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The Role for Human Rights Obligations in Canadian Extradition Law

  • Joanna Harrington (a1)
Summary

To secure greater inter-state cooperation in criminal law enforcement, Canada has entered into a number of extradition treaties. Yet alongside this network of extradition treaties lies a network of human rights treaties to which Canada has also agreed to be bound. Given the inherently international nature of extradition, and the interconnection between Canada's human rights treaties and its obligations under the Canadian Charter of Rights and Freedoms, one would have thought that Canada's international human rights obligations might play some role in bolstering the protection afforded by the Charter to the rights of an individual facing extradition from Canada, even if the threshold for invoking the latter remains high. And yet, while a review of Canada's extradition jurisprudence for the past thirty years confirms that a role for human rights has emerged in Canadian extradition law, scant attention has been paid to Canada's international human rights treaty obligations as treaty obligations when deciding whether to extradite upon receiving a valid request. The author argues that if Canada's international human rights obligations were considered, along with Canada's domestic Charter obligations, greater guidance would be made available as to the appropriate balance of rights and obligations at stake, while also affording equal treatment to all of the treaty obligations relevant to extradition.

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1 Extradition Act, S.C. 1999, c. 18, as amended.

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

3 The Canadian Abridgment and the indices to the Supreme Court Reports, for example, classify extradition as a matter of criminal law, while many respected international law texts identify extradition as a matter of public international law (often under the heading of jurisdiction). The criminal law process, and its associated burden of proof, kicks in after an extradition, albeit that the offence underlying an extradition request must be criminal in nature. Extradition has been recognized as part of international law since at least the 1960s, with India’s Satya Bedi and Australia’s Ivan Shearer writing their doctoral theses on the subject at Utrecht and Northwestern respectively. See Bedi, S. D., Extradition in International Law and Practice (Rotterdam: Bronder-Offset, 1966); and Shearer, I. A., Extradition in International Law (Manchester: Manchester University Press, 1971). For extradition’s current inclusion in several leading texts on international law, see Aust, A., Handbook of International Law (Cambridge: Cambridge University Press, 2005) at 264–68, Brownlie, I., Principles of Public International Law, 6th edition (New York: Oxford University Press, 2003) at 312–14, Dugard, J., International Law: A South African Perspective, 2nd edition (Kenwyn: Juta and Company, 2000) at 155–79, Kindred, H. M. et al., International Law: Chiefly as Interpreted and Applied in Canada, 6th edition (Toronto: Emond Montgomery, 2000) at 547–59, and Shaw, M. N., International Law, 5th edition (Cambridge: Cambridge University Press, 2003) at 610–11.

4 This tally was provided by the government of Canada to the Organization of American States (OAS) in 2004 as part of an OAS review of “Mutual Legal Assistance in Criminal Matters and Extradition,” available online at <http://www.oas.org/juridico/MIA/en/can/en_can-ext-gen-g8iag.html> (15 August 2006).

5 International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, (1967) 6 I.L.M. 368, Can. T.S. 1976 No. 47 (in force 23 March 1976; accession by Canada 19 May 1976) [ICCPR]. Canada’s treaty ratification record can now be verified online using the government of Canada’s treaty information website at <http://www.treaty-accord.gc.ca/> (15 August 2006).

6 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, (1984) 23 I.L.M. 1027, Can. T.S. 1987 No. 36 (in force 26 June 1987; ratification by Canada 24 June 1987) [UNCAT].

7 Soeringv. United Kingdom, Judgment of 7 July 1989, Series A, No. 161, (1989) 11 E.H.R.R. 439 and (1989) 29 I.L.M. 1063 [Soering] (concerning the extradition, without assurances, of a German citizen from the United Kingdom to the United States in circumstances where there was a real risk he would spend many years in deplorable conditions on death row awaiting his execution). For an early discussion of the import of the Soering case published in Canada, see Williams, S. A., “Extradition to a State That Imposes the Death Penalty” (1990) 28 Can. Y.B. Int’l L. 117 at 130–38 and 148–53.

8 See Breitenmoser, S. and Wilms, G. E., “Human Rights v. Extradition: The Soering Case” (1990) 11 Mich. J. Int’l L. 845 ; Quigley, J., “The Rule of Non-Inquiry and the Impact of Human Rights on Extradition Law” (1990) 15 N.C.J. Int’l L. & Comm. Reg’n 401 ; van den Wyngaert, C., “Applying the European Convention on Human Rights to Extradition: Opening Pandora’s Box?” (1990) 39 Int’l & Comp. L.Q. 757 ; Lagodny, O., “Human Rights and Extradition” (1991) 62 Rev. I.D.P. 45 ; Piragoff, D. K. and Kran, M. V. J., “The Impact of Human Rights Principles on Extradition from Canada and the United States: The Role of National Courts” (1992) 3 Crim. L. Forum 225 : Shea, M. P., “Expanding Judicial Scrutiny of Human Rights in Extradition Cases after Soering ” (1992) 17 Yale J. Int’l L. 85 ; Williams, S. A., “Human Rights Safeguards and International Cooperation: Striking the Balance” (1992) 3 Crini. L. Forum 191 ; Dugard, J. and van den Wyngaert, C., “Reconciling Extradition with Human Rights” (1998) 92 Am. J. Int’l L. 187 ; and Micheli, P., “Domestic Rights and International Responsibilities: Extradition under the Canadian Charter” (1998) Yale J. Int’l L. 141.

9 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, E.T.S. No. 5 (in force 3 Septem-ber 1953) [ECHR].

10 See United States of America v. Burns, [2001] 1 S.C.R. 283 at para. 72 [Burns]; Kindter v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 at 844; and Argentina v. Niellino, [1987] 1 S.C.R. 536 at 551. See also La Forest, A. W., “The Balance between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings” (2002) 28 Queen’s L.J. 95 (with the title reflecting the importance attached to comity in Canadian extradition law).

11 Extradition Act, supra note 1. Commentary on the Act’s provisions can be found in Botting, G., Canadian Extradition Law Practice (Toronto: Lexis-Nexis, 2005); and Krivel, E. F., et al. A Practical Guide to Canadian Extradition (Toronto: Carswell, 2002). Sadly, the former leading text, La Forest’s Extradition to and from Canada, is now out of date: La Forest, A. W., La Forest’s Extradition to and from Canada, 3rd edition (Aurora: Canada Law Book, 1991).

12 Canada does not ordinarily extradite to non-Commonwealth states unless there is an extradition treaty in place with the requesting state, although the statutory-regime does permit the making of a specific agreement “for the purpose of giving effect to a request for extradition in a particular case.” Extradition Act, supra note 1 at s. 10(1). Extradition on a case-by-case basis was also permitted by proclamation under Part II of the former Extradition Act, but used sparingly. See Castel, J.-G. and Williams, S. A., “The Extradition of Canadian Citizens and Sections 1 and 6(1) of the Canadian Charter of Rights and Freedoms” (1987) 25 Can. Y.B. Int’l L. 263 at 265; and Krivel et al., supra note 11 at para. 2.2(c).

