Extradition from Canada—Michael Delagarde

A Bathurst, New Brunswick, Canada man is facing extradition to the United States on two counts of attempted murder in New York City.^[1] Michael Delagarde’s fate rests in the hands of a Bathurst judge who must make a decision whether he must be sent back to the US to face trial; the judge’s recommendation will go to Canada’s federal justice minister who makes the ultimate decision.^[2]

This article is one of the few that discuss extradition in an illuminative manner. Mr. Delagarde’s lawyer points out that “this is a paper prosecution. The only thing that the extraditing partner has to do is send a letter stating a summary of the evidence and these are the charges and that’s all they have to do and the court has got to accept that. And there’s no right to cross-examine, there’s no right to do anything.”^[3]

An extradition hearing is not a trial. In the United States, the magistrate judge who hears an extradition request does not need to give the defense a chance to present its own evidence, nor does he need to give the defense a chance to challenge the evidence.

According to the extradition treaty and the second amending protocol between the United States and Canada, “[e]xtradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State,”^[4] and “the documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when … in the case of a request emanating from the United States for a person who is sought for prosecution, they are certified by a judicial authority or prosecutor who attests that the evidence is available for trial and is sufficient to justify prosecution under the law of the prosecuting jurisdiction.”^[5]

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[1] Bathurst Man Accused of Violent Crimes in U.S., CBC News, Nov. 1, 2005, available here.
[2] Id.
[3] Id.
[4] Extradition Treaty, Mar. 22, 1976, U.S.-Can., art. 10, para. 1, 27 U.S.T. 983.
[5] Second Protocol Amending Extradition Treaty with Canada, Jan. 12, 2001, art. 2, S. Treatt Doc. No. 107-11 (2002) (amending article 10, paragraph 2 of the Treaty) (ratified by the Senate November 14, 2002).