Canada–US Extradition: Court Hearing, Minister’s Decision and Your Defenses
In short: Yes. Canada extradites people to the United States under the Canada–US Extradition Treaty (signed 1971, in force 1976, amended in 1988 and 2001) and Canada’s Extradition Act (S.C. 1999, c. 18). Surrender is never automatic: a Canadian superior court judge must first commit the person, and the federal Minister of Justice then personally decides whether to surrender. Both decisions can be challenged in the provincial Court of Appeal.
Does Canada have an extradition treaty with the US?
Yes. Canada and the United States are bound by the Treaty on Extradition signed in Washington on December 3, 1971, in force since March 22, 1976. It was amended by a 1974 exchange of notes, a Protocol signed in Ottawa in 1988 and a Second Protocol signed in Ottawa in 2001, and it operates alongside Canada’s Extradition Act.
- 1988 Protocol — replaced the original closed list of offenses with a dual-criminality clause.
- 2001 Second Protocol — added temporary surrender (Article 7 bis), so a person serving a sentence in one country can be sent to the other for trial and returned, and simplified certification of US evidence.
Section 3 of the Act sets a default two-year punishment threshold in both countries, but it applies subject to the relevant extradition agreement: for US requests, the treaty as amended by the 1988 Protocol looks to conduct punishable in both countries by more than one year. The offenses need not share a name or identical elements.
Key fact: The Canada–US treaty contains no clause allowing either country to refuse to extradite its own nationals. Canadian citizenship is weighed at the Minister’s stage, but it is not a bar to surrender.
For the wider picture, see our overview of US extradition treaty partners. Treaty relationships change; verify current status against the US State Department “Treaties in Force” before relying on this page (updated 2026).
How does extradition from Canada to the US work?
Extradition from Canada runs in three phases under the Extradition Act: Justice Canada issues an “authority to proceed,” a superior court judge holds an extradition hearing, and the Minister of Justice personally decides on surrender. Each phase has its own decision-maker, deadlines and grounds of challenge.
| Stage | Who decides | Key provision |
|---|---|---|
| US request | DOJ Office of International Affairs (OIA), via diplomatic channels | Justice Manual 9-15.000 |
| Provisional arrest (urgent cases) | Canadian judge, on the Attorney General’s application | Act s. 13; Treaty Art. 11 |
| Authority to proceed | Department of Justice Canada, for the Minister | Act s. 15 |
| Extradition (committal) hearing | Superior court judge | Act s. 29 |
| Surrender decision | Minister of Justice, personally | Act s. 40 |
| Appeal / judicial review | Provincial Court of Appeal; Supreme Court of Canada with leave | Act ss. 49, 57 |
- The US request. Every formal request based on federal charges is reviewed and approved by the DOJ’s OIA under the Justice Manual, and only OIA can initiate a provisional-arrest request.
- Provisional arrest. A Canadian judge may issue a warrant if arrest is necessary in the public interest (s. 13). The US must then deliver the formal request within the deadline set by the treaty. If deadlines lapse, the person must be discharged unless a judge extends them (s. 14).
- The hearing is not a trial. The judge does not decide guilt, only whether the evidence would justify committal for trial in Canada had the conduct happened there, and whether you are the person sought.
- Ministerial phase. After committal, you have 30 days to make submissions to the Minister (s. 43). The Minister has 90 days to decide; if you have made submissions, the Minister may extend this once by up to 60 days, and may postpone the decision until 45 days after an appeal is decided (ss. 40–41). Surrender cannot occur within 30 days of committal or while an appeal or judicial review is pending (s. 62).
Can Canada refuse to extradite someone to the US?
Yes. Even after a judge commits a person, the Minister of Justice must refuse surrender on certain statutory grounds and may refuse on others. These grounds come from the Extradition Act and the treaty, and they are argued in written submissions to the Minister and, if needed, on judicial review.
- Mandatory (s. 44(1)): surrender would be “unjust or oppressive having regard to all the relevant circumstances,” or the request aims to prosecute or punish the person by reason of race, religion, nationality, ethnic origin, political opinion, sex, sexual orientation or another listed status.
- Treaty bars (Art. 4, which under s. 45 of the Act prevail over ss. 46–47): the person is being prosecuted, or has already been tried and discharged or punished, in Canada for the same offense; prosecution is time-barred under US law; or the offense is of a political character — an exception that does not cover murder, kidnapping, hostage-taking, explosives offenses or offenses Canada must prosecute or extradite under a multilateral treaty.
- Specialty (Treaty Art. 12): an extradited person may be tried only for the offenses for which surrender was granted, subject to narrow exceptions.
Our guide to defenses against extradition explains how these arguments are built.