13 Canada (A-G) v. Ontario (A-G), [1937] A.C. 326 (P.C.). As explained in United States of America v. Allard (No. 2), [1991] 1 S.C.R. 861 at 865 [Allard (No. 2)], “extradition does not exist by virtue of customary international law. Rather extradition takes place in accordance with the [then] Extradition Act, R.S.C. 1985, c. E-23, and pursuant to section 3 of the Act, with the provisions of the applicable treaty.”

14 Baker v. Canada, [1999] 2 S.C.R. 817 at para. 70.

15 Extradition Act, R.S.C. 1985, c. E-23.

16 Fugitive Offenders Act, R.S.C. 1985, c. F-32.

17 Extradition Act, supra note 1 at s. 9(1) and Schedule.

18 Extradition Act, 1870 (U.K.), 33 & 34 Vict., c. 52.

19 As explained by La Forest J. in McVey v. United States of America, [1992] 3 S.C.R. 475 at 509.

20 An Act to Amend the Extradition Act, S.C. 1992, c. 13. Minor amendments were made in 1882, 1886, 1909, and 1985.

21 As discussed in United States of America v. Kwok, [2001] 1 S.C.R. 532 [Kwok], a case concerning the extradition of a Canadian citizen to the United States on charges of conspiracy to traffic heroin.

22 The problem with the list approach is that it requires a statutory amendment as new crimes arise, and delays in doing so can jeopardize Canada’s extradition relations, as illustrated in Allard (No. 2), supra note 13, where Canada had to refuse a US request for two hijackers in 1969 because hijacking was not listed as an extraditable offence until 1976. To avoid this problem, and still meet the need for double criminality, extraditable crimes are now described in terms of the severity of their punishment.

23 Canada, Department of Justice, “Canada’s Proposed New Extradition Act,” press release (5 May 1998).

24 Since this division of responsibilities was also part of the previous statutory scheme, now clarified under the 1999 Extradition Act, the jurisprudence associated with the former Act remains relevant.

25 Extradition Act, supra note 1 at ss. 3( 1 ) (a) and 3(3).

25 Ibid. at s. 15.

26 Ibid. at s. 29(1). See also United States of America v. Ferras; United States of America v. Lalty, 2006 SCC 33 [Ferras].

28 Argentina v. Mellino, [1987] 1 S.C.R. 53b at 553; United States of America v. Lépine, [1994] 1 S.C.R. 286 at para. 10; United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 120; and United Stales of America v. Yang (2001), 56 O.R. (3d) 52 at para. 47 (C.A.). However, as Sopinka J. noted in Lépine at para. 33: “It seems inconsistent with the approach to the interpretation of the Act é stressing the importance of the hearing to the rights of the individual and then to proceed to interpret the content of that hearing as ever-increasingly ‘modest’.”

29 Extradition Act, supra note 1 at s. 38(1 )(c). The Attorney General of Canada has conceded that this report could be used by the judge to address concerns. See Canada (A.C.) v. Fulfillment Solutions, [2005] B.C.J. No. 2794 at para. 113.

30 Section 40(1) of the Extradition Act, supra note 1, stipulates that “[t]he Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner.”

31 Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at 658 [Idziak].

32 This responsibility was acknowledged in the department’s press release issued when the proposed Act was tabled in Parliament: “Canada’s Proposed New Extradition Act,” supra note 23.

33 “The Minister of Justice, on the other hand, will have the responsibility for assessing the foreign legal system to ensure that human rights are respected and a fair trial will be provided in the requesting state.” Canada, H.C. Debates, 36th Pari., 1st Sess., vol. 135, No. 135 at 9006 (8 October 1998) (Eleni Bakopanos, Lib.).

34 Under the former Extradition Act, the only statutory restrictions on a minister’s discretion to extradite were those concerning political offences. Extradition Act, R.S.C. 1985, c. E-23, ss. 21 and 22.

35 Extradition Act, supra note 1 at s. 44(1) (b).

36 As acknowledged in Canada, H.C. Debates, 36th Pari., 1st Sess., vol. 135, No. 135 at 9006 (8 October 1998) (Eleni Bakopanos, Lib.). See also Canada, H.C. Debates, 36th Pari., 1st Sess., vol. 135, No. 162 at 10592 (30 November 1998) (Peter Adams, Lib.).

37 UN Model Treaty on Extradition, adopted by the General Assembly on 14 December 1990 by Resolution 45/1 16, UN Doc. A/RES/45/116(1990), reprinted in (1991) 30 I.L.M. 1407. For commentary, see A.T.H. (Bert) Swart, , “Refusal of Extradition and the United Nations Model Treaty on Extradition” (1992) 23 Netherlands Y.B. Int’l L. 75. The template has since been modified by the adoption of “Complementary Provisions to the Model Treaty on Extradition” by the General Assembly on 12 December 1997 by Resolution 52/88, UN Doc. A/ RES/52/88 (1997).

38 Canada, H.C. Debates, 36th Pari., 1st Sess., vol. 135, No. 162 at 10598 (30 November 1998) (Daniel Turp, PQ).

39 Canada, H.C. Debates, 36th Pari., 1st Sess., vol. 135, No. 162 at 10592 (30 November 1998) (Peter Adams, Lib.).

40 Extradition Act, supra note 1 at s. 44(1) (a). This discretion accorded to the minister is not open to judicial review. Dai v. Canada (Minister of Justice), 2006 BCCA 179 [Dai].

41 Fugitive Offenders Act, supra note 16 at s. 16. The origins of the “unjust and oppressive” clause can be traced back to the British scheme for rendition found in the Fugitive Offenders Act, 1881, 44 & 45 Vict., c. 69, s. 10. Recent cases have, incorrectly in my view given the provision’s history, combined this statutory ground for refusing extradition with the constitutional ground of fundamental justice. United States of America v. Reumayr (2003), 176 C.C.C. (3d) 377 at para. 19(B.C.C.A.), cited in United Stales of America v. Fordham, 2005 BCCA 197 at para. 13.

42 Extradition Act, supra note 1 at s. 46(1)(a).

43 Ibid, at s. 46(1)(b).

44 Ibid. at s. 46(1)(c).

45 Ibid, at s. 46(2).

46 Section 45 (1) of the Extradition Act, supra note 1, provides that “ [t] he reasons for the refusal of surrender contained in a relevant extradition agreement, other than a multilateral extradition agreement, or the absence of reasons for refusal in such an agreement, prevail over sections 46 and 47.”

