Contemporary developments in extradition law culminating in the new Extradition Act mirror equally intriguing historical developments in Canada-U.S. extradition law and practice. This thesis examines the process by which each country approached extradition and treaty negotiation, historically and politically, treaty by treaty. It notes the ways in which extradition limped along in times when there was no treaty. It examines the historical background of, and the substantial body of law arising from, the three main treaties that have dealt with extradition between the United States and what is now Canada - the Jay Treaty (1794), the Ashburton-Webster Treaty (1842), and the current Canada-U.S. Treaty (1971). It analyses the legislation which establishes the procedure to be used in extradition cases in Canada, including the new Extradition Act, which received royal assent on 17 June 1999. It looks at the ways in which treaties and legislation have been applied by the courts and by the executive branch of successive governments. It explores and analyses the positions that the courts in Canada have taken with respect to the conflict between individual rights and international obligations. It examines the new Act in the context of relevant case law with a view to anticipating the ways in which it is likely to impact on Canada's extradition policy in the future. Finally, it suggests that in order to preserve individual rights and protections over perceived international obligations, the judiciary will have to take or be granted powers of discretion that are equal to or greater than those enjoyed by the Minister of Justice.

Contemporary developments in extradition law culminating in the new Extradition Act mirror equally intriguing historical developments in Canada-U.S. extradition law and practice. This thesis examines the process by which each country approached extradition and treaty negotiation, historically and politically, treaty by treaty. It notes the ways in which extradition limped along in times when there was no treaty. It examines the historical background of, and the substantial body of law arising from, the three main treaties that have dealt with extradition between the United States and what is now Canada - the Jay Treaty (1794), the Ashburton-Webster Treaty (1842), and the current Canada-U.S. Treaty (1971). It analyses the legislation which establishes the procedure to be used in extradition cases in Canada, including the new Extradition Act, which received royal assent on 17 June 1999. It looks at the ways in which treaties and legislation have been applied by the courts and by the executive branch of successive governments. It explores and analyses the positions that the courts in Canada have taken with respect to the conflict between individual rights and international obligations. It examines the new Act in the context of relevant case law with a view to anticipating the ways in which it is likely to impact on Canada's extradition policy in the future. Finally, it suggests that in order to preserve individual rights and protections over perceived international obligations, the judiciary will have to take or be granted powers of discretion that are equal to or greater than those enjoyed by the Minister of Justice. / Law, Peter A. Allard School of / Graduate

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. / Law, Peter A. Allard School of / Graduate