As readers will know, this blog has been a bit inactive of late. Poor form, I suppose. However, one advantage to taking a bit of a break is that it allows one to reflect and think about developments over a slightly longer term than the “that is so ten minutes ago” culture of reporting on legal developments that dominates these days.
Another thing readers know is that extradition law is a TCL topic that is frequently on my mind. As I was preparing the updates for the 2nd edition of the book (due in Fall 2013, by the way), I looked over a fair number of extradition cases and observed what might be a trend: Canadian courts seem to be getting increasingly less enthusiastic about extradition, specifically the shape of our extradition law since the “new” Extradition Act was brought into force in 1999.
The History
It’s worth prefacing this by saying that in the late 1990s there was a pressing need for new legislation to govern Canada’s extradition affairs. The process was bogged down with endless delays, too much concurrent court jurisdiction, and various problems with responding to requests from states which couldn’t necessarily conform to the traditional common law evidentiary expectations. Given the significant expansion of transnational crime which has occurred since the 1980s (even the rather pedestrian cases of people simply jumping borders after they commit “ordinary” crimes), there is no doubt that Canada needs an effective and efficient extradition system.
And that is definitely what we got, if by “effective and efficient” you mean “facilitating the Crown’s efforts to extradite and making it difficult to resist.” Concerns were raised in early days about the manner in which the Act removed a great deal of power from the courts and replaced it with Ministerial discretion, shrinking the oversight of judges in favour of highly political administrative decisions by the Minister of Justice. See, in particular, Anne La Forest’s prescient and astute article “The Balance between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings” (2002) 28 Queen's L.J. 95. Powered by this dynamic of the new legislation, however, the Crown successfully urged upon the courts the argument that Canada’s commitment to its treaty partners to cooperate in the fight against transnational crime was, essentially, the primary interpretive principle for the legislation. It quickly became clear that the Act itself was set up to give the Crown significant procedural advantages and to promote extradition with a minimum of the kind of muss and fuss that would be generated by a lot of defence challenges.
Faced with this picture of the Parliamentary intent underpinning the legislation, the courts have generally gone along with the Crown’s increasingly aggressive approach to fulfilling the requests of all extradition comers—particularly those of our neighbor to the south, with whom we (quite logically) do the bulk of our extradition business. To be sure, the Supreme Court of Canada has tried to buff off a couple of the rougher edges, turning back the Minister’s insistence on maintaining the discretion to extradite individuals to face the death penalty (in USA v. Burns, 2001), and retooling the role of the committal judge to ensure that the courts maintained the ability to reject extradition requests underpinned by unreliable evidence (in USA v. Ferras). For the most part, though, the courts for many years remained steadfast in their support of the Crown’s extradition efforts and of Canada fulfilling its obligations to its extradition partners.
For example, the Ontario and BC Courts of Appeal have essentially given Ferras as narrow an interpretation as it could bear, requiring a finding of “manifest unreliability” (or something like it) in order to even strike dodgy evidence from the record. The Supreme Court has upheld (in USA v. Fischbacher) the Act’s dilution of the double criminality requirement, the result of which is that individuals can be committed for extradition on the basis that the evidence could sustain prosecution for a particular offence, only to be surrendered by the Minister for offences which are much more serious in the requesting state—to the point that the jeopardy to be faced in the requesting state barely resembles what might happen to the individual in Canada. Judges have for the most part resolutely resisted defence attempts to have the requesting state disclose evidence, even where there is an air of reality to claims of unfairness or problems with the requesting state’s case, on the basis that our procedure cannot apply extraterritorially to the requesting state. This, despite the fact that (as I commented a while back) other states’ courts have ordered disclosure on the simple principle of attornment to the court’s jurisdiction, i.e. if you want to use our courts then you have to play by our rules.
Add to this problems of equality of arms and access to justice. The federal Crown not only wrote the legislation, it negotiates the extradition treaties, and as any international law student will tell you there is not much in the way of you’d call democratic consultation on the content of the treaties or even what states we conclude them with (we have extradition treaties with Argentina, Liberia, Cuba, Romania and Thailand—not any of them a place I would want to be extradited to). There is not what you’d call an extradition defence bar in Canada and some Crown personnel will be quick to tell you that the only true extradition lawyers are the Crown specialists. Defence-side resources are few, and were it not for Gary Botting’s excellent book there would be none at all. Some individuals sought for extradition are of modest resources and as a result some extradition proceedings are conducted on legal aid certificates, which is not at all appropriate for such a highly specialized area and sometimes puts lawyers out of their depth.
I could go on, but you get the picture.
TO BE CONTINUED
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