47 See Canada’s report to the OAS, supra note 4 at 4.

48 UN Security Council Res. 1373, UN SCOR, 56th Sess., 4385th mtg, UN Doc. S/ Res/1373 (2001) at operative paras. 3(f) and 3(g).

49 Extradition Act, supra note 1 at s. 47.

50 Ibid, at s. 44(2).

51 See, for example, Article 6 of the Canada-US Extradition Treaty, 3 December 1971, 1041 U.N.T.S. 57, Can. T.S. 1976 No. 3 (in force 22 March 1976), as amended by an exchange of notes done on 28 June 1974 and 9 July 1974, and by protocols signed on 11 January 1988 and 12 January 2001, which stipulates that “[w]hen the offense for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offense, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed.”

52 Canada, H.C. Debates, 36th Pari., 1st Sess., vol. 135, No. 135 at 9006 (8 October 1998) (Eleni Bakopanos, Lib.). This retention of discretion later led to a failed attempt in the Senate by Liberal members Jerry Grafstein and Serge Joyal to make the death penalty a mandatory ground of refusal. Aubry, J., “Liberals Turn Down Free Vote on Extradition Bill,” Vancouver Sun, 6 May 1999, at A11.

53 See the discussion in Burns, supra note 10. However, an assurance is not required when the requesting state has advised Canada that the death penalty is not available for the offences underlying the extradition request. Dai, supra note 40.

54 Extradition Act, supra note 1 at s. 47(c), as amended by the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 190.

55 Canada secured the 1976 extradition of Leonard Peltier to the United States with a death penalty assurance. Canada, Department of Justice, “Release of Materials Concerning the Extradition of Leonard Peltier,” press release (15 October 1999). For further comment on the Pelter extradition, see note 67 in this article.

56 In February 1992, assurances were given to secure the extradition of Leo Robert O’Bomsawin to Florida to stand trial for murder. Canada apparently sought assurances because of concerns that O’Bomsawin, as an Abenaki Indian, was more likely to receive the death penalty than if he was white. Burns, J. F., “Canada Wins U.S. Extradition Deal,” New York Times, 14 February 1992, at A3; and Claiborne, W., “Murder Suspect Tests U.S.-Canada Extradition Act,” Washington Post, 29 November 1991, at A38.

57 In February 1996, Canada required Mexico to agree, “in writing and in advance,” to four conditions before extraditing an openly gay man to stand trial for murder due to hostility shown by Mexican authorities towards homosexuals. Canada, Department of Justice, “Minister of Justice Orders Surrender of Dennis Hurley to Mexico,” press release (27 February 1996). In October 1996, Canada sought both death penalty and speedy trial assurances from the Philippines. Canada, Department of justice, “Minister of justice Orders Surrender of Rodolfo Pacificador to the Republic of the Philippines,” press release (23 October 1996).

58 See, for example, United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481 (C.A.), leave to appeal discontinued 30 September 1997 [Hurley].

59 This point is well illustrated by the Jamieson case where two applications for judicial review were brought, one before and one after the minister had exercised his discretion, resulting in two different judgments by the same court on the same facts. United States of America v. Jamieson (No. 1) (1992), 73 C.C.C. (3d) 460 (Qué. C.A.) [Jamieson (No. 1)]; and United Slates of America v. Jamieson (No. 2) (1994), 93 C.C.C. (3d) 265 (Qué. C.A.) [Jamieson (No. 2)].

60 See Kwok, supra note 21 at paras. 93 and 94.

61 “Canada’s Proposed New Extradition Act,” supra note 23. Upon the Act’s coming into force, the minister of justice proclaimed: “Our message is clear—Can-ada will not be a safe haven for fugitives from justice.” Canada, Department of Justice, “New Extradition Act Comes into Force,” press release (18 June 1999).

62 Re Burley (1865), 1 C.L.J. 34 at 50, reiterated by La Forest J. in Canada v. Schmidt, [1987] 1 S.C.R. 500 at 516. See also Re Rosenberg (1918), 28 Man. R. 439 at 445 (C.A.): “It would be an insult to a friendly state to entertain any doubt as to the justice of its courts or the good faith with which it will observe the provisions of the treaty.”

63 Federal Court Act, S.C. 1970, c. 1. See also Puerto Rico (Commonwealth) v. Hernandez, [1975] 1 S.C.R. 228 [Hernandez], concerning a US request for the extradition of a student political activist accused of murdering a police officer during a campus riot.

64 Section 1 (a) of the Canadian Bill of Rights, S.C. 1960, c. 44, protects the “right of the individual to life, liberty, security of the person and enjoyment of prop-erty, and the right not to be deprived thereof except by due process of law,” while section 2 (e) provides that no federal law shall be construed or applied so as to “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.”

65 Armstrong v. Wisconsin, [1973] F.C. 437 at 443 (C.A.), leave to appeal denied, (1973) 32 D.L.R. (3d) 265 n (S.C.C.) [Armstrong]. At issue was a US request for the extradition of an opponent of the Vietnam War accused of bombing university buildings in which he believed war-related research was taking place.

66 Hernandez, supra note 63 at 245 (Laskin J. dissenting on other grounds), cited with approval in United States of America v. Djnar, [1997] 2 S.C.R. 462 at para. 121.

67 See, for example, United States of America v. Peltier, Vancouver Reg. No. 760176, 18 June 1976 (B.C.S.C.); Re Peltier, Court File No. T-1327-76, 27 October 1976 (Fed. C.A.), concerning a US request for the extradition of an Aboriginal leader for the murder of FBI agents at a South Dakota reservation. Peltier was surrendered to the United States in December 1976 and convicted at trial in 1977. A post-surrender appeal to the Supreme Court of Canada was dismissed 22 June 1989. United States of America v. Peltier, [1989] S.C.C.A. No. 207. But the case continues to attract concern in Canada and abroad with many believing that Peltier’s extradition was secured by false affidavits procured by the US authorities. A Canadian departmental review of the file was ordered in 1994, with the results and the conclusion that Peltier had been lawfully extradited being released to the public in 1999. See “Release of Materials Concerning the Extradition of Leonard Peltier,” supra note 55. Peltier, now in his sixties, continues to serve two consecutive life sentences in an American penitentiary, while concerns about his extradition persist. Lunman, K., “MPs Call for Probe of Peltier Extradition,” Globe and Mail, 20 November 2002, at A6. See also Martin, D. L., “Unredressed Wrong: The Extradition of Leonard Peltier from Canada,” in Boyd, Susan C. et al., eds., (Ab)Using Power: The Canadian Experience (Halifax: Fernwood, 2001), 214 ; and Martin, D. L., “Extradition, The Charter and Due Process: Is Procedural Fairness Enough?” (2002) S.C.L.R. (2d) 161 at 172–80.

68 Some challenges were initially successful before the Québec courts, as discussed later in this article, but subsequently over-turned by the Supreme Court of Canada.

