Reforming Canada's extradition system

Shortly before the House of Commons rose for the summer, the justice committee tabled a report on reforming the extradition system in Canada, offering some 20 recommendations.

"The Committee has heard calls for comprehensive reform of Canada's Extradition Act," the report reads. "Cases were cited as evidence of real harms resulting from flaws in our existing legislation and process and as examples of injustices that will likely continue to occur in the absence of reform. […] The Committee urges the government to act quickly to reform the Extradition Act and Canada's extradition process to prevent further injustices resulting from flaws in Canada's extradition system."

Rob Currie, professor at the Sulich School of Law in Halifax, is encouraged by the recommendations. Currie appeared before the committee during their study.

"The most important one, to my mind, is the final one, which says comprehensive reform of the Act as soon as possible," Currie says. "That's the one that I have been pushing for, and that we in the Halifax Colloquium have been pushing for since 2018 when we met. Really all of the other recommendations fit into that one."

Currie says the committee has caught up to the public sentiment that there are serious problems with fairness, procedure, and the government needing to be more protective of our citizens and people on our soil.

The committee requested a government response, which Justice Minister David Lametti's office said would arrive by the October deadline.

"Ensuring individuals are treated fairly by the law when extradition is requested is an important issue," Lametti's spokesperson, Diana Ebadi, said in an emailed response. "Minister Lametti is grateful for the work of the Justice Committee on the Extradition Act. He looks forward to reviewing the report closely."

Currie hopes it will be more than the standard response that they are taking the matter under advisement.

According to Currie, the committee's request for a government response is directed toward the minister of justice, who is responsible for extradition proceedings. However, the International Assistance Group at the Department of Justice handles all extradition proceedings. It also establishes policy, which until recently could be summed up as "extradition if at all possible," he says. The IAG has been mostly uninterested in looking at any changes to the Act or procedure.

"They have come under increasing pressure, and I'm starting to see some cracks in the façade, but that makes when we'll get a reply and what that will look like an interesting question," Currie says.

Gary Botting, a criminal defence lawyer in Vancouver who has done extensive work on extradition cases, says the recommendations are sound and fill many of the system's gaps. Still, he feels that the committee gave too much deference to the testimony of Janet Henchey, the director general and senior general counsel for the IAG.

Botting also points to a section of the report where Henchey claims that the Act balances the rights of the individual against the interests of the requesting state.

"If that were honoured, it wouldn't be a problem," Botting says. "It's not honoured. It's always the interests of the requesting state that the IAG kowtows to, and therefore the minister of justice, who simply follows them. It's a classic case of the tail wagging the dog."

Botting agrees with the recommendation that existing extradition treaties be reviewed because about a third date back to Queen Victoria, and they don't cover areas of concern today. He also appreciates the recommendation that the government withdraw from treaties with countries that contravene international human rights laws — about ten in total.

Currie says that the extradition of Hassan Diab to France in 2014, based on faulty evidence, has galvanized the public because of the human element to it and the palpable unfairness at play. On the other hand, the 2018 arrest of Huawei executive Meng Wanzhou, wanted on fraud charges in the U.S., did not capture the public imagination to the same extent, even though it was clear that Canada had been unfairly caught in a struggle between its southern ally and China.

The report raised issues in the Diab case around the presumption of reliability and reciprocity.

"The presumption of reliability is something that we identified as a problem with the Act, because between how it's worded and how the courts have interpreted it, it's a presumption that is impossible to overcome," Currie says. "Presumptions are meant to be rebuttable, but it's practically impossible to even question the requesting state's case because all they have to send is a summary of what evidence they say they have available."

In one study, Currie concluded that the target escaped extradition in only 8 cases out of 130 — because the requesting state lacked evidence on a vital element of the request.

Currie notes that the Department of Justice has been opaque about how many extradition requests they receive yearly, and how many they dismiss before engaging in any process. 

Botting also emphasized the value of a Justice Committee recommendation that the requesting country be ready for trial. After Diab's extradition, he spent three years in pre-trial detention, much of it in solitary confinement, before the case against him collapsed after magistrates ruled there was insufficient evidence against him to go to trial.

"The U.K. introduced a bar that says if the case is not ready to be tried, then that is a reason to stop extradition," Botting says.

Also raised in the report is enacting what is known as a "forum bar," whereby Canada would have jurisdiction to prosecute a case, in cyber-crime matters for example, in which case extradition would be rejected unless the requesting state could prove it would be in the interests of justice.

"You could look at it and say the U.S. could prosecute this case, but Canada could prosecute it as well," Currie says. "We have jurisdiction over it as well. If the accused is a Canadian citizen, the extradition case law says that Section 6 of the Charter applies to them—they have a right to remain in Canada." Then it's up to the court to rule whether the government has clearly determined that it's in the interest of justice for the prosecution to be carried out in the requesting country.

The Crown is supposed to weigh whether they should prosecute or leave it to the requesting state, says Currie, adding that, in reality, the answer is usually to let the Americans prosecute take over. "It's a meaningless formality that I've always argued is not a good way to adjudicate a Charter right that's owed to Canadian citizens," he says. 

Currie says that with a forum bar rule, the presumption should be that prosecution happens in Canada unless there is a good reason not to.

Botting also favours a recommendation that exculpatory evidence be disclosed to the defence, even if it exposes the weakness of the requesting state's case. It's something the defence bar has long called for.

Currie also says it's necessary to rebalance the court's powers vis-à-vis the minister. Currently, the court only determines if the requesting state's case is reliable and whether the alleged offense is a crime in Canada. The minister decides all of the critical questions, particularly around human rights concerns such as the risk of torture, whether the person faces double jeopardy or other oppressive circumstances.

"These are the kinds of questions that I argue should be answered by the courts because they are legal questions," says Currie. "The government says that because extradition has a political and diplomatic role to it that we should give this to the minister, but the upshot of that is you get the minister as a political decision-maker in this setting. But that means the standard of review is so deferential to the minister that it's nearly impossible to win."

There is also a recommendation that the role of lawyers making decisions about extradition be separated from the IAG to ensure more objectivity.

Overall, Currie says she is pleased with the recommendations, that the committee was unanimous in the report, and with the focus on observing international law so that Canada is not turning over people to states like India who have not signed the international torture convention. 

There are several instances where the minister has approved an extradition request, having received assurances that his rights will be respected, only to discover those assurances weren't being upheld. In 2022, the Federal Court ruled that the federal government breached s. 7 of the Charter in extraditing Regent Boily to Mexico for marijuana trafficking, knowing there was a risk he would be tortured, which he was. 

"It's a shocking case," Currie says. "The committee picked up on these assurances as well, and I'm glad they did because this is something that needs work."