped France dig up evidence to extradite Ottawa man later freed on terror charges.” CBC News.

[vi] Woo, A. (March 6, 2019). “Huawei executive Meng Wanzhou will argue abuse of process, political interference: Defense.” The Globe and Mail. Retrieved from https://www.theglobeandmail.com/canada/article-huawei-executive-meng-wanzhou-will-argue-abuse-of-process-political/

[vii] Dyer, E. (January 18, 2018). “Canada to reconsider Extradition Act in wake of Diab case.” CBC News. Retrieved from https://www.cbc.ca/news/politics/extradition-act-review-diab-1.4493187

[viii] Andreopoulos, G. (n.d.) “Extradition: Law.” Encyclopaedia Britannica. Retrieved from https://www.britannica.com/topic/extradition

[ix] Andreopoulos, G. (n.d.) “Extradition: Law.” Encyclopaedia Britannica. Retrieved from https://www.britannica.com/topic/extradition

[x] International Criminal Court. (1998). Rome Statute of the International Criminal Court. Retrieved from https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf

[xi] UN General Assembly. (14 December, 1990). A/RES/45/116: Model Treaty on Extradition. Retrieved from https://www.un.org/documents/ga/res/45/a45r116.htm

[xii] Cobb, C. (November 15, 2014). “Canada’s extradition law: A legal conundrum.” Ottawa Citizen. Retrieved from https://ottawacitizen.com/news/local-news/canadas-extradition-law-a-legal-condundrum

[xiii] Government of Canada. (n.d.) “Fact sheet: General overview of the Canadian extradition process.” Department of Justice. Retrieved from https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html

[xiv] Government of Canada. (n.d.) “Fact sheet: General overview of the Canadian extradition process.” Department of Justice. Retrieved from https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html

[xv] Government of Canada. (n.d.) “Fact sheet: General overview of the Canadian extradition process.” Department of Justice. Retrieved from https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html

[xvi] Government of Canada. (n.d.) “Fact sheet: General overview of the Canadian extradition process.” Department of Justice. Retrieved from https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html

[xvii] Government of Canada. (n.d.) “Fact sheet: General overview of the Canadian extradition process.” Department of Justice. Retrieved from https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html

[xviii] Cobb, C. (November 15, 2014). “Canada’s extradition law: A legal conundrum.” Ottawa Citizen. Retrieved from https://ottawacitizen.com/news/local-news/canadas-extradition-law-a-legal-condundrum

[xix] Gagné, S., & Savard, C. (2019). “One year after Diab’s repatriation: Canada’s extradition legal framework still threatening citizens.” Université Laval. Retrieved from http://www.justiceinternationale-chaire.ulaval.ca/fr/blogue/one-year-after-diabs-repatriation

[xx] Gagné, S., & Savard, C. (2019). “One year after Diab’s repatriation: Canada’s extradition legal framework still threatening citizens.” Université Laval. Retrieved from http://www.justiceinternationale-chaire.ulaval.ca/fr/blogue/one-year-after-diabs-repatriation

[xxi] Gagné, S., & Savard, C. (2019). “One year after Diab’s repatriation: Canada’s extradition legal framework still threatening citizens.” Université Laval. Retrieved from http://www.justiceinternationale-chaire.ulaval.ca/fr/blogue/one-year-after-diabs-repatriation

[xxii] Gagné, S., & Savard, C. (2019). “One year after Diab’s repatriation: Canada’s extradition legal framework still threatening citizens.” Université Laval. Retrieved from http://www.justiceinternationale-chaire.ulaval.ca/fr/blogue/one-year-after-diabs-repatriation

[xxiii] Government Offices of Sweden. (n.d.) Extradition for criminal offences. Retrieved from https://www.government.se/government-of-sweden/ministry-of-justice/international-judicial-co-operation/extradition-for-criminal-offences/

Do you like this post?