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Executive and judicial discretion in extradition between Canada and the United States Botting, Gary Norman Arthur

Abstract

This dissertation examines the historical development of judicial and executive discretion in successive extradition treaties, statutes and cases in Canada and the United States, and the ways in which extradition law has shifted from an initial emphasis on judicial discretion to a marked emphasis in recent years on executive discretion. In particular, Canada's Extradition Act (1999) delineates a relationship between the executive and judiciary in which most discretionary decision-making powers are assigned to the Minister of Justice rather than to the courts. Under the new legislation, which is largely a codification of the several opinions of LaForest J. of the Supreme Court of Canada, superior court judges, despite all their experience and training in the law, are put in the position of administrative clerks with little or no significant judicial discretion. It is argued that by granting increased powers to the Minister, the Act compels both the Minister and the courts of appeal to exercise their discretion more often, more carefully and more fairly than they have used it in the past in considering whether to order surrender for extradition from Canada to the United States. Judicial review should be considered an automatic part of the extradition process. Indeed, where the Minister fails to exercise discretion with respect to areas that traditionally have fallen under his domain - such as the discretion to refuse extradition without assurances that the death penalty will not be sought, or to refuse extradition in light of abuse of process - the Supreme Court of Canada has of late shown a willingness to use judicial review to halt extradition. Given the recalcitrance of the Minister to use his expanded discretion, the Act may need to be redrafted to grant back to extradition judges discretionary powers that they traditionally enjoyed, including the power to assess whether the conduct underlying charges brought in an extradition request are of a political character.

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