We started by mentioning that there are three phases, but there is a possible preliminary phase, which is a request for a provisional arrest warrant. The Extradition Act and Canada's extradition agreements allow parties to apply for provisional arrest under urgent circumstances in order to avoid the flight of a particular person.
In such circumstances, the provisional arrest, if it's approved through the issuance of an authority to arrest, precedes the other three steps. The material submitted to Canada by the requesting state in support of a request for provisional arrest is reviewed by the IAG, the international assistance group, acting on behalf of the minister. The IAG determines whether there is sufficient basis to proceed with this provisional arrest request and, if so, proceeds to request from a judge the issuance of a warrant.
A provisional arrest warrant may be issued by a superior court judge if he or she is satisfied that there are grounds of urgency, the person is in Canada or on their way to Canada and a warrant for the person's arrest has been issued in the requesting state. Where a person has been provisionally arrested, the requesting state must submit a formal request for extradition within a specific period of time following the provisional arrest, and that period is specified in the applicable treaty. Otherwise, the person must be discharged from the extradition process.
When a formal extradition request is received, it is reviewed by the IAG to determine if it meets the requirements of the Extradition Act and the treaty. In assessing whether an authority to proceed should issue, the IAG will check that the request concerns extraditable conduct within the meaning of section 3 of the act. This means that the party seeking detention is an “extradition partner”; that the person is being sought for prosecution or for the imposition of a sentence; that, subject to a relevant extradition agreement, the foreign offence in respect of which the extradition is requested is punishable by the extradition partner by imprisoning or otherwise depriving them of their liberty for a maximum term of two years or more; and that the alleged criminal conduct, had it occurred in Canada, would have constituted an offence in Canada.
As a matter of practice, the IAG also examines whether the request is likely to be successful at the extradition hearing and before the minister by looking at factors that are taken into consideration at those stages, such as the sufficiency of the evidence and the country conditions in the requesting state. If the IAG does issue the authority to proceed, this authorizes the commencement of the extradition proceedings before a superior court judge in the province where the person is located. The authority to proceed constitutes the authority of the judge to embark upon the hearing.
The extradition hearing, which is also known as a committal hearing, takes place before a superior court judge, who must decide whether to commit the person for extradition based on the evidence provided by the requesting state. Counsel for the Attorney General of Canada will file this evidence before the court at the hearing, normally in the form of something called “the record of the case”, which is a certified summary of the evidence available in support of extradition. This is also provided to the person sought, in advance of the hearing. As Canada has an open court system, all materials filed before the courts are generally available to the public unless otherwise ordered by the court.
At the hearing, the judge decides if the evidence presented on behalf of the requesting state by the Attorney General of Canada would justify a committal for trial in Canada had that conduct taken place here. This is known as the double criminality test. If the judge is satisfied that the evidence meets this test, he or she will order the person committed for extradition and the matter will move on to the ministerial phase. If the judge discharges the person from the extradition process, that concludes the proceedings.
At the committal hearing, the counsel for the person sought may bring various motions, raise objections and seek additional time to prepare, all of which makes it difficult to predict how long any given extradition hearing will take to run its course.
Once the extradition hearing is concluded, if there's a committal it moves on to the ministerial phase, where the Minister of Justice must personally determine whether to order the person surrendered to the requesting state. The grounds on which the minister may order or refuse surrender derive from three sources: the Extradition Act, the relevant treaty or agreement and the Canadian Charter of Rights and Freedoms. Counsel for the person sought for extradition may choose to make written confidential submissions to the minister to assist him in making his decision. These submissions may be in respect of any ground that might justify a refusal of surrender or justify placing a condition on an order of surrender.
The submissions made to the minister are not public, unless the minister orders the person's surrender and that person then seeks a judicial review of the decision. Then it would be filed in court.