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Bench can refuse extradition on lack of evidence

|Written By Helen Burnett

In two recent joint appeal judgments, the Supreme Court of Canada ruled that sections of the Extradition Act are constitutional, and concluded that extradition judges have the option to refuse to extradite if there is insufficient evidence.

Lorne Waldman says the extradition rulings from the SCC 'affirm the right of a judge to refuse committal if the evidence is insufficient.'
The first judgment, United States of America v. Ferras and United States of America v. Latty, issued on July 21, was an appeal for the extradition of one individual to the United States for alleged fraud charges and two individuals for alleged trafficking in cocaine. The second, United Mexican States v. Ortega and United States of America v. Fiessel, issued on the same day, involved an appeal for extradition for alleged fraud to Mexico in the case of one appellant and to the United States in the cases of two others.

The individuals involved claimed that ss. 32(1)(a) and 33 of the Extradition Act infringe upon s. 7 of the Canadian Charter of Rights and Freedoms "because they allow for the possibility that a person might be extradited on inherently unreliable evidence."Sections 32(1)(a) and (b) and 33 of the Extradition Act permit the extradition judge to act on the record of the case or evidence adduced pursuant to a treaty with another country.

Extradition judges had rejected these claims and committed Shane Tyrone Ferras, Leroy Latty, Lynval Wright, (Jose) Raul Monter Ortega, Robert Shull, Terry Shull, and Leonard Fiessel for extradition, which they then appealed. The Ontario Court of Appeal upheld the extradition judges' decisions.

The Supreme Court dismissed their appeals, and ruled that the sections of the Extradition Act do not violate s. 7, which guarantees that no one may be deprived of liberty except in accordance with the principles of fundamental justice.

"The records submitted by the U.S. against the accused contained sufficient admissible evidence that a reasonable jury, properly instructed, could convict had the conduct occurred in Canada," said the decision.

In the ruling, penned by Chief Justice Beverley McLachlin, the court also raised the wider issue of the role of the extradition judge in considering evidence, noting that "admissible evidence alone cannot be sufficient to justify committal in the extradition context."

"Most fundamentally, it depends on a judicial process conducted by a judge who has the discretion to refuse to commit the subject for extradition on insufficient evidence," wrote McLachlin for a unanimous nine-member panel.

The decision referred to a 1977 SCC case, United States of America v. Shephard, which had concluded that "the extradition judge has no discretion to refuse to extradite if there is any evidence, however scant or suspect, supporting each of the elements of the offence alleged." McLachlin noted that this approach should not be applied in extradition matters.

"It follows that the extradition judge must judicially consider the facts and the law and be satisfied that they justify committal before ordering extradition. The judge must act as a judge, not a rubber stamp," says the ruling.

Toronto lawyer Lorne Waldman says the Supreme Court has "affirmed the right of a judge to refuse committal if the evidence is insufficient."

"What it basically does, it allows the judge to look beyond the record of the case that is
submitted, certified by the foreign state, to look at the reliability of the evidence certified," he adds.
"I think that's something that hadn't been clear before and I think that it is significant because it restores some of the balance to the extradition process that had existed in the prior legislation," he says.

The extradition process is two-fold, according to the Extradition Act, with the first step involving an extradition judge who examines the request for extradition as well as the supporting material to "determine whether sufficient evidence exists to justify committal for trial in Canada." If this test is met, the process then goes before the Minister of Justice, who decides whether or not to extradite the individual.

"I conclude that to deny an extradition judge's discretion to refuse committal for reasons of insufficient evidence would violate a person's right to a judicial hearing by an independent and impartial magistrate — a right implicit in s. 7 of the Charter where liberty is at stake," wrote McLachlin.

"It would deprive the judge of the power to conduct an independent and impartial judicial review of the facts in relation to the law, destroy the judicial nature of the hearing, and turn the extradition judge into an administrative arm of the executive. The process of assessing whether all the boxes are ticked and then ordering committal is not an adjudication, but merely a formal validation," she wrote.

"This clarifies the law with respect to the role of an extradition judge and I think indicates that the extradition judge has a wider role in the evaluation of the evidence than had been previously thought under the new Extradition Act," says Waldman.

"It opens the door to the judge to look at the record of the case, to evaluate the reliability of the evidence and to exclude evidence that has been obtained in an abusive fashion," he adds.

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