Hacking suspect’s extradition process far from simple
A look into Canada’s procedure for sending someone to another country for trial, sentencing
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 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, the federal government can also enter into a onetime “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.
“It’s not a question of guilt or innocence. It is essentially the same test that is used at a preliminary inquiry in Canada.” JOHN NORRIS UNIVERSITY OF TORONTO LAW SCHOOL
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 for- eign 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,” Norris said. “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,” Norris said.
“(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.
Both Canadian and U.S. officials declined to 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 WilsonRaybould will have until June 12 to issue an authority to proceed.