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Executive and judicial discretion in extradition between Canada and the United States

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
Date05 1900
CreatorsBotting, Gary Norman Arthur
Source SetsUniversity of British Columbia
Detected LanguageEnglish
TypeText, Thesis/Dissertation
Format22838414 bytes, application/pdf
RightsFor non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use

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