69 Canada v. Schmidt, [1987] 1 S.C.R. 500 [Schmidt].

70 Argentina v. Niellino, [1987] 1 S.C.R. 536 [Niellino].

71 United States of America v. Allard and Charette, [1987] 1 S.C.R. 564 [Allard].

72 See further, Schmidt, supra note 69 at 506–8.

73 Ibid, at 519.

74 Ibid, at 522. The European case was Altun v. Federal Republic of Germany, 3 May 1983, No. 10308/83, (1984) 36 D.R. 236, (1984) 7 E.H.R.R. 154, decided by the now-abolished European Commission on Human Rights.

75 Ibid.

76 Ibid, at 523.

77 Ibid, at 526.

78 Ibid, at 526–27. Humanitarian considerations, however, eventually won out, with the Minister of Justice subsequently refusing to surrender Schmidt because she was seriously ill. La Forest, supra note 11 at 209.

79 But on the basis that the two offences were not the same. Schmidt, supra note 69 at 531 (LamerJ.) and 534 (Wilson J.).

80 Ibid, at 530.

81 Ibid, at 532–33.

82 Ibid, at 535.

83 Mellino, supra note 70 at 547.

84 Ibid, at 550.

85 Ibid.

86 Ibid.

87 Ibid. at 559 (Lamer J.) and 561 (Wilson ].).

88 Ibid, at 560 (Lamer J.) and 562 (Wilson J.).

89 After returning to Canada from Cuba in 1979, Allard and Charette served time in prison for their roles in the FLQ bombings of the 1960s, a terrorist campaign aimed at achieving Québec’s independence. “U.S. Denied Extradition in FLQ Hijacking Case,” Toronto Star, 30 June 1987, at A23.

90 Allard, supra note 71 at 571 (La Forest J.).

91 Ibid.

92 Ibid, at 572.

93 Ibid, at 572–73.

94 Ibid, at 574.

95 Ibid, at 576. Allard and Charette would later avoid extradition to the United States by way of a unanimous ruling by the Court on the grounds that a fugitive may only be extradited for acts recognized in Canada as crimes at the time of commission. Hijacking was not recognized as an offence in Canada until 1972 and was not included in Canada’s list of extraditable offences until 1976. Allard (No. 2), supra note 13. Canada’s Justice Department responded by making a rare application to rehear the case, but this was unsuccessful.

96 United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469 [Cotroni].

97 One of the accused was the well-known mafia boss, Frank Cotroni, whose family is said to control several rackets in Quebec and has been linked to the powerful Bonnanno crime family in New York. Cotroni had been convicted in the United States for drug smuggling in 1975, but was paroled after serving four vears of a fifteen-year sentence. He was later convicted in Canada of manslaughter in relation to the 1981 killing of a former associate, turned police informant, in Montréal and was in prison at the time of the US indictment and extradition request. Cotroni is also famous as perhaps the only mobster to have authored a cookbook, the preface to which hints at his past. See Cotroni, F., Cuisine des souvenirs et recettes (Montréal: Trécarré, 2003).

98 A majority of the court had suggested in obiter in Schmidt, supra note 69 at 520, that the extradition of a Canadian citizen accused of committing crimes in another jurisdiction was not an unjustified infringement of section 6(1), relying on the Ontario Court of Appeal’s decision in Re Federal Republic of Germany and Rauca (1983), 4 C.C.C. (3d) 385 at 404 (Ont. C.A.) [Rauca], but the Controni case was the first to require the court to address the section 6(1) argument directly since the acts were committed in Canada and could be prosecuted in Canada.

99 R. v. Oakes, [1986] 1 S.C.R. 103.

100 Cotroni, supra note 96 at 1490.

101 Ibid.

102 Ibid, at 1488.

103 Ibid, at 1494.

104 Ibid, at 1498.

105 A ministerial order for Cotroni’s surrender was subsequently made in 1999 to take effect upon the completion of his Canadian prison sentence. A year later, however, Cotroni consented to his extradition, satisfying US desires for an earlier trial given the effect of time on witness memory, on the condition that he be returned later to Canada: “Mob Figure Agrees to Extradition to U.S.,” Toronto Star, 27 February 1991, at A14. Cotroni was later convicted for drug trafficking and served a Canadian prison sentence until 2002. “Mafia Boss Cotroni Linked to Bonnannos; Death Marks End of an Era in Canadian Crime,” Hamilton Spectator, 18 August 2004, at A10.

106 Cotroni, supra note 96 at 1509.

107 Ibid, at 1517–18.

108 Ibid, at 1501.

109 Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment.”

110 Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 [Kindler].

111 Reference re Ng Extradition, [1991] 2 S.C.R. 858 [Ng]. The decision in Ng, however, is essentially rendered in Kindler, supra note 110.

112 For commentary, see Manson, A., “ Kindler and the Courage to Deal with American Convictions” (1992) 8 Crim. R. (4th) 68 ; O’Reilly, J. W., “Case Comment: Ng and Kindler ” (1992) 37 McGill L.J. 873 ; Pak, J., “Canadian Extradition and the Death Penalty: Seeking a Constitutional Assurance of Life” (1993) 26 Cornell Int’l L. J. 239 ; Schabas, W. A., “ Kindller and Ng. Our Supreme Magistrates Take a Frightening Step into the Court of Public Opinion” (1991) 51 Rev. du B. 673 ; and Spencer, A. J., “Fugitive Rights: The Role of the Charter in Extradition Cases” (1993) 51 U. of T. Fac. of L. Rev. 54. See also Williams, S. A., “Extradition and the Death Penalty Exception in Canada: Resolving the Ng and Kindler Cases” (1991) 13 Loyola L.A. Int’l & Comp. L.J. 799 (written before the judgments of the Supreme Court).

113 Canada-US Extradition Treaty, supra note 51.

114 Kindler, supra note 110 at 831 (La Forest J.) and 846 (McLachlin J.).

115 Ibid, at 846.

116 Ibid. at 831 (La Forest J.) and 847 (McLachlin J.).

117 Ibid, at 832 (La Forest J.) and 852 (McLachlin J.).

118 Canada carried out its last execution in 1962 and abolished the death penalty for most offences in 1976, although the penalty remained potentially available for military offences until 1998. See Criminal Law Amendment Act (No. 2), S.C. 1976, c. 105 and An Act to Amend the National Defence Act, S.C. 1998, c. 35, ss. 24-28. On the history of the death penalty in Canada, see Harvie, R. and Foster, H., “Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law and the Future of the Death Penalty” (2005) 40 Gonzaga L.R. 293 at 308–12.

119 Both McLachlin and La Forest JJ. drew attention to the fact that only four years prior, a resolution to reinstate capital punishment had narrowly escaped adoption in the House of Commons. Kindler, supra note 110 at 852 and 832.

