Extradition

Canadian extradition proceedings can place liberty, international travel, family life and immigration status at risk. Early advice is essential because decisions made during the investigation and committal stages can shape the entire case.

If you have an extradition matter in Toronto

When you contact us, tell us whether the person sought is in custody, when the next appearance is and what documents have been received. Keep the Canadian court papers, any release order and any notices relating to the foreign request available for counsel.

For a Toronto appearance, use the Toronto courthouse guide alongside the notice or order in your case. Do not assume an extradition appearance is at the same address as a separate criminal matter.

The extradition process

Canadian extradition generally proceeds through three stages:

• Authority to Proceed: The Minister of Justice must authorize the case before a committal hearing can proceed.

• Judicial phase: A superior court judge decides whether the evidence meets the Extradition Act test for committal. This is not a criminal trial, and the judge does not decide guilt or innocence.

• Ministerial phase: If the person is committed, the Minister decides whether surrender should be ordered, considering the Act, the applicable treaty, Charter protections and relevant humanitarian circumstances. A committal order may be appealed, and a surrender order may be challenged by judicial review.

The judicial phase: sections 29–37 of the Extradition Act

These provisions govern committal, custody and the evidence the extradition judge may consider. The hearing is an important screening process, but it is not a trial of the foreign charges.

Committal and custody: sections 29–30

Section 29: For a person sought for prosecution, the judge must find admissible evidence of conduct that would justify committal for trial in Canada on the Canadian offence identified in the Authority to Proceed, and must be satisfied that the person before the court is the person sought. Where extradition is sought to impose or enforce a sentence, the judge considers whether the conviction concerns conduct corresponding to that Canadian offence and whether the person is the individual convicted. If the applicable test is not met, the judge must discharge the person.

The Authority to Proceed’s date is the relevant date for this assessment. Subject to the applicable extradition agreement, the prosecution test applies where the person was tried and convicted in their absence. A committal order identifies the person, Canadian offence, place of custody and extradition partner; it is not a finding of guilt.

Section 30: The committal order authorizes detention while surrender is considered, subject to judicial interim release. It remains effective until surrender, discharge or an appellate order for a new hearing. Release before committal should not be assumed to continue unchanged afterward.

Documents and admissibility: sections 31–36

Sections 31–32: A document includes data recorded in any form, photographs and copies. Evidence otherwise admissible under Canadian law may be admitted, together with the specially permitted material in a certified Record of the Case, treaty-compliant documents, and qualifying defence evidence under section 32(1)(c). Evidence gathered in Canada must satisfy Canadian evidentiary rules under section 32(2).

Section 33: For prosecution requests, the Record of the Case summarizes the evidence available to the requesting state. A judicial or prosecuting authority must certify that the evidence is available for trial and either sufficient to justify prosecution under that state’s law or gathered according to that law. Sentence-related requests require the conviction record, a description of the conduct and certification of accuracy by an authorized judicial, prosecuting or correctional authority. The rules also cover supplements. Authentication is unnecessary unless the applicable agreement requires it.

Sections 34–36: Documents need not be sworn or solemnly affirmed. Documents purporting to bear the signature of specified foreign authorities or public officers can be admitted without proof of that signature or official status. Translations into English or French are admissible without further formality. These simplified requirements do not eliminate the judge’s responsibility to assess whether the evidence meets the committal test.

Identity: section 37

A similar name and physical characteristics matching a photograph, fingerprints or another description are evidence of identity under section 37. They do not make identity unchallengeable: the judge must still be satisfied that the person before the court is the person sought or convicted, as the applicable section 29 test requires.

Interim release before and after committal

Extradition bail requires a plan tailored to the proceeding. Under sections 18–19, a judge decides release or detention after arrest, with Part XVI of the Criminal Code applying subject to necessary modifications. Counsel addresses attendance and flight risk, public safety, confidence in the administration of justice and any applicable burden of proof. A review of the release decision is available before a judge of the provincial court of appeal. Requests from the International Criminal Court attract additional statutory restrictions on release.

A proposed release plan may address suitable sureties, supervision, a stable residence, travel-document surrender, reporting and other proportionate conditions. The requesting state’s allegations, international connections and ability to travel must be addressed with evidence rather than assumptions. Citizenship or immigration status alone does not decide the application.

After committal, section 20 applies section 679 of the Criminal Code, with necessary modifications, to release pending a committal appeal, the Minister’s surrender decision or judicial review of that decision. The legal framework changes; counsel must address the applicable merits and public-interest requirements and the person’s willingness to surrender into custody as ordered. Committal does not make release impossible, and an appeal or review does not itself grant bail. Release applications and the timetable for any surrender must be coordinated promptly.

