Department of Justice Canada / Ministère de la Justice CanadaGovernment of Canada
Skip first menu Skip all menus
   
Français Contact us Help Search Canada Site
Justice Home Site Map Programs and Initiatives Proactive Disclosure Laws
News RoomNews RoomNews Room
Press Releases
 Fact Sheets
Media Contacts
Speeches
Relevant Links
Search
 Archives Home Page

Department of Justice 7

EXTRADITION REFORM

ISSUE EXISTING LEGISLATION PROPOSED LEGISLATION IMPACT
Old and multiple procedures to conduct extradition in Canada The Fugitive Offenders Act (1882) provides a scheme to return fugitives to and from Canada with Commonwealth States. The Extradition Act (1877) governs extradition to and from all other countries with which Canada has an extradition treaty. The procedure differs depending on which act is in play. In addition, neither acts allow for extradition under modern multilateral conventions nor do they permit surrender to an international criminal court or tribunal, or to a non-treaty state. The new Extradition Act will represent a comprehensive overhaul of the two existing acts, merging them into one piece of legislation governing extradition and updating the framework to current international standards and practices.

The new Extradition Act will allow extradition to states, territories and international criminal courts and tribunals. By amending the Mutual Legal Assistance Act, it will also allow Canada to provide mutual legal assistance to such court or tribunals.

 The uniformity provided by a single act will simplify the extradition process in Canada.

The new extradition scheme will allow Canada to meet its international obligations.
Dual criminality An act committed within the jurisdiction of the requesting state must be considered a crime both in Canada, if it had been committed here, and in that state. It must also be listed in a schedule to the Act for the extradition of a fugitive to take place. However, using a list of extraditable offences is problematic as definitions of offences vary from country to country and requires constant updating. The list approach is no longer used in modern extradition treaties and legislation. The new Extradition Act retains the concept of dual criminality. However, it removes the "list approach" of offences and replaces it with a legal test that requires that the conduct constitute an offence in both countries punishable by a prescribed period of incarceration. In most cases, under the proposed legislation, had the offence been committed in Canada, it would have to carry a penalty of at least two years of imprisonment to qualify for extradition. Broadens the grounds for extradition and allows for the consideration of new offences (for example, computer crimes or transnational organized crime) without having to amend legislation.

 

ISSUE EXISTING LEGISLATION PROPOSED LEGISLATION IMPACT
Evidentiary requirements The requesting state must provide evidence that meets the legal standard of a prima facie test and that is admissible under Canadian rules of evidence. The latter requirement poses serious difficulties to many states in view of the differences in the process used to gather evidence in some of these states and the forms in which the evidence is introduced in foreign courts. For example, first person affidavits are unknown in civil legal systems. The new Extradition Act retains the legal standard of the prima facie case test. However, it modifies the requirements for the forms of evidence that can be used to meet the test by allowing the admission of evidence, including hearsay, that is relevant to the matters within the jurisdiction of the extradition judge. This compromise is in line with the Commonwealth scheme for the rendition of fugitive offenders.

The new Act will provide for the use of a "record of the case" which accomodates different forms of evidence. The foreign state will have to provide certain assurances in respect to the contents of the record of the case by way of certification.

Evidence gathered in Canada will still be subject to Canadian rules of evidence.

 Makes Canadian extradition process more accessible to foreign states or entities rather than discouraging them to seek extradition of a fugitive in Canada.

Brings Canadian extradition procedures and practices closer to that of other countries.

Prevents fugitives from considering Canada as a safe haven to avoid facing the justice system in the state in which they committed a crime.
International commitments Canada is a party to 49 bilateral extradition treaties with foreign states and eight multilateral conventions which contain "extradite or prosecute" provisions. Current legislation makes it difficult for Canada to comply with those international obligations. The new Extradition Act will provide a modern framework to meet existing treaty provisions, provide the basis for the negotiation of new treaties and allow for the implementation of multilateral obligations. It will also be flexible enough to provide for extradition without treaty on the basis of designation or a case specific agreement. Enhances Canada's ability to respond to its international obligations, including international criminal court or tribunals.

