Extradition from Canada
I wrote a piece for The Daily Star, entitled "Extradition of the Fugitives" (October 28) summarising the processes needed to be followed in extraditing the fugitives from Canada. Following the Bangladesh law minister's visit to Canada last month, a piece on the lone fugitive's deportation appeared in the news daily Ottawa Citizen on December 4. The piece was written by Randy Boswell and Jorge Barrera of Canwest News Service.
The authors of the piece dwelt on the legal complications in deporting a fugitive to a country with prevalent death penalty. It mentioned two possible obstacles in deporting the fugitive in question. Firstly, it cited the ruling of Canada's Immigration and Refugee Board that said: "In cases where the death penalty is a possibility, the government will seek assurances from the country to which the person is being returned that, if found guilty and convicted, the death penalty will not be imposed." Secondly, it referred to a Canadian Supreme Court Ruling (February 2001) "that direct the government -- in all but the most exceptional circumstances -- not to surrender murder suspects to foreign countries where capital punishment is still legal."
The current piece is an exercise to elaborate the jurisdiction and the context of the above two citations and how much they are pertinent to the concerned fugitive. Firstly, the Immigration and Refugee Board of Canada (IRB) is an independent administrative tribunal. It is responsible for making well-reasoned decisions on immigration and refugee matters. In IRB, the fugitive Nur Chowdhury faced a string of defeats in 2002, 2004, 2005 and 2006.
From this perspective, the IRB's observation against his deportation is self-contradictory since no one is allowed to stay in this country without any legal status. Moreover, IRB is not a judicial body and as such its decisions and observation have no legal binding on the executive branch of the government. The person appearing before the IRB, the minister of citizenship and immigration, or the minister of public safety may apply to the Federal Court of Canada for a judicial review of an IRB decision.
Secondly, the Supreme Court ruling of February 2001 (SCR283) was not categorical and has to be interpreted in proper context. It was a case between the minister of justice versus Burns and Rafay while Amnesty International was an intervener. The respondents were each wanted on three counts of aggravated first degree murder in the State of Washington. If they were found guilty, they would face either the death penalty or life in prison without the possibility of parole.
The respondents were both Canadian citizens when the father, mother and sister of the respondent Rafay were found bludgeoned to death in their home in Bellevue, Washington, in July 1994. United States authorities commenced proceedings to extradite the respondents to the State of Washington for trial.
The minister of justice for Canada, after evaluating the respondents' particular circumstances, ordered their extradition pursuant to Section 25 of the Extradition Act without seeking assurances from the United States under Article 6 of the extradition treaty between the two countries that the death penalty would not be imposed, or, if imposed, would not be carried out.
Section 25 of the Extradition Act allows broad ministerial discretion on whether to surrender a fugitive, and if so, on what terms. In respect of seeking assurances under Article 6 of the treaty, the minister took the position that assurances were not to be sought routinely in every case in which the death penalty was applicable; such assurances should be sought only in circumstances where the particular facts of the case warranted that special exercise of discretion.
In the Court's opinion, although it was generally for the minister, not the court, to assess the weight of competing considerations in extradition policy, the availability of the death penalty opened up a different dimension. So the Supreme Court observed that "the death penalty is a justice issue and is only marginally a mobility rights issue." Citing section 6 of the Charter of Freedoms and Rights, the Supreme Court further opined that "unconditional extradition therefore leads to the conclusion that assurances are constitutionally required in all but exceptional cases."
The court, however, did not elaborate on the qualifications of "exception cases" (interpreted by legal experts to be crimes against humanity). However, Section 6 of the Charter involves only Canadian citizens and states: "Every citizen of Canada has the right to enter, remain in and leave Canada." In 1991, extradition without assurances of two non-Canadians (Kindler and Ng) was declared valid by the Supreme Court (SCR779 and SCR858) that noted: "While Canada itself had abolished the death penalty, Canada should respect that most other countries had not."
The authority of the minister under Section 25 is predicated on the existence of an extradition treaty, which Bangladesh at this moment does not have with Canada. To expedite the process, however, Bangladesh has the option (according to the 1999 amendment of the Extradition Act) of signing a multilateral convention or a person-specific agreement that may not include the "assurance clause" as it was implicitly ruled redundant as per two separate 1991 rulings of the Supreme Court of Canada for two non-Canadians.
Moreover, the crime in question, no doubt, falls in the category of "crime against humanity" (exceptional cases). At the end, it boils down to the "ministerial discretion," which the constituents of this great democracy and the efforts of the Canadian citizens of Bangladeshi origin, can greatly influence -- if they are sought for and involved by the government of Bangladesh.