Extradition from Canada requires a multistep process

by Adam Eidelmann
Cabinet Gamliel, avocats

One of the more hot button issues in recent news history has involved the notion of extradition of the Canadian and American citizenry. This issue has often attracted front-page coverage by the media and the Superior Court Criminal Division recently dealt with the subject matter in the case of Canada (Attorney General) c. Racine (2012 QCCS 4714).

 

In order to be forthwith, the facts at hand can be summarized as follows; the accused Racine is alleged to have been part of an elaborate conspiracy to ship drugs to the state of New York with several other men. Therefore the situs of the events are placed between Montreal and New York, leading to the issue of extra-territoriality and hence extradition of the accused to the United States.

 

Ultimately in the present case, the Attorney General of Canada acting on behalf of the United States of America, requested the Extradition of Mario Racine, a Brazilian born Canadian Citizen.

 

In his very detailed decision, the Honorable Mr. Justice J. Fraser Martin, J.S.C outlines the four major stages of extradition and discusses the obligations of the minister as well:

[4] It is perhaps trite to repeat that Extradition is a multistage process that commences with a request by the "requesting state" for the surrender of the person sought. Hon. E. G. Ewaschuk, Criminal Procedure and Practice in Canada, Canada Law Book, Aurora, Ontario #32:3010 General procedure:

“Extradition from Canada involves "four major stages": (1) the request by the extradition partner to the federal Minister of Justice for the "provisional arrest or extradition" of a person; (2) the federal Minister of Justice's decision to issue an "authority to proceed" against the person; (3) the extradition judge's decision to "commit the person" to await surrender by the federal Minister of Justice, and (4) the federal Minister of Justice's personal decision to "surrender the person" to the extradition partner.”

[…]  

[6] The law assigns to the minister the duty to verify Canada's obligations in relation to offense or offenses allegedly committed. This consists in the minister making a determination as to whether the conduct is extraditable under the provisions of the Extradition Treaty existing between Canada and the USA and under the Extradition Act, which imports Canada's treaty obligations into domestic law. 

[7] The minister must be satisfied that the requirements of the "double criminality" rule have been met. The minister may then by way of the Authority to Proceed identify the Canadian offenses that correspond to the alleged conduct of the person sought. This in turn establishes the framework within which the Extradition judge must work as the process goes forward to the judicial phase. Ewaschuk at # 32:3050 puts it as follows:

“The role of the "authority to proceed" in the extradition process is pivotal because it constitutes the authority of the extradition judge to embark on the hearing and defines the nature and scope of the inquiry. It names the corresponding Canadian offence for which extradition is sought and limits the circumstances under which a judicial committal for extradition may be made. United States of America v. Turner (2002), 177 C.C.C. (3d) 397 , 230 Nfld. & P.E.I.R. 127, 59 W.C.B. (2d) 172, 2002 CLB 2651 (Nfld. & Lab. S.C.T.D.), at paras. 14, 15 and 27.”

[8] Following an Extradition hearing before a Superior Court Judge the judicial stage of the process ends either with the liberation of the person sought or his detention pending a final decision on the part of the minister to surrender the person or not. Failing intervention of a Court of Appeal at the instance of one party or the other either with regard to the decision of the Extradition judge, the Minister of Justice or both the process ends with the surrender the party sought to the requesting state. 

[9] The Authority to Proceed in the case at bar is drafted in the following terms:

"The Minister of Justice authorizes the Attorney General of Canada to proceed before the Superior Court of Quebec to seek an order for the committal of Mario Racine, a.k.a. "Diego" who is being sought for prosecution by the United States of America. The Canadian offenses which correspond to the alleged conduct are: 

1. Conspiracy to traffic in a Schedule II controlled substance, contrary to Section 5 of the Controlled Drugs and Substances Act and section 465 of the Criminal Code: 

2. Possession of property obtained by crime, contrary to Section 354 of the Criminal Code. 

DATED at Ottawa, Ontario this 10th day of September, 2012. 

Cathy Chalifour, Counsel                                                                International Assistance Group for the Minister of Justice of Canada”

[10] The parameters established for the judicial phase of these proceedings are, I think, best summarized in the headnote in: United States of America v Commisso (2000) 143 C.C.C. (3d) 158, a decision of the Ontario Court of Appeal. (Leave for permission to appeal to the Supreme Court of Canada refused). The headnote reads in part as follows:

Section 18(1)( b ) of the Extradition Act , R.S.C. 1985, c. E-23, provides that in the case of a fugitive accused of an extradition crime, the judge shall issue a warrant for the fugitive's committal for surrender if such evidence is produced as would according to the law of Canada justify the committal of the fugitive for trial, if the crime had been committed in Canada. The assessment to be made under this section is conduct based. The court is to assume that the crime has been committed in Canada, although the court should consider only the conduct that underlies the foreign charge for which extradition is sought and for this purpose may look to the foreign indictment to determine what conduct is to be included in the assessment. The impugned conduct should be considered without regard to the jurisdiction in which it took place. It is not necessary that the Canadian offence established by the conduct be described by the same name or that it have the same legal elements of the offence charged in the requesting state. Thus, the extradition judge must commit a fugitive for surrender if satisfied that the conduct that underlies the foreign charge, wherever it took place, would, if it occurred in Canada, constitute a prima facie case of any of the offences listed in the Extradition Act or described in the relevant extradition treaty.

After a comprehensive analysis of the applicable law and the facts at hand, the Honorable Justice Martin concludes that the extradition is warranted concluding:

[63] While it may well be that evidence generated by way of the application of the co-conspirators' exception to the hearsay rule may add more "grist to the mill" I am satisfied on the basis of the Record of the Case and indeed that the evidence directly admissible against Racine, if believed, would be sufficient to permit a properly instructed jury to return a verdict of guilty with regard to both of the Canadian equivalent offenses. 

[64] It therefore follows that there is sufficient evidence justifying Racine's committal into custody to await the minister's decision with regard to surrender to the authorities of the United States of America to face prosecution in the Eastern District of New York.

The full text of the decision is available here: http://bit.ly/S6mr2K

Neutral reference: [2012] ABD 377