Talk to an extradition lawyer in confidence. Call, WhatsApp or Telegram +357 96 447475, or request a confidential case review. The 30-day window for ministerial submissions is short.
What about the death penalty?
Absent exceptional circumstances, Canada will not surrender a person to face a possible death sentence in the US without assurances that it will not be imposed or carried out. Article 6 of the treaty allows refusal unless sufficient assurances are given, and section 44(2) of the Act lets the Minister refuse where the conduct is punishable by death.
The leading authority is the Supreme Court of Canada’s decision in United States v. Burns, 2001 SCC 7. The Court held, under section 7 of the Charter, that “in the absence of exceptional circumstances, which we refrain from trying to anticipate, assurances in death penalty cases are always constitutionally required.”
Can Canada extradite its own citizens to the US?
Yes. Canadian citizens can be extradited to the United States. Section 6(1) of the Charter protects a citizen’s right to remain in Canada, but the Supreme Court of Canada held in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, that extradition limits this right in a way justified under section 1.
Citizenship still matters. Justice Canada states that the Minister must refuse to surrender a citizen if it would be “an unjustifiable infringement of the right to remain in Canada.” Submissions often address whether prosecution in Canada is a realistic alternative. In Lake v. Canada (Minister of Justice), 2008 SCC 23, the Supreme Court held that courts owe deference to the Minister’s weighing of these factors.
Is bail available while extradition is pending?
Yes. A person arrested for extradition in Canada can apply for release before a superior court judge, who may order release with or without conditions, or detention (s. 18(1)(b)). Section 19 applies the Criminal Code’s bail provisions with necessary modifications, and a Court of Appeal judge may review the decision (s. 18(2)).
Release can also be sought pending an appeal of committal, the Minister’s decision, or judicial review (s. 20).
How do appeals and judicial review work?
Both decisions can be challenged in the Court of Appeal of the province where committal was ordered. Appeals from committal on questions of law go as of right; questions of fact or mixed fact and law need leave (s. 49). Notice must be filed within 30 days of the judge’s decision (s. 50).
Judicial review of the surrender order must be sought within 30 days after the Minister’s decision is first communicated (s. 57). If the Court of Appeal upholds both, you may seek leave to appeal to the Supreme Court of Canada, which hears only cases of public importance.
You can also consent in writing before a judge to committal (s. 70), which gives up the hearing, or to surrender (s. 71), which also gives up ministerial submissions, the s. 44 refusal grounds and judicial review. Compare the US-side rules on waiving extradition.
Interpol Red Notices and Canada
A Red Notice is not an arrest warrant in Canada. A foreign warrant has no force on its own; arrest for extradition requires a Canadian warrant, typically issued under section 13 after a US provisional-arrest request. INTERPOL Ottawa, Canada’s National Central Bureau, is operated by the RCMP.
A notice can still trigger border alerts and a fast provisional-arrest application. A challenge to a defective notice before the Commission for the Control of Interpol’s Files (CCF) can run in parallel — see our Interpol Red Notice guide.
How we help
We assess the US charging documents and the OIA request, coordinate with Canadian extradition counsel on the hearing and bail, prepare ministerial submissions on Charter, death-penalty and humanitarian grounds, and address any Interpol notice. We do not guarantee outcomes. Learn more about how extradition to the United States works.
Speak with an extradition lawyer — confidential. Call/WhatsApp/Telegram +357 96 447475 or request a confidential case review.
FAQ
Does Canada extradite to the US?
Yes, under the 1971 Canada–US Extradition Treaty and the Extradition Act. A Canadian judge must commit the person and the Minister of Justice must personally order surrender; both steps can be challenged.
Does Canada have an extradition treaty with the US?
Yes. It was signed in 1971, entered into force in 1976 and was amended by Protocols signed in 1988 and 2001. Verify current status against the State Department’s “Treaties in Force.”
Can a Canadian citizen be extradited to the US?
Yes. In Cotroni (1989) the Supreme Court of Canada held extradition to be a justified limit on the Charter right to remain in Canada. The Minister must still refuse if surrender would unjustifiably infringe that right.
Will Canada extradite someone facing the death penalty?
Not without assurances, absent exceptional circumstances, following United States v. Burns (2001 SCC 7).
Can I get bail during extradition proceedings in Canada?
Yes. A superior court judge can order release with or without conditions under section 18 of the Extradition Act, and release can also be sought pending appeal, the Minister’s decision or judicial review.
Is an Interpol Red Notice enough to arrest me in Canada?
No. Arrest for extradition requires a Canadian warrant, usually issued after a US provisional-arrest request — although a notice can prompt that request.
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