Case Law Update: 'Nemeth v. Canada (Justice)'

2010 SCC 56, Released 25 November 2010

Immigration and Refugee Law – Extradition – Principle of Non-Refoulement

This appeal involved the interplay between the right of refugees not to be returned to a country where they will face prosecution (the principle of non-refoulement) and Canada's obligations with respect to extradition.

The appellants, who are of Roma ethnic origin, arrived in Canada from Hungary in 2001, and were given refugee status due to a well-founded fear of persecution. Two years later, Hungary issued an international arrest warrant in respect of a fraud charge against the appellants, for an allegedly fraudulent lease for $2,700 CAD. The Minister of Justice ordered the appellants' extradition to Hungary.

The principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run the risk of being subjected to human rights violations. Section 115 of the Immigration and Refugee Protection Act ("IRPA") incorporates this principle into statutory law. However, the Court found that the term "removed" in s. 115 of the IRPA has a specialized meaning and does not include removal by extradition. Rather, non-refoulement in the extradition context is dealt with by s. 44 of the Extradition Act ("EA").

Pursuant to s. 44 of the EA, the Minister must refuse to surrender an individual for extradition if the surrender would be unjust or oppressive having regard to all the relevant circumstances, or if the request for extradition is made for the purpose of prosecuting or punishing the person by reason of certain grounds such as race and religion, or if "the person's position may be prejudiced for any of those reasons". The Court held that the prejudice referred to in s. 44 is not limited to prejudice in...