What is the test for refusing to order surrender under section 44(1)(a) of the Criminal Code?
British Columbia, Canada
The following excerpt is from Yamba v. Canada (Minister of Justice), 2016 BCCA 219 (CanLII):
Under s. 44(1)(a) of the Act, the Minister must refuse to order surrender if satisfied that “the surrender would be unjust or oppressive having regard to all the relevant circumstances”. This encompasses a violation of the principles of fundamental justice under s. 7 of the Charter (United States v. Burns, 2001 SCC 7 at paras. 67-69, [2001] 1 S.C.R. 283).
A person sought who wishes to show surrender would be unjust or oppressive bears the onus of establishing that surrender would “shock the conscience” or be “simply unacceptable” (United States v. Allard, 1987 CanLII 50 (SCC), [1987] 1 S.C.R. 564 at 572). In discussing this onus in Lake, LeBel J. stated:
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