Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

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Extradition - Double criminality rule - Defence of necessity - Defence recognized in Criminal Code but unavailable in requesting state - Whether defence negates mens rea required for conviction of abduction in Canada such that Canadian offence cannot be held to be same as U.S. offence for which extradition sought? - Whether appellant’s acts were punishable in Canada and whether double criminality rule is met? - Whether unavailability of defence in U.S. must be considered by Minister of Justice at surrender stage? - Best interest of child - Whether Minister failed to properly consider and take into account best interest of appellant’s children? - Criminal Code, R.S.C., 1985, c. C-46, s. 285 - Extradition Act, S.C. 1999, c. 18, s. 44(1)a).

In October 2010, the appellant’s ex-husband reported the couple’s three minor children missing in the State of Georgia in the United States of America. He had sole custody of the children while the appellant had no visitation rights. The children later testified that they had run away, without the appellant’s knowledge, on account of their father’s ill treatment and violence. They claimed to have contacted the appellant more than one week later.

In December 2010, Georgia police located the appellant and her children in a battered women’s shelter in the Province of Quebec. The appellant was arrested and her extradition was sought by the U.S. to face charges in Georgia for Interstate Interference with Custody. A request for extradition was issued in February 2011, listing the equivalent Canadian offences of abduction in contravention of a custody order (s. 282 of the Criminal Code) and abduction of a person under sixteen (s. 280).

Although an application seeking the appellant’s committal for extradition was initially dismissed, that decision was overturned on appeal and the appellant was committed into custody. The Minister of Justice then ordered the appellant’s surrender for extradition, rejecting arguments that ordering her surrender would be unjust or oppressive in light of the best interest of her children and in light of the unavailability of the defence of necessity in the U.S.