An allegation of serious abuse by the Requesting State directly implicates the Canadian extradition court’s integrity

Czech Republic v. Zajicek, 2012 ONCA 99 deals with allegations of wrongdoing by a State seeking extradition. The Court writes:

[14]     At his committal hearing, the appellant sought to introduce as evidence a nine-page affidavit he had sworn shortly before the hearing commenced.  In this affidavit, the appellant alleged that he had been subject to very serious physical and psychological mistreatment by several Czech Republic police officers in two different police stations over a two-day period in the late autumn of 1996.  Particulars of the alleged police misconduct included allegations that the appellant had been handcuffed to a hot radiator that caused his skin to burn, he was punched and kicked repeatedly, he was beaten with a baton, his head was dunked in a fish tank, he was aggressively questioned about various thefts, and he was forced to sign blank pieces of paper that were turned into a false confession.

[15]     Based on this evidence, the appellant sought a stay of proceedings on the grounds that the actions of the Czech Republic police violated his s. 7 Charter rights such that extradition would be an abuse of process.

[16]     The extradition judge found that there was enough evidence to order committal even without the appellant's confession.  Accordingly, she reasoned that any abuse associated with the confession did not engage the court's s. 7 Charter jurisdiction and was a matter for the Minister.  The extradition judge interpreted her Charter jurisdiction as being circumscribed to issues directly related to the fairness of the committal hearing.  In her view, the fairness of the hearing was not affected by allegations concerning the manner in which the appellant's confession was obtained where this evidence was not relied upon in support of his committal.  For the same reason, the extradition judge deemed it unnecessary to determine the admissibility of the appellant's affidavit describing the alleged torture.

[17]     The extradition judge did not have the benefit of this court's decision in United States of America v. Khadr, 2011 ONCA 358, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 316, when she engaged in the above reasoning.  I agree with the appellant that if Khadr had been in play, the extradition judge would have approached the appellant's allegation of torture in a different way.

[18]     In Khadr, the extradition judge found that Khadr was physically abused during the first three days of his fourteen-month detention by intelligence officials in Pakistan.  On appeal, Sharpe J.A. said, at para. 4:

There is no appeal against the extradition judge's finding that the human rights violations were shocking and unjustifiable.  Because of the requesting state's misconduct, proceeding with the extradition committal hearing threatened the court's integrity.  Responding to that threat was a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the Minister.
...

[24]     First, an allegation of serious abuse by the Requesting State directly implicates the Canadian extradition court's integrity; this is the simple message of Khadr.