What is the role of a judge at an extradition hearing?

A judge at an extradition hearing is in a position like that of a judge at a preliminary hearing. The hearing is not akin to a criminal trial and therefore it is wrong to appropriate all of the procedural and constitutional safeguards of a criminal trial into the extradition hearing. McLachlin J. (as she then was) said in Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, at para. 160: While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair. Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions.

In Republic of Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536 La Forest J. said, at 553, in response to the statement that the extradition judge enjoyed powers wider than that of a preliminary hearing judge: I cannot accept this proposition. It seems to me, to ignore the modest function of an extradition hearing which (barring minimal statutory and treaty exceptions) is merely to determine whether the relevant crime falls within the appropriate treaty and whether the evidence presented is sufficient to justify the executive surrendering the fugitive to the requesting country for trial there. Responsibility for the conduct of our foreign relations, including the performance of Canada’s obligations under extradition treaties, is, of course, vested in the executive. I repeat: the role of the extradition judge is a modest one; absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed. The procedure bears a considerable affinity to a preliminary hearing, and the judge’s powers have some similarity to those of a magistrate presiding at such a hearing…