120 Ibid, at 852.

121 Ibid.

122 After referring to the commission’s 1984 decision in Kirkwood v. United Kingdom, No. 10479/83, (1984) 37 CD. 158 and the court’s 1989 judgment in Soering, supra note 7, McLachlin J. stated: “The fact that two tribunals reached different views on not dissimilar cases illustrates the complexity of the issue and supports the view that courts should not lightly interfere with executive decisions on extradition matters.” Kindler, supra note 110 at 856. This statement does not acknowledge that commission decisions could be appealed to the court.

123 Ibid, at 852–53.

124 After losing on this issue in Soering, supra note 7, the United States responded with the provision of an assurance, as confirmed in Lillich, R. B., “The Soering Case” (1991) 85 Am. J. Int’l L. 128 at 141. See also Schabas, supra note 112 at 678. The court has since recognized that European states routinely request assurances, albeit with the suggestion that this was a new practice. Burns, supra note 10 at para. 138.

125 A practice long established. See Reeves, J. S., “Extradition Treaties and the Death Penalty” (1924) 18 Am. J. Int’l L. 298.

126 “Release of Materials Concerning the Extradition of Leonard Peltier,” supra note 55. These materials, released in 1999, confirm that Canada in 1976 required a death penalty assurance to secure Peltier’s extradition.

127 Burns, supra note 10 at para. 138.

128 Kindler, supra note 1 10 at 835–36.

129 Ibid, at 834.

130 Ibid, at 792.

131 Ibid, at 824.

132 Ibid, at 815.

133 Ibid, at 824.

134 Ibid, at 825.

135 “When the decision was announced in the House of Commons, members of … [the] government applauded vigorously.” Marain, D., “Canada Sends Accused Killer Ng Back to US,” Los Angeles Times, 27 September 1991, at A3. This is hardly surprising given the government’s receipt of over 100,000 letters from Canadians, urging Ng’s extradition. Sachs, A., “A Fate Better Than Death,” Time, 4 March 1991, at 52.

136 Marain, supra note 135; Bishop, K., “Canada Extradites Suspect in California Slayings,” New York Times, 27 September 1991, at A16; and “Two American Fugitives Whisked out of Canada,” The Record (Kitchener-Waterloo), 27 September 1991, at A3.

137 See further Harrington, J., “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill L.J. 55 at 84.

138 Kindler would, however, later successfully challenge his death sentence in the Philadelphia courts on the grounds that the jury instructions had been flawed. Kindler v. Horn, 291 F.Supp. 2d 323 (E.D.Pa. 2003).

139 Kindler v. Canada, UN Doc. CCPR/48/D/470/1991 (views adopted 30 July 1993), later published in Report of the Human Rights Committee, UN Doc. A/48/40 (1993), vol. II, annex XII.U, 98 I.L.R. 426, (1993) 14 H.R.L.J. 307 and (1994) 1 I.H.R.R. 98 [Kindler]; and Ng v. Canada, UN Doc. CCPR/49/D/ 469/ 1991 (views adopted 5 November 1993), later published in Report of the Human Rights Committee, UN Doc. A/49/40 (1994), vol. II, annex IX.CC, 98 I.L.R. 479, (1994) 15 H.R.L.J. 149 and (1994) 1 I.H.R.R. 161 [Ng]. The views in Kindlerhave since been overturned by the Human Rights Committee in fudge v. Canada, UN Doc. CCPR/C/78/D/829/1998 (views adopted 5 August 2003), later published in Report of the Human Rights Committee, UN Doc. A/58/40 (2003), vol. II, annex V.G, (2003) 42 I.L.M. 1214 and (2004) 11 I.H.R.R. 125.

140 After numerous delays and a change in venue as a result of the pretrial publicity, Ng was convicted of eleven counts of first-degree murder in 1999 and sentenced to death. “Killer Charles Ng Sentenced to Death,” Los Angeles Times, 1 July 1999, at A3. He currently resides on death row in San Quentin State Prison awaiting the assignment of counsel to pursue an appeal of his sentence. Saunders, D. J., “Justice Delayed (and Delayed and Delayed),” San Francisco Chronicle, 2 November 2004, at B9.

141 R v. Hanson, [1994] O.J. No. 102 (C.A.), leave to appeal denied, [1994] S.C.C.A. No. 112.

142 Stale v. Makxvanyane (1995), (3) S.A. 391 (CC). See also the discussion of both sets of proceedings in Williams, S. A., “Extradition from Canada since the Charter of Rights,” in Cameron, J., ed., The Charter’s Impact on the Criminal Justice System (Scarborough: Carswell, 1996), 387.

143 United States of America v. Ross, [1996] 1 S.C.R. 469 [Ross]; United States of America v. Whitley, [1996] 1 S.C.R. 46 [Whitley]; and United States of America v. Jamieson, [1996] 1 S.C.R. 465 [Jamieson].

144 Mandatory minimum sentences are also problematic on human rights grounds because they provide no opportunity for judicial consideration of any mitigating circumstances. The Summer/Fall 2001 issue of volume 39 of the Osgoode Hall Law Journal is devoted to the topic of mandatory minimum sentencing, as is issue 2 of volume 18 (2004) of the Notre Dame Journal of Law, Ethics and Public Policy. See also Harrington, J., “The Challenge to the Mandatory Death Penalty in the Commonwealth Caribbean” (2004) 98 Am. J. Int’l L. 126.

145 The Supreme Court of Canada did not even call on lawyers for the Department of justice to present arguments. Bindman, S., “Fugitives Face Long Terms,” Hamilton Spectator, 17 June 1996, at A2.

146 for comment, see McCann, J. D., “The Role of the Canadian Charter in Canadian Extradition Law” (1997) 30 Cornell Int’l L.J. 139.

147 The same appellate court had previously denied an extradition request on grounds of Canadian nationality in Cotroni, supra note 96. For comment, see Costi, A., “Le refus d’extrader dans les affiares ‘Zein’ et ‘Cotroni’: Decision deraisonable ou violation des obligations internationals du Canada?” (1986) 20 Revue Juridique Themis 485.

148 Michigan case law made it clear that Jamieson stood no realistic chance of establishing substantial and compelling reasons for departing from the minimum sentence. Jamieson (No. 2), supra note 59 at 280–83 (Fish J.A.); and Jamieson (No. 1), supra note 59 at 472–73 (Proulx J.A.).

149 Swardson, A., “Québec Court Finds a U.S. Drug Sentence Shocking to Canadian Sensibility,” Washington Post, 2 September 1994, at A13.

150 See Jamieson (No. 1), supra note 59, leave to appeal denied, (1992) 73 C.C.C. (3d) vi (S.C.C.).

151 See Jamieson (No. 2), supra note 59. For comment, see Leeson, J., “Refusal to Extradite: An Examination of Canada’s Indictment of the American Legal System” (1996) 25 Georgia J. Int’l & Comp. L. 641.

