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JB Casares

    Canada-Philippines extradition treaty:

    a retrospective

by JB Casares

November 7, 2011 marks the 22nd anniversary of the Treaty on Extradition between Canada and the Philippines. Together, let’s embark on a review of this accord, which was signed in Ottawa by representatives of both countries in 1989.

An extradition treaty is an agreement between two states to surrender an alleged criminal to the requesting state for the purpose of prosecuting the person or imposing or enforcing a sentence on the person.

Extraditable and non-extraditable offenses

The Philippines-Canada Extradition Treaty categorizes offenses into Extraditable and Non-Extraditable. Extraditable offenses are those acts or omissions that are punishable under the laws of both countries, either by imprisonment or other deprivation of liberty for a maximum period of at least one year or by a more severe penalty. Although some acts or omissions may be punishable by imprisonment for a maximum period of at least one year or more, extradition shall not be granted under the following circumstances:

  1. When the offence is considered political;
  2. When the request for extradition is utterly discriminatory;
  3. When the offence is a violation of military law, which is not an offence under the ordinary criminal law of both countries;
  4. When final judgment has been passed in the requested state; and
  5. When the prosecution and enforcement of the sentence is barred by the lapse of time.
Breakdown of Philippine extradition requests

The Philippines sends 80 per cent of extradition requests to the United States, where a large number of Filipinos resides. Canada comes in second with 13 per cent, and Indonesia is third with 7 per cent. The Philippines have made two extradition requests from Canada since the treaty was signed in 1989.

Canada a haven for criminals?

Countries making extradition requests had to meet stringent evidentiary requirements before the updated Canadian Extradition Act took effect in June 1999. The intent of the law is to fast-track the extradition process and prevent Canada from becoming a “safe haven” for fugitives from other countries. However, Canada’s apparent reluctance to return fugitives to their home countries has been publicly criticized by its partner countries, the Philippines included. Former Philippines Department of Justice Special Prosecutor Dennis M. Villa-Ignacio mentioned in the past, “Canada is becoming known as a haven for fugitives.” He asked, “I would like to know what the Canadian government is going to do about it.”

The Chingkoe couple

Faustino and Gloria Chingkoe are wanted for 83 cases of violations of the Philippines Anti-Graft and Corrupt Practices Act as well as for falsification of public documents. The Asian Pacific Post reported in 2003 that Faustino Chingkoe, his wife Gloria and their family are residing in Richmond in a house worth over C$500,000. The couple has also invested in several other properties on Westminster Highway and on Alderbridge Way in Richmond, according to this report. On Ottawa’s stringent evidentiary requirements, Philippine authorities’ first attempt in 2003 to get Gloria extradited faltered.

Rodolfo Pacificador

Rodolfo Pacificador, one of the accused in the killing of former Antique Provincial Governor Evelio Javier, is living freely in Toronto. Pacificador claimed political refugee status after landing illegally in Canada on September 29, 1987. In 1996, he was ordered extradited after the Federal Justice Minister rejected claims that the charges against him were politically motivated. In August 2002, the Ontario Court of Appeal quashed Pacificador’s extradition order and described the Philippines as a nation whose criminal procedures and punishments were “simply unacceptable” and would “sufficiently shock the conscience” of Canadians. Pacificador was off the extradition hook and went back to securing asylum as a political refugee.

New Extradition Treaty

Canada and the Philippines should rewrite their extradition treaty to keep abreast with the times. Canada’s new extradition law removed the production of stringent evidentiary requirements from the requesting state and a mere summary of evidence is allowed, which judges were to accept in good faith.

However in 2006, the Supreme Court of Canada effectively rewrote the 1999 Act. It said that judges had a duty to protect the Charter rights of fugitives by questioning foreign evidence. This allowed lawyers to raise all sorts of objections – from challenging how foreign evidence was gathered to criticizing the governments, courts, prisons and punishments of requesting states.

Professor Umut Özsu, an international law scholar at the University of Manitoba Faculty of Law, mentioned in an interview, “the issue of extradition has always been very sticky especially in contexts involving the return of an individual to a state in which capital punishment is a potentially applicable sentence.”

Sources
  • Severino H. Gaña, Jr., Extradition And Legal Assistance: The Philippine Experience
  • www.theprovince.com
  • www.asianpacificpost.com
  • www.thefilipinopost.com
  • www.cbc.ca
  • www.canlii.org

The Author is a paralegal with the law firm Carroll & Belding. He is also an NCA student at the University of Manitoba, Faculty of Law.

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