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M.M. v. Minister of Justice of Canada on behalf of the United States of America

This case concerns a request for extradition by the United States of America. M.M. is a Canadian citizen born in Quebec. She is accused of abducting her children from the United States and fleeing to Canada. M.M. claims that she retrieved her children from Georgia after they ran away from their father, who had allegedly abused them.

At issue in this case is whether the double criminality requirement in extradition proceedings is satisfied. The principle of double criminality ensures that Canadians cannot be deported to face trial in another country for conduct that would not be criminal in Canada.

Canada’s criminal law states that an individual cannot be guilty of child abduction if it was necessary to take the child away in order to protect them “from danger of imminent harm”. No such equivalent statutory defence exists in Georgia, however.

The BCCLA argued that the availability of such defences must be considered by the extradition judge when making the decision to commit an individual to face trial in another country. Consideration of justifications or excuses – such as statutory defences – is necessary to ensure that no person is deprived of liberty without a meaningful judicial process.

On December 11, 2015, the Supreme Court of Canada released its judgment. The Court, per McLachlin C.J. and Cromwell, Moldaver, and Wagner JJ., determined that the Minister’s decision to send M to Georgia for trial was reasonable, stating that the principle underlying extradition is that a person should be answerable to a country’s laws while in that country. The three dissenting justices argued the Minister’s decision was unreasonable because the woman’s actions would not be considered a crime under Canadian law. Justice Abella, writing for the dissent, argued: “To surrender the mother for her conduct in protecting the children is to penalize them for reaching out to her by depriving them of the only parent who can look after them. Moreover, because the defence of rescuing children to protect them from imminent harm does not exist in Georgia, the mother will not be able to raise the defence she would have been able to raise had she been prosecuted in Canada. Surrender in these circumstances is, with respect, Kafkaesque.”

The BCCLA was represented by Brent Olthuis and Greg Allen of Hunter Litigation Chambers.

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