I believe as a general rule, the crime for which the extradition is requested actually has to be illegal in the country the request is sent to. My understanding is that the military draft is unconstitutional in Canada, thus US draft dodgers had safe haven there.
Not unconstitutional, but non-existent.
(And, it was very odd to see this thread pop up again. My first reaction on seeing the title was "I don’t remember a recent case from the SCC on extradition. Then I saw who started it. 
)
That seems way too complex. You’re practically talking about holding two full trials, and in your example at least the two countries involved use the same language. Proofs would need to be shipped; documents from the country pursuing might need to be translated; the investigation and trial from the judging country would then need to be translated; and the investigation and trial from the judging country may work in a way that’s very different from those of the pursuing country (an issue which makes legal translations specially complex and delicate, as if the subject matter wasn’t complex and delicate enough to begin with).
At least the French way (“we are the only ones who can judge our own citizens”) only involves shipping the proofs and translating the original documents; one may agree with it or not but it’s a lot simpler than your mixed-systems method.
So what happens if the US tells Canada, “You don’t tell us what to do. You wanna keep him then fine.”
I started to read the thread with some astonishment. Hasn’t Canada been doing this for years, I thought. I even saw an old Law & Order episode where this played a part.
Then I looked at the date. Curse you, zombies! Ya got me again!
It’s running to Momma when your Daddy already told you what he was going to do to you.
That would be an interesting question, because Canadian authorities would not have any power to hold him if there was no extradition application pending, and in most cases, if he’s an American he wouldn’t have any right to live in Canada, which points to deportation, likely to a third country, if one could be found to take him. However, in the decade since this case came done, the issue has not arisen, so far as I know. US prosecutors are willing to take their guys on the condition.
After all, what DA is going to say to the family of a murder victim, “Yeah, we know where he is and we could extradite him to stand trial, but those darn Canadians won’t let us execute him, so we’ve decided to just let him go.”
Canada has had a draft before - during the World Wars - so it seems unlikely it would be unconstitional if brought back again.
During Vietnam, however, Canada had no draft, and no laws concerning drafts. So draft dodgers were not extradited, since you can’t break a law that does not exist. The key of course is that you had to be avoiding the draft. A person who had already been inducted into the U.S. armed services - drafted or not - and then subsequently deserted WAS breaking a law with an essentially identical Canadian equivalent, and could be deported.
Canada has acquired a Charter of Rights & Freedoms since WWII which could affect the constitutionally of military conscription. However Parliament could simply use the Notwithstanding Clause to temporarily shield a conscription law from the Charter.
Arguably, that’s what happened in the Charles Ng case.
Personally, I’m okay with extraditing. The Americans are so glacially slow at carrying out executions that the convict will probably die of old age first, anyway.
No, in the Ng case, the SCC held that he could be extradited without any assurances with respect to execution.
Plus, statistically speaking most of the States that actually carry out the death penalty (the lion’s share happen in only four states) are Southern, with a large portion of that being Texas. People who commit capital crimes in those States aren’t super likely to flee to Canada when Mexico is right there. I think the only state on the U.S.-Canadian border (and it’s a water border at that) which both has a death penalty statute and actually carries out executions is Ohio (53 executions since 1976 when capital punishment became legal again in the United States.) Some other states still have statutes but don’t actively execute: Washington (5), Idaho (3), Montana (3), Pennsylvania (3), New Hampshire (0) (number in parentheses being the number of executions carried out in those states since 1976.)
These states that have the statute but essentially haven’t carried out executions in years (some in decades), prosecutors generally aren’t that big on pursuing the death penalty in any case. What’s the point? It’s way more expensive and if your State isn’t one that actually carries out, it’s little more than political theater. So why would DAs in those jurisdictions care at all about agreeing to not seek the death penalty in exchange for getting a criminal extradited back to their jurisdiction from Canad?
Even in the States that execute regularly like Texas, Missouri, Virginia, Georgia etc–it’s still so rare and prosecutors so rarely seek the death penalty in the first place, why would they miss out on a chance to prosecute over it?
Yes, but before that, there was a vague hint that after Ng served his sentence for shooting a Calgary security guard, Canada would be in the tricky situation of:
-letting the Americans have him;
-keeping him locked up in one of our prisons indefinitely; or
-releasing him in Canada.
As I recall (vaguely, I admit) from a W5 report at the time, California was suggesting they’d call Canada’s bluff and threaten to drop the extradition request entirely, meaning Ng might end up free in Canada. Frankly, that’s pretty damn unacceptable, considering what Ng had done in California - and not allegedly done, there was videotape of him taunting and assaulting his victims before killing them - so rather than take that risk, I’d be happy to drag him to the border myself and let the Americans do what they will.
As it stands, Ng’s still alive in a California prison. He’s actually lived longer on their death row than he might have as a refugee in Canada.
I’ve always thought that Osama Bin Laden blew it big time when he decided to hide out in Pakistan instead of moving to Canada. The Canadians would never have extradited him back to the US because of the death penalty, and IIRC he had never violated any Canadian laws, so he would have been a free man up there.
Although the Canucks might have grumbled a bit about all those wives.
He would be prosecuted using universal jurisdiction under s.6 of our Crimes Against Humanity and War Crimes Act.
As well, he would not have had any right to stay on Canada, so even if not prosecuted as Muffin suggests, he would have been deported to some other country.
Not being extradited to the US does not give him a right to stay in Canada.
My guess is that he would be accidentally slashed to death by hockey stick wielding assailants shouting “SORRY!”
It is maybe worth pointing out that Canada is not the only country that requires assurances before extradition - all the EU countries do.
24 Canadians were killed on September 11. I’m pretty sure we’d find a reason to lock him up.