Expanding the Role for the Minister of Foreign Affairs in a World of Conditional Extradition

Abstract

The imposition of conditions on extradition and the judicial acceptance of the use of assurances to address risks of unfair treatment or an unfair trial in a foreign state leads to a need to expand the role for the Minister of Foreign Affairs in matters of extradition. Using extradition from Canada as an example, this article recognizes that arguments of speed and efficiency have long given the Minister of Justice the determinative role in deciding whether a wanted person should be surrendered to another state. This concentration of power has not, however, sped up extradition in controversial cases, such as those concerning the extradition of Canadian citizens many years after the commission of the alleged crimes, and those involving crimes of a transnational nature that could be prosecuted in either Canada or another state. With the use of conditions and assurances as the means to improve the fairness of extradition, there is a need to make use of the expertise that resides within a foreign ministry to determine their content, appraise their credibility and reliability, and monitor their post-extradition performance. Amending the Extradition Act to require the justice minister to consult with the foreign affairs minister after the receipt of an extradition request and before ordering surrender is a recommended reform.