Canada and the United States extradition works through a treaty in force since 1976 that lets either country ask the other to hand over a person wanted for a serious crime. In Canada, the request runs through three phases: the Minister of Justice reviews the request and authorizes proceedings, a superior court judge decides whether the person should be committed for surrender, and the Minister makes the final surrender decision. The whole process can take months or years, and there are specific grounds on which Canada must or may refuse.
What Conduct Can Trigger Extradition
The treaty uses a dual criminality test. The conduct alleged must be a crime in both countries, and it must carry a possible sentence of more than one year of imprisonment on both sides of the border.1Organization of American States. Treaty on Extradition Between the Government of Canada and the Government of the United States of America The two countries do not have to use the same name for the offense. What matters is the behavior.
That covers most serious crimes: homicide, fraud, drug trafficking, money laundering, and terrorism offenses all clear the threshold. Tax and revenue offenses are also extraditable, following the 1988 Protocol that closed the earlier gap.2Organization of American States. Protocol Amending the Treaty on Extradition Between Canada and the United States Anything punishable by less than a year in either country falls outside the treaty.
How the Process Unfolds
Responsibility is split. The Minister of Justice controls the beginning and the end. The courts handle the middle.3Department of Justice Canada. Independent Review of the Extradition of Dr. Hassan Diab – Section: The Extradition Process
The Minister Opens Proceedings
The United States sends a formal request through diplomatic channels. It must describe the offense, provide evidence linking the person to it, and show the conduct satisfies dual criminality. If the Minister is satisfied the request meets treaty requirements, the Minister issues an Authority to Proceed. That document formally launches extradition proceedings in Canada.3Department of Justice Canada. Independent Review of the Extradition of Dr. Hassan Diab – Section: The Extradition Process
A Judge Decides on Committal
The person then appears before a superior court judge for an extradition hearing. The judge is not deciding guilt. For a person sought for prosecution, the question is whether the evidence of the alleged conduct, if it had happened in Canada, would justify sending the case to trial, and whether the person before the court is the person the US wants.4Justice Laws Website (Government of Canada). Extradition Act SC 1999 c 18 – Section 29 For someone already convicted, the judge confirms the conviction matches the offense in the Authority to Proceed. If the test is met, the judge orders committal.
The Minister Decides on Surrender
Once committed, the file goes back to the Minister. The Minister reviews the court’s findings and any submissions from the person sought, then decides whether to order surrender.5Department of Justice Canada. General Overview of the Canadian Extradition Process This is where refusal grounds and Charter arguments carry the most weight.
Arrest, Provisional Arrest, and Bail
In urgent cases the US does not have to wait for the full request to be assembled. Either country can ask for a provisional arrest if there is reason to believe the person might flee. The request must include a description of the person, a statement of intent to seek extradition, and confirmation that a warrant or conviction exists.1Organization of American States. Treaty on Extradition Between the Government of Canada and the Government of the United States of America
There is a deadline. If the formal extradition request and supporting documents are not received within 45 days of the arrest, the person must be released.1Organization of American States. Treaty on Extradition Between the Government of Canada and the Government of the United States of America Release does not stop the US from sending a proper request later.
After arrest, the person is brought before a superior court judge in the province or territory where the arrest happened and can apply for bail.5Department of Justice Canada. General Overview of the Canadian Extradition Process Bail is governed by Part XVI of the Criminal Code, but courts take flight risk in extradition cases seriously. Someone facing removal to another country has an obvious reason to disappear, so release is harder to secure than in an ordinary domestic case.
When Canada Must or Can Refuse
A committal order does not guarantee surrender. The Extradition Act creates both mandatory and discretionary grounds for refusal.
Mandatory Refusal
The Minister must refuse in two situations. First, if surrender would be unjust or oppressive in all the circumstances. Second, if the request was made to prosecute or punish someone based on their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, or mental or physical disability.6Justice Laws Website (Government of Canada). Extradition Act SC 1999 c 18 – Section 44 Neither ground leaves the Minister discretion.
The Minister must also refuse if surrender would violate the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms.5Department of Justice Canada. General Overview of the Canadian Extradition Process
Political Offense
The treaty bars extradition for offenses that are political in nature.1Organization of American States. Treaty on Extradition Between the Government of Canada and the Government of the United States of America The exception has limits. It does not cover offenses under multilateral conventions, murder, kidnapping, hostage-taking, or offenses involving explosives or destructive devices. Attempts or conspiracies to commit any of those are also excluded from the political offense shield.
Expired Limitation Periods
Extradition is denied where the prosecution is time-barred under the requesting country’s law. The request itself has to state the applicable limitation period.1Organization of American States. Treaty on Extradition Between the Government of Canada and the Government of the United States of America
The Death Penalty
Canada abolished capital punishment, so a request for a capital offense creates a Charter problem. The Supreme Court of Canada held in United States v. Burns (2001) that extraditing someone without assurances the death penalty will not be imposed would generally violate the principles of fundamental justice.7Department of Justice Canada. Charterpedia – Section 7 Life Liberty and Security of the Person In practice Canada requires a guarantee that a death sentence will not be sought before surrender. The same reasoning applies where there is a genuine risk of torture.
Does Canadian Citizenship Help
Canada extradites its own citizens. It does not categorically refuse to surrender them the way some countries do. What citizenship adds is a Charter layer: section 6(1) guarantees every citizen the right to remain in Canada, and the Minister must be satisfied that extraditing a citizen does not unjustifiably infringe that right.5Department of Justice Canada. General Overview of the Canadian Extradition Process Canadian citizens are regularly surrendered for serious offenses. The Charter argument is real, but it is rarely a bar on its own.
Protections After Surrender
Once the person is handed over, the US cannot prosecute them for anything other than the offense for which extradition was granted. This is the rule of specialty. If the US wants to add charges for conduct that pre-dated the surrender, it has to go back to Canada for consent. The protection ends if the person stays in the US for 60 days after final discharge without leaving, or if they leave and voluntarily come back.
Challenging the Outcome
A person committed for surrender has recourse. The Minister’s surrender decision can be reviewed by the court of appeal in the province where committal was ordered, which has exclusive jurisdiction over the review. The application has to be filed within 30 days of the decision being communicated, though the court can extend that deadline.8Justice Laws Website (Government of Canada). Extradition Act SC 1999 c 18 – Section 57 The court will not overturn the decision on a technical defect alone unless there was a substantial wrong or miscarriage of justice.
These reviews can be slow. Cases turning on Charter rights, the sufficiency of the evidence at committal, or the Minister’s exercise of discretion have taken years to work through the appellate courts, which is why the total timeline from arrest to actual surrender is measured in months at the fast end and years at the slow end.