Ac­cused hacker fo­cus of com­plex process

The Hamilton Spectator - - FRONT PAGE - PETER GOF­FIN

Karim Bara­tov, 22, of An­caster is ex­pected back in court Fri­day

Karim Bara­tov is a Cana­dian cit­i­zen who was liv­ing in An­caster when he was in­dicted by a U.S. court in con­nec­tion with a mas­sive Rus­sian hack­ing scheme.

Amer­i­can author­i­ties have asked for Bara­tov, 22, to be ex­tra­dited to the U.S. to face charges of ag­gra­vated iden­tity theft and con­spir­ing to com­mit fraud. But what does the ex­tra­di­tion process en­tail?

Canada has ex­tra­di­tion treaties with the U.S., most Euro­pean coun­tries and sev­eral other states around the world. Un­der the Cana­dian Ex­tra­di­tion Act, which lays out laws for the process, the fed­eral gov­ern­ment can also en­ter into a one-time “spe­cific agree­ment” to ar­range ex­tra­di­tion for a par­tic­u­lar case.

A for­eign state can ask to ex­tra­dite a Cana­dian cit­i­zen, res­i­dent, or some­one who fled to Canada, for the pur­pose of pros­e­cut­ing a sus­pect, sen­tenc­ing some­one who has al­ready been con­victed, or en­forc­ing a sen­tence that has al­ready been handed down.

To start the process, a for­eign coun­try must make a for­mal re­quest for ex­tra­di­tion to Canada’s min­is­ter of jus­tice.

In cases like Bara­tov’s, where the for­eign coun­try ur­gently wants a per­son in Canada to be de­tained, they make a re­quest for “pro­vi­sional ar­rest,” with an ex­tra­di­tion re­quest to fol­low within a set num­ber of days.

The Depart­ment of Jus­tice must de­ter­mine within 30 days of the re­quest whether the crimes al­leged by the for­eign coun­try would be con­sid­ered crimes in Canada.

“For ex­am­ple, if a coun­try came for­ward and said, ‘We’ve charged this per­son with adul­tery, please send them to us,’ Canada would say, ‘No, be­cause that’s not a crime un­der Cana­dian crim­i­nal law,” said John Nor­ris, an ad­junct pro­fes­sor at the Univer­sity of Toronto’s law school, whose spe­cial­ties in­clude ex­tra­di­tion cases.

“The way the min­is­ter of jus­tice con­trols for that is by ... iden­ti­fy­ing Cana­dian crim­i­nal of­fences that cor­re­spond to the al­le­ga­tions in the for­eign state.”

If the min­is­ter of jus­tice de­ter­mines that al­le­ga­tions would be con­sid­ered crimes in Canada, she is­sues an “author­ity to pro­ceed,” con­tain­ing the cor­re­spond­ing Cana­dian charges, to a Su­pe­rior Court judge.

The judge then over­sees an ex­tra­di­tion hear­ing, at which he or she must de­cide whether the for­eign author­i­ties have enough ev­i­dence to sup­port a case against the ac­cused.

“It’s not a ques­tion of guilt or in­no­cence,” said Nor­ris. “It is es­sen­tially the same test that is used at a pre­lim­i­nary in­quiry in Canada: Is there some ev­i­dence which, if be­lieved by a (judge or jury) would be ca­pa­ble of sup­port­ing the charge?”

At the ex­tra­di­tion hear­ing, a sum­mary of the ev­i­dence is pre­sented by a Cana­dian Depart­ment of Jus­tice lawyer act­ing on be­half of the for­eign coun­try.

If any of the ev­i­dence was gath­ered in Canada, the judge must de­ter­mine whether it was col­lected legally, by Cana­dian stan­dards, Nor­ris said. “Say there was a war­rant­less search of some­body’s house and there was a breach of the char­ter, the ex­tra­di­tion judge could say, ‘You can’t use that ev­i­dence as part of this case,’” he added.

If the judge rules that the ev­i­dence was legally col­lected and could sup­port a trial, he or she will or­der a “com­mit­tal for ex­tra­di­tion.”

The case is then handed back to the min­is­ter of jus­tice, who de­cides whether to ac­tu­ally sur­ren­der the re­quested per­son to the for­eign state.

The de­fence can make sub­mis­sions to the min­is­ter, out­lin­ing rea­sons why the de­fen­dant should not be handed over, or what con­di­tions should be at­tached to the sur­ren­der agree­ment.

“It’s very rare for the min­is­ter to refuse to sur­ren­der some­body, but there are a num­ber of con­sid­er­a­tions they have to weigh,” said Nor­ris. “(If ) the per­son faces the death penalty, Cana­dian law re­quires the min­is­ter to get an as­sur­ance from the re­quest­ing coun­try that the death penalty ... would not be sought or im­posed.”

The min­is­ter could also ask for as­sur­ances that other un­just or op­pres­sive forms of pun­ish­ment will not be used against the per­son, he said.

If the per­son be­ing re­quested for ex­tra­di­tion is a Cana­dian cit­i­zen, the min­is­ter must also de­ter­mine whether the ex­tra­di­tion is a “rea­son­able limit” on the cit­i­zen’s right to re­main in Canada, as granted by the Char­ter of Rights and Free­doms, Nor­ris added.

“If some­body fights a case from be­gin­ning to end, you could be look­ing at sev­eral years, but I think it’s rare.”

The United States had un­til May 12 to file a for­mal ex­tra­di­tion re­quest for Bara­tov, said Depart­ment of Jus­tice spokesper­son Ian McLeod.

Nei­ther Cana­dian nor U.S. of­fi­cials would com­ment on whether a re­quest was filed by the dead­line.

Bara­tov is sched­uled to ap­pear in court on May 26, when Cana­dian author­i­ties will pro­vide a sta­tus up­date, McLeod said.

Min­is­ter of Jus­tice Jody Wil­son-Ray­bould will then have un­til June 12 to is­sue an author­ity to pro­ceed.

THE CANA­DIAN PRESS

Karim Bara­tov, 22, is wanted in the U.S. on iden­tity theft and fraud charges.

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