152 Ibid, at 278.

153 Ibid. The Supreme Court of Canada had ruled in Smith v. R., [1987] 1 S.C.R. 1045, that a mandatory minimum sentence of seven years for a narcotics offence was excessive and a violation of the constitutional guarantee to protection against cruel and unusual punishment.

154 Ibid, at 278–79.

155 Ibid, at 280, applying Kindler, supra note 110.

156 Ibid, at 2 68.

157 Ibid, at 269.

158 Ibid, at 268.

159 Jamieson, supra note 143. This decision has since been used to deny an extradition challenge where the extraditee faced “an admittedly harsh sentence” in the United States of two consecutive sentences of sixty years. Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C, 1 at para. 28, leave to appeal denied, [1998] 1 S.C.R. ix [Gwynne].

160 Cotroni, supra note 96 at 1501.

161 Ross, supra note 143.

162 Ross v. United Stales of America (1994), 93 C.C.C. (3d) 500 (B.C.C.A.) at 515 (Lambert J.A.) and 533 (Taylor J.A.). Unlike in Jamieson, evidence was led to suggest that the sentence could be reduced by satisfactory performance in prison.

163 Ibid, at 534.

164 Ibid.

165 Ibid, at 535.

166 Ibid, at 536.

167 Ibid, at 537.

168 Ibid. at 538.

169 Ibid.

170 Ibid. at 539.

171 Ibid. at 516.

172 Ibid. at 524.

173 Ross, supranote 143.

174 Wiltley, supranote 143.

175 Whitley v. United Stales of America (1994), 20 O. R. (3d) 794 (C.A.)at 811 [Whitley 1994].

176 Ibid.

177 Although in criminal cases, the courts have a residual discretion to remedy an abuse of the court’s process this discretion is invoked in only “the clearest of cases,” defined to amount “to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it war-rantsjudicial intervention.” R. v. Power, [1994] 1 S.C.R. 601 at 615–16 [Power].

178 Whitley 1994, supra note 175 at 812.

179 Ibid, at 813.

180 Ibid.

181 Whitley, supra note 143.

182 Within three months of the March 1996 rulings, six fugitives had been surrendered and another forty were being sought from Canada who faced mandatory minimum sentences in the United States. Bindman, supra note 145.

183 United States of America v. Leon, [1996] 1 S.C.R. 888 [Leon].

184 United States of America v. Leon (1995), 96 C.C.C. (3d) 568 (Ont. C.A.) at 574.

185 Ibid, at 575.

186 Ibid.

187 Cotroni, supra note 96 at 1498.

188 Leon, supra note 183 at para. 1.

189 Ibid at para. 10.

190 Burns, supra note 10.

191 Canada, Department of justice, “Extradition of Atif Ahmad Rafay and Glen Sebastian Burns to the United States of America,” press release (12 July 1996).

192 United States of America v. Burns (1997), 116 C.C.C. (3d) 524 (B.C.C.A.) at para. 31.

193 Ibid, at para. 54.

194 After all, a life sentence without parole would also frustrate a citizen’s right of return to Canada.

195 The government sought leave to appeal the decision in 1997 because of a concern that a requirement to seek assurances “may serve as a serious limitation on ministerial discretion.” Canada, Department of justice, “Attorney General of Canada Seeks Leave to Appeal to the Supreme Court of Canada,” press release (18 July 1997). The first hearing of the appeal took place on 2 2 March 1999. A rehearing took place on 23 May 2000, following the retirements of Lamer C.J.C, and Cory J. and the appointments of Arbour and Le Bel JJ.

196 Burns, supra note 10 at para. 36.

197 Ibid.

198 Ibid, at para. 8.

199 Ibid, at para. 8 and again at para. 65.

200 Ibid, at para. 38.

201 Ibid, at para. 95 ff.

202 Ibid, at para. 144. Many, however, view Burns as effectively overruling Kindler (see, for example, Haigh, R., “A Kindler, Gentler Supreme Court? The Case of Bums and the Need for a Principled Approach to Overruling” (2001) 14 S.C.L.R. (2d) 139)—a position with which the court now agrees (see R. v. Henry, [2005] 3 S.C.R. 609 at para. 44).

203 Burns, supra note 10 at paras. 64–65.

204 Ibid, at para. 68.

205 Ibid, at para. 69.

206 Ibid, at para. 84.

207 The court also drew support from concerns in the United States about the death penalty’s imposition, including concerns expressed after the hearing of the case and thus without submissions by counsel. Ibid, at para. 105 ff.

208 Ibid, at para. 131.

209 Within a month of the decision, an assurance was provided by the US prosecutor, securing the surrender of the two accused. Dunn, M., “Ottawa Set to Extradite Fugitives,” London Free Press, 10 March 2001, at A10. Both were convicted of murder in May 2004 and sentenced to three consecutive life terms. Johnson, T. and Castro, H., “Rafay, Burns are Convicted of Murder,” Seattle Post-Intelligencer, 27 May 2004, at A1; Green, S. J., “Burns, Rafay Sentenced to Three Life Terms,” Seattle Times, 23 October 2004, at B2.

210 Soering, supra note 7. Compare Burns, supra note 10 at para. 53 to Kindler, supra note 110 at 856. Soering is also discussed in Burns at paras. 119 and 137. For a comparison of Kindler and Soering, written prior to Burns, see Kobayashi, A. Mori, “International and Domestic Approaches to Constitutional Protections of Individual Rights: Reconciling the Soering and Kindler Decisions” (1996) 34 Am. Grim. L. Rev. 225.

211 Burns, supra note 10 at para. 54.

212 Kindler and Ng, both supra note 139.

213 See further Harrington, J., “The Absent Dialogue: Extradition and the International Covenant on Civil and Political RightsQueen’s Law Journal (forthcoming).

214 United States of America v. Cobb, [2001] 1 S.C.R. 587 [Cobb]; United States of America v. Schulman, [2001] 1 S.C.R. 616; and United States of America v. Tsioubris, [2001] 1 S.C.R. 613. A fourth case concerning different facts was also heard with these appeals and its judgment was released concurrently. Kwok, supra note 21.

215 Cobb, supra note 214 at para. 8. Concern was also expressed about remarks made by a US judge about their sentences, although the court (at para. 17) found these statements to be somewhat ambiguous.

216 Ibid, at para. 33.

217 Ibid, at para. 42 [emphasis added].

218 Followed a year later by the denial of leave to appeal a one-page ruling by the Ontario Court of Appeal that stated without qualification that “it is not a violation of s. 7 rights to surrender the appellant to the United States to face a mandatory minimum sentence for a drug offence.” United States of America v. Johnson, [1997] O.J. No. 3778, leave to appeal denied, [1997] S.C.C.A. No. 578.

