Sriskandarajah v. United States of America, 2012 SCC 70

The Appellants, Suresh Sriskandarajah and Piratheepan Nadarajah, were alleged to have provided support to a Sri Lankan terrorist organization, the Tamil Tigers. Sriskandarajah was alleged to have provided the Tigers with warship design software and communications equipment, and to have assisted with money laundering. Nadarajah was accused of attempting to acquire weapons on behalf of the organization. Neither Defendant was prosecuted in Canada; rather, the United States sought execution of both to be prosecuted there.

The Supreme Court of Canada rejected the Defendants’ constitutional challenge that extradition to the U.S. would violate their rights “to remain in Canada” pursuant to Section 6(1) of the Charter of Rights and Freedoms, affirming previous precedents which hold that the Minister retains broad discretion to grant the extradition requests of another country:

[21] The appellants have not shown that the considerations on which Cotroni (1989), Kwok (2001) and Lake (2008) were based are no longer valid. If anything, the march of globalization calls for increased international cooperation in law enforcement.

[22] The decision to extradite is a complex matter, involving numerous factual, geopolitical, diplomatic and financial considerations. A strong factor in one case may be a weak factor in another. This supports maintaining a non-formalistic test that grants flexibility to the Minister’s decision when faced with a foreign state’s request. The Minister of Justice has superior expertise in this regard, and his discretion is necessary for the proper enforcement of the criminal law.

This case goes to show the uphill legal battle of anyone who faces extradition, and the lack of constitutional remedies in such circumstances. Unfortunately, it seems that the government retains almost absolute jurisdiction to extradite an individual whose prosecution would prove politically inconvenient or even constitutionally impossible under Canadian law. The cases of Marc Emery and Michael Seifert are both recent examples of Canadians being extradited to foreign jurisdictions to stand trial, with no charges laid in Canada.

Decided by the Supreme Court of Canada on December 14, 2012.
Click here for the full text of the decision.

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