Q and A: The process of extradition

TORONTO - Now that Canada’s most-wanted fugitive, Luka Rocco Magnotta, has been arrested in Berlin, what's the next step in the extradition process?

Global News spoke to Montreal criminal defense attorney, Eric Sutton, who has dealt with a number of extradition cases. He explained that although extradition should be relatively similar in Germany to what happens in Canada, because it’s a treaty arrangement between two countries, the process in Germany may be something different that he is not aware of. The following explanation is based on what would typically happen in an extradition case.

Global News: Based on how it usually goes, what would happen tomorrow?

Eric Sutton: First of all extradition would require, the Germans don’t have to prosecute Mr. [Newman] or Magnotta. It’s a Canadian prosecution. So the German authorities would have to be provided with a case brief from Canadian police through our Department of Justice that outlines the nature of the charges that he is facing, what the potential penalties are, what the allegations are and what type of evidence they have. It would have to be certified as being authentic and available, and on that basis a German court would provide the accused with a hearing and they would determine if there is a sufficient case to justify that he be returned to Canada to face a trial and the threshold is quite low. They don’t have to prove anything beyond a reasonable doubt in an extradition process. It’s just that is there enough evidence to justify a trial, is there evidence upon which a court could find a person guilty. That’s all they need.

GN: What type of evidence?

ES:The evidence would be provided by the Canadian authorities through our Department of Justice.

GN: Could it take a very long time?

ES: What’s a very long time? It’s all relative. Criminal justice can sometimes be frustrating from a public standpoint but there are issues of due process, everyone is entitled to a hearing before their decisions are made about their liberty. He would be entitled to a hearing, which means that him or his lawyer would want to have an opportunity to see what the evidence is so they could challenge it. In some ways it could be challenged on issues of, it could be technical on its admissibility, or whether it’s sufficiently persuasive to justify his extradition. There could be an issue as to whether a crime may have been committed but have they really shown on a minimum basis that they’ve arrested the right person. Is that person really the person depicted in the crime? If in fact the evidence clearly shows that the crime was committed, but is far from persuasive that the person they arrested committed it, the person could be discharged. He might not be extradited.

There is a process, the person has the right to inform themselves and obtain proper legal advice and be represented and then have a hearing, so if you can well imagine it’s not something that is going to take a matter of days.

GN: Why can’t this be done in Canada then instead of staying in Germany?

ES: In a way he could, it could be done in Canada. They could avoid extradition entirely if they deported him. They can deport him. He has no status in Germany as I understand. If he was a German citizen, I don’t believe he is, were he a citizen of Germany, he would be entitled to have his trial in Germany and not be extradited.

GN: Is this a recommendation that the Canadian government could/would ask for?

ES: Deportation is a decision made by the German authorities not Canadian authorities. They would have to feel that he is in Germany illegally. If he entered Germany legally then they have no real grounds to deport him. Extradition is initiated by the country that wants to try him, so it’s the Canadian government. The process could certainly take months, he may have the right to appeal. If he is ordered extradited he could perhaps appeal. It’s not like the Canadian authorities have to satisfy a court that he is guilty beyond a reasonable doubt. They just have to satisfy the court that the person accused is indeed Mr. Magnotta and that there is a reasonable case that he committed the crime.

GN:Any pitfalls in the case?

ES:The strongest part of the case may well be video evidence and it may be difficult to ascertain who the person really is in the video. On the other hand they probably have a lot of DNA evidence as to his presence in this apartment, the fact the he fled the country. To me it appears the case is reasonably strong.

GN: What happens when he arrives in Canada?

ES: Once he arrives in Canada, he will be treated like someone as though he is freshly arrested. The chances of him being released on bail are almost nil.

GN: What’s a Waiver of Extradition?

ES: Someone who is arrested under a warrant under extradition can wave it. His lawyer may meet with him and tell him to a wave it and return to Canada. If there is some type of defence to bring forward - his sanity or whatever it may be - you may as well start working on it sooner than later. If you waive extradition the process becomes very quick.

GN: How would he be brought back?

ES: It’s a custodial situation. The RCMP has to take custody of a person. It could be a commercial flight, but they would be shackled and restrained.

This interview have been edited and condensed.