The ministerial phase: submissions and surrender

A separate decision, with strict deadlines

Committal does not automatically lead to surrender. Under section 40, the Minister of Justice personally decides whether to order surrender, ordinarily within 90 days of committal, subject to the Act’s extension and postponement provisions. Section 43 allows the person to make submissions before 30 days have expired after committal. Although late submissions may be accepted where the Minister considers it appropriate, an extension or late acceptance should never be assumed.

Submissions should identify each legal ground, explain how it applies to the individual and include supporting records. Relevant material may include medical evidence, evidence about dependent children and family responsibilities, expert evidence on foreign law or prison conditions, and reliable information about the treatment the person would face. If a refugee-protection claim has been made, section 40(2) requires the Minister to consult the minister responsible for immigration legislation before ordering surrender.

Mandatory and discretionary grounds for refusal

Section 44 requires refusal where surrender would be unjust or oppressive in all the relevant circumstances, or where the request has a prohibited discriminatory purpose or the person’s position may be prejudiced for a protected reason. This is a demanding, individualized assessment, not a guarantee that hardship will prevent extradition. Death-penalty exposure, torture and other serious human-rights risks also require careful Charter analysis; the statutory discretion concerning capital punishment is not the whole legal test.

Subject to the treaty rules in section 45 and statutory exceptions, section 46 addresses mandatory refusal for foreign limitation periods and specified military or political offences. Section 47 provides discretionary grounds involving a previous acquittal or conviction, certain convictions in the person’s absence without an opportunity for review, incompatible treatment of offences committed under age 18, Canadian criminal proceedings concerning the conduct, and certain extraterritorial conduct. Political-offence exceptions have important limits. Special rules apply to International Criminal Court requests.

Assurances, conditions and discharge

Under section 40(3), the Minister may seek assurances or impose conditions, including restrictions on prosecution or punishment for other conduct. Where surrender is conditional, section 40(4) prevents execution until the required assurances are given or conditions agreed to. Defence submissions can seek specific, workable protections addressing the proven risks. If the Minister decides against surrender, section 48 requires discharge.

Appeal and judicial review

A committal appeal and review of a surrender decision are different proceedings. A notice of committal appeal is generally due within 30 days of the judicial decision under sections 49–50. Under section 57, judicial review of the Minister’s surrender decision belongs in the provincial court of appeal—not the Federal Court—and is generally due within 30 days after the decision is first communicated to the person. In Ontario, the court is the Court of Appeal for Ontario. Extensions are discretionary. The court may hear the appeal and review together, but each requires its own legal grounds and attention to the applicable procedure.

Defence strategy

We assess the requesting state’s evidence, identity issues, treaty requirements, double criminality, Charter protections, delay, fairness and the potential consequences of surrender. Criminal, immigration and human-rights consequences may overlap and should be addressed together.

Defence evidence under section 32(1)(c)

Section 32(1)(c) expressly permits the person sought to introduce evidence relevant to the section 29(1) tests where the judge considers it reliable, even if it would not otherwise be admissible under Canadian law, subject to section 32(2). Depending on the record, this may involve reliable identity evidence, documents or appropriately supported expert evidence directed to a missing element, an unreasonable inference or a fundamental defect in the requesting state’s evidence.

The Supreme Court’s decisions in Ferras and M.M. confirm both meaningful judicial screening and its limits. A certified record is presumptively reliable; refusing committal on reliability grounds requires more than a weak case or ordinary credibility disputes. The judge does not choose between competing versions of events or conduct a trial of the foreign charge. Proposed evidence must be tied to the committal test, not simply offered to establish a trial defence. Evidence that cannot properly determine committal may nevertheless matter at the surrender stage.

Ministerial defence opportunities

We prepare the ministerial record early rather than treating it as an afterthought to the hearing. Submissions may address statutory or treaty refusal grounds, Charter protections, health, dependent children, treatment and detention risks, sentencing exposure, and appropriate assurances or conditions. Each point needs reliable evidence and a clear connection to the legal test.

M.M. also recognizes that a defence potentially available in Canada but unavailable in comparable form abroad can be relevant to the Minister. Counsel must establish a substantive difference in the law, a reasonable prospect that the defence would succeed in Canada, and significantly greater jeopardy resulting from its absence abroad. Meeting that threshold engages the overall assessment; it does not automatically require refusal of surrender. Relevant circumstances, including the best interests of affected children, must be weighed together under the demanding unjust-or-oppressive standard.

Our strategy coordinates the committal hearing, section 32(1)(c) evidence, interim release, timely section 43 submissions, requests for assurances, any committal appeal and judicial review. It is important to raise each issue before the decision-maker with the legal power to address it.

Key legal sources

Extradition Act — including sections 18–20, 29–37, 40–48, 50 and 57

United States of America v. Ferras, 2006 SCC 33

M.M. v. United States of America, 2015 SCC 62

This overview concerns extradition from Canada. The applicable agreement, facts and procedural stage may change the available arguments and deadlines. It is general information, not legal advice about a particular case.

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