What should a court look for in the extradition treaty

The first antitrust-related extradition, which involved a bid-rigging conspiracy, took place in ; [12] since then, the number of antitrust extraditions has increased significantly. In the first quarter of alone, the government secured guilty pleas in two antitrust extraditions, including Maria Christina Ullings, a former cargo airline executive who was extradited from Italy in a price-fixing conspiracy, [13] and Eun Soo Kim, a former automotive parts executive who was extradited from Germany in an international market allocation and bid-rigging conspiracy.

If a client faces extradition, whether to the US or elsewhere, there are several strategies and decisions to consider. As early as possible, encourage your client to retain counsel in both the jurisdiction where they are located and the jurisdiction where extradition is being sought. Indeed, it can be most beneficial to obtain counsel in the requesting state before the client is aware of the commencement of extradition proceedings rather than waiting until an investigation has commenced or criminal charges have already been filed.

Lawyers in the sending state will be more familiar with the local extradition process, while those in the requesting state can handle the litigation and negotiations with authorities in the prosecuting forum.

It is critical that both sets of lawyers collaborate to develop a cohesive defence strategy, as actions taken in one jurisdiction will affect decisions in the other.

In criminal matters involving extradition proceedings, the development of defences and litigation strategy related to the underlying crime must be tackled at these early stages. If the client has liability insurance that involves a third jurisdiction, consider engaging counsel there as well. Many factors go into the decision to contest or waive extradition. Waiving extradition may make it easier to enter into a cooperation deal with the government or ultimately negotiate a more favourable outcome.

Any delay, however, will render the government far less likely to consider any deals. On the other hand, challenging extradition may make sense if the client has viable defences.

Many countries, for example, will deny an extradition request if the crime charged in the requesting state is not considered a crime in the sending state, if the suspect has already been tried for the crime elsewhere, or if the crime is a capital offence in the requesting country.

And countries generally do not extradite for purely political crimes, such as treason, sedition, or espionage. Reciprocity, comity and respect for differences in other jurisdictions are foundational to the effective operation of the extradition process. Footnote 4 The case law recognizes that Canada must honour its obligations to its extradition treaty partners, in part, because Canada relies on its partners to ensure individuals who commit crimes in our country are extradited back to face justice here.

Extradition is based on a presumption that, if extradited, the person sought will have a fair trial in the requesting country to determine his or her guilt. This is one of the central reasons why the extradition process is meant to be efficient and expeditious. In deciding whether to extradite someone, the guilt or innocence of the person sought is not a concern: that is a question that will be determined in the requesting state if extradition is ordered.

At the same time, the case law recognizes that our extradition proceedings must also protect the liberty interests of the person sought. The principle of double criminality is also aimed at protecting the rights of individuals sought for extradition. This principle dictates that a person cannot be surrendered for extradition if the alleged conduct for which they are sought does not amount to a crime in Canada. Put another way, Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada.

In Canada, extradition is a three-stage process. The Act divides responsibility for these three phases between the Minister of Justice and the courts. The Minister of Justice determines whether extradition proceedings should be started and how they will end, making extradition a largely executive function that is political in nature, as will be explained later. In the middle, there is the judicial phase where a judge determines whether there is sufficient evidence to justify committal.

Once a request for extradition has been made, the Minister of Justice must first determine whether extradition should proceed. The Authority to Proceed contains the name of the person whose extradition is sought and the name of the extradition partner. It also lists the offence or offences under Canadian law that would correspond to the conduct alleged against the person or the conduct in respect of which the person was convicted, as the case may be.

The Authority to Proceed is similar to an information or indictment in a domestic Canadian criminal proceeding. The Minister of Justice or designate provides the authority to commence extradition proceedings in court. With the exception of decisions on surrender pursuant to s. The IAG reviews and coordinates all extradition requests made either by or to Canada. In practice, the Minister is generally not personally involved in the review or approval of extradition requests going ahead or the issuance of the ATP.

Although the Minister may be advised of requests once made or soon after they are made, the review is conducted on behalf of the Minister by officials within the IAG. When an Authority to Proceed is issued, an extradition hearing also known as a committal hearing is held before the Superior Court of the province where the person sought is located.

This is the judicial phase of the extradition proceedings. An evidentiary hearing is held in which the extradition judge must decide the following issues when as in the Diab case the person is being sought for prosecution:. IAG counsel took on a litigation role in Dr. At the extradition hearing, the requesting state is represented by counsel for the Attorney General. These lawyers work within the Federal Department of Justice. Unusually, in Dr.

Typically, IAG counsel act in an advisory capacity and DOJ counsel in the various regional offices across Canada, who specialize in litigation and who are not members of the IAG, represent the requesting state at the extradition hearing.

If a prima facie case is not made out that the person sought committed the offence set out in the Authority to Proceed, the extradition judge discharges the person and the proceedings are over subject to an appeal by the Attorney General. If a prima facie case is made out, the extradition judge orders committal. The matter then moves to the surrender phase. In some instances, a person arrested pursuant to a request for extradition, will consent to committal and move straight to the surrender phase.

Footnote 6. This stage is often referred to as the executive phase of the extradition proceedings. This decision is primarily political and the Minister has significant discretion. That said, surrender must not violate the Charter Footnote 7 or be contrary to the provisions of the Act.

Sections 44 to 47 of the Act provide several grounds on which the Minister may or must refuse surrender. The extradition judge in the committal phase and the Minister in the surrender phase have distinctly different functions.

That said, some courts have recognized that there may be exceptional circumstances where a person sought for extradition provides such compelling exculpatory evidence that the Minister must consider it in making the surrender decision.

Footnote 8. The test for refusing surrender on s. In some cases, the person sought may consent to their surrender. If so, the judicial authority will rule on whether the person may be extradited.

If the judicial authority rules that the person may be extradited, the case enters the executive phase, in which an executive authority of the government of the requested country, usually a Prime Minister, Minister of Justice or Minister of Foreign Affairs for the United States, the appropriate executive authority is the Secretary of State , will determine whether the requested country will surrender the wanted person in extradition.

If so, the executive authority may issue a surrender order. Depending on the country involved, both the judicial ruling and the executive decision to surrender the wanted person may be subject to multiple levels of appeal. Once the requested country is ready to surrender the person, its authorities will coordinate with authorities in the requesting country to transfer the wanted person in custody. The State Department describes the extradition process for persons wanted abroad and found in the United States, along with its treaty, statutory and regulatory bases here.

International extradition requests are not initiated by private individuals. Only prosecuting authorities may initiate an extradition request, usually, after charges are filed and a court has issued a warrant of arrest for the person. When the person is wanted in the United States, the Office of International Affairs will work with the prosecutor to prepare a request for extradition to be submitted to a foreign country. The State Department presents the request to the foreign country through diplomatic channels.

Extradition of persons located abroad can take many months or even years to complete.