Can a Minister refuse to make a surrender order under s. 44(1)(a) of the Criminal Code?
British Columbia, Canada
The following excerpt is from United States of America v. Johnstone, 2013 BCCA 2 (CanLII):
Under s. 44(1)(a) of the Act, the Minister must refuse to make a surrender order if satisfied that it would be “unjust or oppressive having regard to all the relevant circumstances”. There is significant overlap between that test and the criteria for establishing a violation of a subject’s s. 7 Charter rights. If surrender is contrary to the principles of fundamental justice protected by s. 7, it will in all probability also be unjust or oppressive, and shock the Canadian conscience: Fischbacher v. Canada (Minister of Justice), 2009 SCC 46 at paras. 38-39, [2009] 3 S.C.R. 170; Lake v. Canada (Minister of Justice), 2008 SCC 23 at paras. 24, 32, [2008] 1 S.C.R. 761.
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