Canlii (Supreme Court of Canada) Constitutional law — Charter of Rights — Fundamental justice – Remedies — Extradition — Whether considerations relating to fundamental justice engaged at committal stage of extradition process — Whether extradition judge ought to have waited for ministerial decision on surrender before granting stay — Canadian Charter of Rights and Freedoms, ss. 7, 24 — Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).
The USA had indicted a large number of defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the Court in Pennsylvania and on sentencing one of them the trial judge had said ‘I want you to believe me that as to those people who don’t come in and cooperate and if we get them extradited and they are found guilty, as far as I am concerned they are going to get the absolute maximum jail sentence that the law permits me to give.’
About a week before the Canadian extradition hearing the American prosecuting attorney was interviewed on Canadian television and said: ‘I have told some of these individuals, ‘look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions’ and describe those conditions to them.’
Asked by the interviewer ‘How would you describe those conditions?’, the attorney replied: ‘You are going to be the boyfriend of a very bad man if you wait out your extradition’. That was understood by the Court to mean that they would be subject to homosexual rape. Asked then: ‘And does that have much of an impact on these people?’, the attorney answered: ‘Well, out of the 89 people we have indicted so far, approximately 55 of them have said, ‘We give up”.
Held: The appela was alloed, and te extradition process was stayed.
Arbour J said: ‘By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign state has disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed. The intimidation bore directly upon the very proceedings before the extradition judge . . [The judge] was also correct in concluding as he did that this was one of the clearest of cases where to proceed further with the extradition hearing would violate ‘those fundamental principles of justice which underlie the community’s sense of fair play and decency’ (Keyowski [1988] 1 SCR 657, 658-659), since the requesting state in the proceedings, represented by the Attorney General of Canada, had not repudiated the statements of some of its officials that an unconscionable price would be paid by the appellants for having insisted on exercising their rights under Canadian law.’
As to the argument based on the appellants not in fact having been dissuaded from exercising their procedural rights: ‘I find no merit in this argument. It may very well be that the threats of the severe and illegal consequences that may follow their resistance to extradition may have made the appellants more, not less, determined to resist their surrender. Frankly, this would have been quite understandable. The abuse of process here consists in the attempt to interfere with the due process of the court. The success or failure of that interference is immaterial.’
Judges:
McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Citations:
[2001] 1 SCR 587, (2001) 197 DLR (4th) 46, (2001) 152 CCC (3d) 270, (2001) 41 CR (5th) 81, (2001) 81 CRR (2d) 226, (2001) 145 OAC 3
Links:
Jurisdiction:
Canada
Cited by:
Cited – McKinnon v The United States of America and Anotherr HL 30-Jul-2008
The appellant sought to avoid extradition to the US. He had hacked into 97 US government computers. He argued that the punishment he might expect in the US was completely disproportionate to the offence, and that he had been misled into entering . .
Lists of cited by and citing cases may be incomplete.
Extradition, Constitutional
Updated: 30 November 2022; Ref: scu.272792
