The Role for Human Rights Obligations in Canadian Extradition Law

Abstract

Extradition is the surrender from one state to another, on request, of persons accused or convicted of committing a crime in the jurisdiction of the state requesting extradition. While governed primarily by statute law within Canada, extradition is also the subject of treaty law, and thus a matter of public international law more generally, given that an act of surrender is ultimately the sovereign act of a willing state. Canada has entered into numerous extradition treaties to ensure a degree of inter-state cooperation in the enforcement of criminal law. But alongside this network of extradition treaties lies a network of human rights treaties to which Canada has also agreed to be bound.

Given the intersection of international and constitutional law in matters of extradition, and the interconnection between human rights treaties and the Canadian Charter of Rights and Freedoms, it is argued that the rights of fair trial and fair treatment under international human rights law should bolster the protection afforded by the Charter to the individual facing extradition, albeit that the threshold for invoking the latter remains high. And yet, as demonstrated in this review of Canada's extradition jurisprudence over the past thirty years, scant attention has been paid to Canada's international human rights obligations in matters of extradition.

This article argues that according a role for Canada's human rights obligations in Canadian extradition law would provide greater guidance in achieving the appropriate balance of rights and obligations when dealing with an extradition request and afford greater accountability for Canada with respect to all its treaty obligations.

Keywords: extradition, Canadian Charter of Rights and Freedoms, international law, human rights

JEL Classification: K14, K33