If you are charged with a crime in another country, that country could appeal to the Canadian government to extradite – i.e., deport – you to that country to stand trial. Facing prosecution in a foreign country, with unfamiliar laws, can be a scary thing. However, those facing extradition orders do have options to fight back.
Are all crimes eligible for extradition?
If you’ve followed the story of Brittney Griner – the American WNBA star who has been sentenced to nine years in Russian prison for carrying cannabis oil – you might be worried about the consequences of traveling internationally and accidentally breaking the laws of that country. However, when it comes to extradition, it’s important to understand that Canadian law requires the establishment of double criminality in order to extradite.
This means that the crime in question must be a crime in the foreign country as well as in Canada. For example, Saudi Arabia criminalizes homosexuality. But because homosexuality is not a crime in Canada, the Canadian government would not extradite for this offense.
For crimes that are eligible for extradition, there are two types of extradition orders – each of which has an appeals process:
This is an order from a foreign country asking for the accused to be detained in Canada prior to extradition. This type of order is granted in instances where the judge determines that the accused is at risk of committing crimes in Canada, or they are a flight risk – i.e., likely to flee the country if they are not detained.
If you receive a committal order, there is an option to appeal the decision. Your defence lawyer can work to demonstrate that you are not a risk.
This is an order to deport the accused to another country for prosecution. In determining whether to issue a surrender order, the Minister of Justice considers a variety of factors, including:
- Whether extradition would violate the accused’s rights under provision 6(1) of the Canadian Charter of Rights and Freedoms
- Whether the penalties the accused would face in the foreign country would be as just as if prosecuted in Canada. For example, would they face the death penalty in the other country – which is outlawed in Canada?
- Whether extradition would “shock the conscience” or be “unjust and oppressive”
If a criminal defence lawyer can demonstrate to the Minister of Justice that the accused would face such unjust or oppressive conditions if extradited, then an appeal may be successful.
Appealing extradition orders
The recent case of Sheck v. Canada (Minister of Justice) exemplifies the successful appeal of a surrender order to the United States. Glenn Sheck is an Indigenous Canadian who was accused of money laundering crimes in the United States. His legal team convinced the court to reverse his extradition order, citing two key arguments:
- Severity of sentence: They pointed out that the sentence he would serve in the U.S. – if convicted – could be up to 27 years. In Canada, the sentence would only be 10 years.
- Impact on family: They cited Canada’s shameful history of forcibly separating Indigenous parents from their children. If extradited, Sheck’s children would be separated from him internationally for decades.
Successfully appealing extradition orders is challenging, but it can be done. It’s important to seek out the help of a defence lawyer who is dedicated to this niche area of the law.