219 See, for example, United States of America v. Bonamie (2001), Alta. L.R. (3d) 252 (C.A.); United States of America v. Reumayr (2003), 176 C.C.C. (3d) 377 (B.C.C.A.), leaves to appeal denied, [2005] S.C.C.A. No. 474 and [2005] S.C.C.A. No. 520 [Reumayr]; United States of America v. J.H.K. (2002), 165 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal denied, [2002] S.C.C.A. No. 501 [J.H.K.]; and United States of America v. D.P.R. (2003), 185 O.A.C. 345.

220 As the Ontario Court of Appeal recognized with reference to the Toronto (Don) Jail, , “crowded and adverse conditions [are] all too typical of holding jails.” Adam v. United States of America (2003), 64 O.R. (3d) 268 at para. 5 (C.A.) [Adam] — a situation made worse by the length of time spent in such jails awaiting an extradition decision.

221 As noted by the court in Adam, ibid, at para. 34 and endorsed by the Supreme Court of Canada in Ferras, supra note 27 at para. go. However, in United States of America v. Johnson (2002), 62 O.R. (3d) 327, the Ontario Court of Appeal did hold that the minister must consider this time as a factor to balance.

222 Soering, supra note 7. The court has since held that poor conditions of detention, even in states suffering economic difficulties, violate the European treaty’s absolute prohibition on degrading treatment. Kalashnikov v. Russia, No. 47095/99, E.C.H.R. 2002-YT, (2003) 36 E.H.R.R. 34.

223 See Reumayr, supra note 219 at para. 29 and J.H.K., supra note 219 at para. 42.

224 Southin J.A. in dissent in Gwynne, supra note 159, would have refused extradition on the ground that the conditions in Alabama prisons were so appalling when combined with the length of sentence as to be fundamentally unacceptable. She, and two other justices, have since confirmed in a subsequent case that the Alabama prison conditions were “inhumane.” Reumayr, supra note 219 at para. 28. See also Etals-Unis d’Amérique c. Chipilsyn (17 June 1999) (Qué. C.A.), leave to appeal denied, [1999] C.S.C.R. no. 432. For an American perspective in regard to women and juvenile prisoners, see Sharfstein, D. J., “Human Rights beyond the War on Terrorism: Extradition Defenses Based on Prison Conditions in the United States” (2002) 42 Santa Clara L. Rev. 1137.

225 Weiss v. Austria, No. 7451 1/01 (13 (une 2002).

226 Weiss v. Austria, UN Doc. CCPR/C/77/D/1086/2002 (views adopted 3 April 2003), later published in Report of the Human Rights Committee, UN Doc. A/58/ 40 (2003), vol. II, annex V.FF and (2003) 10 I.H.R.R. 685.

227 Zagaris, B., “US Court Denies US Government Weiss Re-sentence Motion Despite Austrian Conditions” (2002) 18(10) Int’l Law Enforcement Rep. 402.

228 See Armstrong, supra note 65 and the associated discussion.

229 Extradition Act, supra note 1 at ss. 32–34.

230 For a fuller argument as to why the new evidentiary provisions are contrary to principles of fundamental justice, see La Forest, A. W., “The Balance between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings” (2002) 28 Queen’s L.J. 95. In my view, however, the very balanc-ing of liberty against comity long associated with Canadian extradition law is problematic on the grounds that a right to liberty should not be qualified by a mere principle of international comity. Liberty and comity are not equivalent in status and any desire for comity or friendship between nations cannotjustify the impairment of a right as fundamental as liberty in a Charter scheme that operates according to a standard of minimal impairment.

231 See Bourgeon v. Canada (Attorney General) (2000), 187 D.L.R. (4th) 542 (Ont. S.C).

232 United Stales of America v. Yang (2001), 56 O.R. (2d) 52 (C.A.) [Yang].

233 Ibid, at para. 43.

234 Ibid.

235 United States of America v. Wacjman, [2002] Q.J. No. 5097 (C.A.), leave to appeal denied, [2003] S.C.C.A. No. 89; Germany (Federal Republic) v. Ebke (2003), 173 C.C.C. (3d) 261 (N.W.T. C.A.), leave to appeal denied, [2003] S.C.C.A. No. 178; United States of America v. Scott, [2003] O.J. No. 5377 (C.A.), leave to appeal denied, [2004] S.C.C.A. No. 288; United Slates of America v. Drysdale (appeal by Manningham) (2004), 183 C.C.C. (3d) 133 (Ont. C.A.), leave to appeal denied, [2004] S.C.C.A. No. 305; and United Stales of America v. McDowell (2004), 183 C.C.C. (3d) 149 (Ont. C.A.), leave to appeal denied, [2004] S.C.C.A. No. 325. See also Netherlands v. Clarkson (2000), 146 C.C.C. (3d) 482 (B.C.C.A.), leave to appeal denied, [2000] S.C.C.A. No. 482 (30 November 2000), concerning similar evidentiary requirements in the extradition treaty rather than the statute.

236 United States of America v. Ferras (2004), 183 C.C.C. (3d) 1 19 (Ont. C.A.); and United States of America v. Laity (2004), 183 C.C.C. (3d) 126 (Ont. C.A.). These appeals were heard on 17 October 2005. A judgment combining the two appeals was released by the Supreme Court of Canada on 21 July 2006. See Ferras, supra note 27.

237 United States of Mexico v. Ortega, (2005) 253 D.L.R. (3th) 237 (C.A.), leave to appeal granted 20 October 2005, [2005] S.C.C.A. No. 292. Yang, supra note 232, was distinguished in Ortega as being focused on the reliability of evidence under section 32 (1) (a) rather than the certification of evidence under section 32(1)(b). The Supreme Court of Canada released its judgment in Ortega on the same day as its judgments in Ferras and Laity (noted above) and in conjunction with another British Columbia case focussing on the certification of extradition evidence. See United Mexican States v. Ortega; United Stales of America v. Fiessel, 2006 SCC 34.

238 United States of Mexico v. Ortega, (2004) 183 C.C.C. (3d) 75 (B.C.S.C.) at para. 32.

239 See, for example, Schenk v. Switzerland, 12 July 1988, Series A, No. 140, (1991) 13 E.H.R.R. 242 at para. 46: “While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.” For recent confirmation of this principle, see Storck v. Germany, 16 June 2005, No. 61603/00 (ECtHR) at para. 134.

240 See also Harrington, J., “How Canadian Lawyers Can Contribute to the Effectiveness of the UN Human Rights Committee,” in The Measure of International Law: Effectiveness, Fairness and Validity: Proceedings of the 3 Pl Annual Conference of the Canadian Council on International Law, Ottawa, October 24-26, 2002 (London: Kluwer Law International, 2004), 132.

