Extraditing Magnotta: Explaining the Extradition Treaty

Not unexpectedly, Luka Rocco Magnotta, aka the alleged “body-parts” killer, was arrested, without incident, in Berlin, Germany. As he was arrested outside of Canadian jurisdiction, Magnotta may only be transferred to Canada pursuant to treaty agreements between the two countries. The Treaty now in force dates from 1979 and governs both the extradition of fugitives facing charges (or having been convicted facing sentence) in Canada when found in Germany as well as those fugitives from German justice found on Canadian soil.

In 2004, a supplementary Treaty was implemented between Canada and Germany.  For the most part, this supplement merely clarifies or simplifies the language of the original, but there are a few substantial changes to the document, which I will note. One significant change is a broadening of offences subject to extradition: in the original Treaty, an extraditable offence needed to be listed on a Treaty, while in the amended version, the schedule or list requirement is deleted. Thus, any criminal offence, which is a criminal offence in both Germany and Canada, is subject to the Treaty. In extradition, it is the substance of the crime, which is relevant, and therefore it is of no matter that the crimes may be described differently in each country. As long as the essential elements of the crime are similar, the crime is subject to the extradition process.

There are, of course, some exceptions. For instance, extradition will not be granted for “purely military” offences. Extradition may also be refused if the charge is purely politically motivated or if the charge merely persecutes the fugitive on the basis of race, religion, nationality or political opinion. Some offences are excluded from these exceptions, such as murder and kidnapping.  Also, if the fugitive is a national or a citizen of the country in which he or she is found, and is not therefore a national of the requesting country, the fugitive will not be produced to the requesting country, but prosecuted in the found country.

Additionally, extradition shall not be granted if the alleged fugitive has already been tried and acquitted for the crime or the fugitive has already completely served his or her sentence for the offence. A significant change from the 1979 Treaty is the treatment of situations of amnesty: now extradition may be refused if the fugitive was pardoned or received amnesty for the crime. In the 1979 Treaty, a fugitive was still subject to extradition in cases of amnesty.

Consistent with Charter decisions, the treaty suggests extradition “may be refused” should the crime be one for which the death penalty may be imposed where the other country does not impose the death penalty. However, a fugitive may be extradited, in those circumstances, where the requesting country agrees not to impose the death penalty.

A further possible ground for refusing extradition is on the basis of a conviction of an offence of “contumacy.” The term refers to a disobedience of a court order or a refusal to obey an order, such as a summons. An example would be where the accused failed to appear in court for his trial on a criminal matter and he was convicted in absentia or in the person’s absence. In this instance, extradition may be refused unless the requesting state agrees to permit the fugitive to test the underlying conviction as well. This safeguard ensures that the fugitive’s conviction will be proven properly, based on the facts and evidence and not on the basis of a mere failure to appear. 

There are also various procedures to be followed in requesting extradition under the Treaty. Previously, the request must come through diplomatic channels, but the 2004 amendments now requires the request to come from the respective departments of justice from each country, yet still permitting the use of diplomatic channels where appropriate.

Procedurally, documentation must be sent to support the request. Such information is required to establish the identity of the fugitive, a description of the crime alleged, and proof a warrant for arrest is outstanding. In certain circumstances, if required, information justifying the charges may be sent and presented as well. If the information provided is insufficient, instead of discharging the fugitive for want of prosecution, the state must now request the needed information from the requesting state.

When extradition is finally granted, the fugitive is surrendered to the requesting state’s authorities with the requesting state bearing all expenses of transport. This surrendering may be postponed if the fugitive faces charges in the surrendering state or the state may, as provided by the 2004 amendments, “temporarily” surrender the fugitive to be returned at a later date.

There is a further caveat to the extradition process, which is known as the “rule of specialty.” This rule requires that the fugitive be only tried in the requesting state for those crimes for which he was surrendered. He may face trial on no other charges. This requires particular attention by the requesting state to ensure that all appropriate charges are before the extradition court.

What does this all mean for the Magnotta case? Press reports have suggested Magnotta will be consenting to his surrender to Canada. Considering the provisions of the Treaty, the charges for which he faces, the fact he is a Canadian national, and the documentary evidence, which is readily available to be sent to Germany, Magnotta’s consent makes sense.  On extradition for this charge there appear to be no valid arguments, which could be raised, to stop his surrender to Canadian authorities. Even with consent, it will take some time before Magnotta will be sent back. Formal requests do still need to be made and certain documents are required to be sent and signed. Additionally, in light of the Treaty provisions, the Department of Justice will need to first complete the Canadian investigation to ensure Magnotta will be surrendered for all offences he might possibly face in Canada. Only then, will Magnotta return to face the real issues of guilt or innocence.