Disguised Extradition

9th Jul 2014 Comments Off on Disguised Extradition

Extradition and deportation are two different things.  Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution.  Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective.  In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted.  In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.

In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)

Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.

A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.

The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state,

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Can Refugees be Extradited?

14th Dec 2010 Comments Off on Can Refugees be Extradited?

As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada has indirectly touched upon the issue in Németh v. Canada, a decision about whether a refugee can be extradited to his/her country of origin to face charges. The answer is yes.

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