241 The flagrant denial test with respect to the right to a fair trial and extradition can be found in Soering, supra note 7 at para. 113. This test was recently confirmed by the European Court of Human Rights, sitting as a Grand Chamber, in Mamatkulov and Askarov v. Turkey, 4 February 2005, Nos. 46827/99 and 46951/99, (2005) 41 E.H.R.R. 25, (2005) 44 I.L.M. 759 at paras. 86–91.

242 As La Forest J. stated in Mellino, supra note 70 at 558: “Our courts must assume that he will be given a fair trial in the foreign country. Matters of due process generally are to be left for the courts to determine at the trial there as they would be if he were to be tried here” [emphasis added].

243 Ferras, supra note 27 at para. 20.

244 Ibid, at para. 34.

245 Ibid, at para. 41.

246 Canada (Minister of Justice) v. Pacificador, [2002] S.C.C.A. No. 390 (20 February 2003).

247 Canada (Minister of Justice) v. Pacificador (2002), 60 O.R. (3d) 685 (C.A.).

248 Pacificador v. Cemada (Minister of Citizenship and Immigration), [2003] F.C. 1462.

249 Ibid, at para. 73.

250 As recognized by the Ontario Court of Appeal in Pacificador (Ont. C.A.), supra note 247 at para. 7.

251 Burgos, N. P., “Pacificador Cleared of Javier Murder,” Philippine Daily Inquirer, 13 October 2004, at 1.

252 See, for example, van den Wyngaert, supra note 8; and Swart, supra note 37.

253 Cobb, supra note 214 at para. 24, relying on Burns and Schmidt.

254 R. v. Cook, [1998] 2 S.C.R. 597 at paras. 23-48 (concerning the use of evidence obtained abroad after an extradition from the United States to Canada).

255 Schmidt, supra note 69 at 518.

256 ECHR, supra note 9.

257 Soering, supra note 7.

258 ICCPR, supra note 5.

259 Kindler and Ng, both supra note 139.

260 See Castel and Williams, supra note 12 at 271–77.

261 ICCPR, supra note 5; and UNCAT, supra note 6.

262 The changes to the Canada-U.S. Extradition Treaty prompted by the revision of Canada’s Extradition Act in 1999 also illustrate the possibility of treaty amendment: supra note 51.

263 Schmidt, supra note 69 at 522.

264 Burns, supra note 10 at para. 68, reflecting the position taken in Soering, supra note 7.

265 With the exception of Pacificador, supra note 246, although the requesting state involved had reinstated the death penalty, prompting Canada to seek an assurance. See “Minister of justice Orders Surrender of Rodolfo Pacificador to the Republic of the Philippines,” supra note 57.

266 Others have also called for the direct application of section 12 in extradition challenges, invoking in support the analysis of Cory J. in Kindler. See Currie, R. J., “Charter without Borders? The Supreme Court of Canada, Transnational Crime and Constitutional Rights and Freedoms” (2004) 27 Dalh. L.J. 235.

267 While the court has now accepted, unlike in Kindler, that the administration of the death penalty inevitably leads to lengthy delays and an associated psychological trauma, it has also held that “the death row phenomenon is not a controlling factor in the section 7 balance.” Burns, supra note 10 at paras. 1 21-23. It remains, however, “a relevant consideration,” with La Forest J. conceding in Kindler, supra note 110 at 838, with a nod to Soering, supra note 7, that “there may be situations where the age or mental capacity of the fugitive may affect the matter.”

268 Comparative European jurisprudence would suggest that this is no longer the case now that Canada has acceded, as of 25 November 2005, to the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 29 December 1989, GA Res. 44/128, UN Doc. A/44/49 (1989) at 207 (in force 11 July 1991). This factor was not in existence for consideration in Burns, supra note 10.

269 Suresh v. Canada, [2002] 1 S.C.R. 3 [Suresh].

270 Ibid, at paras. 1 and 5 [emphasis added].

271 Ibid, at para. 58 [emphasis added].

272 As recognized in Suresh, ibid, at paras. 67–68 and para. 75.

273 ICCPR, supra note 5.

274 See Concluding Observations of the Human Rights Committee: Canada, UN Doc. CCPR/C/79/Add.105 (7 April 1999) at para. 13.

275 Suresh, supra note 269 at paras. 76–78.

276 Schmidt, supra note 69; Mellino, supra note 70; and Allard, supra note 71.

277 As noted by Spencer, supra note 112 at 70. La Forest’s need for consistency in application seems inconsistent with his suggestion that the extradition context requires a slightly different approach to the Charier from that taken in domestic criminal matters.

278 Hurley, supra note 58.

279 Ibid, at paras. 44–45. The minister had, however, already recognized the climate of hostility towards homosexuals in Mexico and granted the extradition on condition of certain protections. See “Minister of justice Orders Surrender of Denis Hurley to Mexico,” supra note 57.

280 Republic of the Philippines v. Pacificador (1993), 14 O.R. (3d) 321 at 338 (C.A.), leave to appeal on other grounds denied, [1994] 1 S.C.R. x (28 April 1994).

281 See Shearer, supra note 3 at 94–131.

282 See further Castel and Williams, supra note 12 at 266–68.

283 Ibid.

284 As first established in Rauca, supra note 98, and endorsed by La Forest J. in Schmidt, supra note 69 at 520 as follows: “Section 6 was not raised in this case, though Schmidt is a Canadian citizen, no doubt because her counsel believed, as I do, that it was properly disposed of in the Rauca case.”

285 Cotroni, supra note 96.

286 Ibid, at 1497–98.

287 Kwok, supra note 21 at para. 61.

288 As stated in Kwok, supra note 21 at para. 93, citing Burns, supra note 10; Idziak, supra note 31; Whitley, supra note 175; Schmidt, supra note 69; Gwynne, supra note 159; and Power, supra note 177.

289 See Leon, supra note 183; Power, supra note 177; and Kwok, supra note 21.

290 Kwok, supra note 2 1 at para. 94.

291 A similar call for the court to make greater reference to international human rights material was made by Micheli, supra note 8 at 229.

292 Ng, supra note 139 at para. 8.4. See also Cox. v. Canada, UN Doc. CCPR/C/52/ D/539/1993 (views adopted 31 October 1994), published in Report of the Human Rights Committee, UN Doc. A/50/40 (1995), vol. II, annex X.M, 114 I.L.R. 347, (1994) 15 H.R.L.J. 410, (1995) 2 I.H.R.R. 307 at para. 5.4. Canada has since assured the committee that “the Minister of Justice takes into consideration the protection afforded by the Covenant in decisions on extradition requests that raise the issue of the death penalty.” Fourth Periodic Reports of States Parties Due in 1995: Canada (Addendum), UN Doc. CCPR/C/103/Add.5 (15 October 1997) at para. 44.

293 Millennium Summit Multilateral Treaty Framework: An Invitation to Universal Participation (New York: United Nations, 2000).

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