Deals more effectively with transnational crimes.

 

ISSUE EXISTING LEGISLATION PROPOSED LEGISLATION IMPACT
Temporary surrender Existing legislation does not allow for the temporary surrender of a prisoner in Canada to another state to face charges there. The reverse is also true, as a fugitive serving a sentence elsewhere cannot be brought to Canada to face trial for an offence committed in Canada. The new Extradition Act provides for the temporary surrender of a person imprisoned in Canada for the purpose of prosecution of that person or an appeal in a foreign state or entity. It also allows for Canada to request the temporary surrender of a person in similar cases.

The fugitive would be held in custody during the temporary surrender, and returned to complete the sentence before being finally surrendered to Canada or the foreign state.

 Allows for the ability to prosecute or to allow appeal procedures in reasonable time.

Avoids the risk of not being able to prosecute an offence at all as a result of passage of time and the possible deterioration of evidence.
Waiver The existing legislation does not provide for a fugitive to waive the right to an extradition hearing and formal surrender if he or she chooses to return immediately to the requesting state. However, it is a common practice and courts have allowed waiver. The new Extradition Act provides a legislative basis for consent to committal or surrender, subject to certain protections, and for waiver of extradition.

In the case of waiver of extradition, the extradition judge, after formally advising the fugitive of his or her rights, can return the fugitive to police custody for immediate return to the requesting state.

 Provides a legal framework for the expedient return of a fugitive when the committal or surrender are not contested.

Reduces costs and workload associated with the extradition process.
Proceedings under the Immigration Act at the same time as an extradition request While extradition and immigration removal proceedings are separate and distinct legal mechanisms to effect the removal of a person from Canada, there are instances where the two systems do operate concurrently. A common occurrence is when a person, who is the subject of extradition proceedings, has made a claim or has already been found to be a Convention Refugee. The new Extradition Act and the amendments to the Immigration Act will clarify and harmonize the manner in which the two systems operate when a person whose extradition is requested applied for a refugee status. The Minister of Justice, in consultation with the Minister of Immigration, will be able to consider the basis for a refugee claim within the extradition process and his or her decision to surrender will be equivalent to a decision of the Refugee Division on refugee status. Avoids duplication of decisions and minimizes delays in determining the issues relating to criminal conduct by refugee status applicants whose extradition is requested.
Roles of the judiciary and that of the Minister of Justice Although there is a two-track system in the current extradition process (the judge decides whether there is sufficient evidence against a person to extradite this person and the Minister of Justice decides on the surrender of a fugitive), it is not always clear who has the responsibility to ensure that the appropriate safeguards are applied. The new Extradition Act will clearly set out the respective roles with regard to the application of safeguards. The judge will decide whether there is dual criminality and sufficient evidence for the extradition request. This requirement applies to all requests for extradition whether under treaty or otherwise.

The Minister of Justice will decide whether to surrender the person to the requesting state, including the responsibility to determine matters arising from the foreign law or the state of political/human rights affairs in the requesting state.

This division of functions respects recent Supreme Court of Canada decisions.

 Clear identification of responsibilities will avoid possible duplication and delays, while respecting procedural and human rights safeguards for the fugitive.
Appeals The current Extradition Act was amended in 1992 to streamline the appeals process. The new Extradition Act retains the 1992 amendments. It only makes minor modifications to ensure consistency with the new framework. Maintains an efficient extradition process.
Use of video and audio-link technology The Criminal Code, the Mutual Legal Assistance in Criminal Matters Act and the Canada Evidence Act do not provide for the use of modern technology in allowing witnesses to testify. Amendments to the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act and the Canada Evidence Act will allow for the use of video and audio-link technology to gather evidence and provide testimony from witnesses in Canada or abroad. More efficient and less costly gathering of evidence.
Last Updated: 2005-10-20 Back to Top Important Notices