Overhaul Canada’s unjust approach to extradition

Robert Currie, Joanna Harrington and Alex Neve*

Extradition law and practice in Canada is in desperate need of reform. Hearings launched by the House of Commons Standing Committee on Justice and Human Rights offer an opportunity to do just that; an opportunity that must not be missed. 

Extradition is an important criminal justice tool and helps ensure that suspects cannot evade justice by fleeing to another country.  But if the process is almost entirely weighted in favour of the state seeking extradition, with little regard for the rights of the person facing the extradition, grave injustices can and do occur. That unfortunately is an apt description of the present state of extradition law in Canada.

Consider two glaring examples.

In 2014, Canadian citizen Hassan Diab was extradited to France, accused of carrying out a horrific terrorist bombing in Paris in 1980. He was extradited even though the judge found that “the prospects of conviction in the context of a fair trial, seem unlikely." He was held in solitary confinement in a maximum-security prison for over three years before he was released and returned to Canada, because investigating judges found no evidence to justify bringing him to trial. In fact, they uncovered evidence confirming he could not have been in Paris at the time of the bombing.  It was later revealed that during the extradition process Canadian and French government lawyers failed to disclose that his fingerprints did not match any of the fingerprints on a key piece of evidence.

In 2019, Canadian citizen Michele Messina committed suicide in a Quebec jail while awaiting extradition to the United States. In 2010, she had fled from Georgia to Quebec with her three children, to escape a violently abusive spouse and father. She was sought on charges of interfering with her spouse’s custody rights. The extradition was upheld even though, in a trial in Georgia, she would not be allowed to argue that she had acted to protect her children from imminent harm, a defence open to her in Canadian courts. She fought extradition for nearly a decade, but when justice closed its door to her, she took her own life.

Sadly, there have been many other instances of what we term unjust extradition.

That is why, when we appeared before the Justice Committee this week, we urged the federal government to commit to an overhaul of extradition law in keeping with the Halifax Proposals, a blueprint for reform that emerged from an experts colloquium at Dalhousie University.

Some of the specific changes should include the following.

Canada’s international human rights obligations, including gender equality, protection against torture, and safeguards against arbitrary unrest, unjust detention and unfair trials, should be expressly incorporated into the Extradition Act.

Many states do not allow their own nationals to be extradited. Ironically, France is one such country, but has no compunction in expecting Canada to turn over its own citizens. Citizens have the right to “remain in Canada” under section 6 of the Charter of Rights.  Whenever possible Canadians should be tried in our own courts, rather than extradited.

An extradition hearing should incorporate the presumption of innocence.  Our courts should not be bound, as they currently are, to accept a simple summary of the requesting state’s evidence as reliable; the person sought should have a meaningful opportunity to challenge the case against them. Exculpatory evidence should be disclosed. Defences that would be permissible in a Canadian trial, must be taken into account.

Extradition should only be permitted if the requesting state is ready to take the case to trial. It is not meant to be a fishing trip, there are other tools available if a government is still investigating.

Change is also needed within the Department of Justice. Lawyers in the International Assistance Group work within a silo designed to meet the needs of a requesting state. Restructuring should make it clear that their role is to ensure a fair and just result, not simply to win the case.

There is a pressing need for more oversight of and transparency about extradition cases. And Canada’s extradition treaties, many of which are stale dated, need to be reviewed.  As a starting point we should have no such treaties with countries with problematic human rights records that include unfair trials, discriminatory justice, and torture and ill-treatment.

The Committee’s study was championed by NDP Justice Critic Randall Garrison, and we sensed interest and concern from all parties. Thousands of Canadians have sent letters and signed petitions calling for reform.

Extradition plays a pivotal role in delivering justice. It cannot countenance being a source of injustice.

*Robert Currie is a professor in the faculty of law at Dalhousie University, Joanna Harrington is a professor in the faculty of law at the University of Alberta, Alex Neve is a Senior Fellow in the Graduate School of Public and International Affairs at the University of Ottawa. A version of this appeared as an opinion piece in the Ottawa Citizen on February 21, 2023. Image credit, Department of Justice.