Extradition, Assurances and Human Rights: Guidance from the Supreme Court of Canada in India v. Badesha

In recent years, the Supreme Court of Canada has granted leave to appeal in a surprising number of extradition cases concerning individuals in Canada who are wanted for trial elsewhere. Leave has been granted in 18 cases since the 2001 unanimous decision of “The Court” in United States v. Burns, which made extradition from Canada conditional on the receipt of assurances from a foreign state that a death penalty will not be imposed and thus, in substance, overturned the position taken by a divided Court 10 years earlier. Many intuitively connect extradition with criminal law, with extradition being a process of request and surrender that is available only in relation to a serious criminal charge. However, the judicial proceedings in an extradition case are not criminal trials, and in Canada, these cases typically involve challenges on either constitutional or administrative law grounds, or a combination of both, to the decisions of committal and/or surrender that pave the way for an individual’s forced departure from Canada. Indeed, many an extradition case is in fact a judicial review application, put forward to challenge the exercise of state power in circumstances where an individual’s liberty is at stake