Amnesty International was represented in this case by Lorne Waldman and Jacqueline Swaisland.
WHAT IS THIS CASE ABOUT?
Mr. Gavrila came to Canada from Romania in 2004 and made a successful claim for refugee protection on the basis that he was being persecuted for his Roma ethnicity and based on his advocacy activities on behalf of a Roma organization. After his refugee claim was recognized in Canada, Romanian authorities requested his extradition to serve a prison sentence in Romania, as he was convicted in abstentia of forging visas. The case concerned whether Canadian authorities could vacate Mr. Gavrila’s refugee status for misrepresentation and inadmissibility due to serious criminality and extradite Mr. Gavrila under Canada’s Extradition Act even though he faced a real risk of persecution if returned to Romania.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International intervened before the Supreme Court of Canada in Mr. Gavrila’s case to argue that Canada’s extradition and refugee determination procedures are interconnected and they must be interpreted so as to ensure that all of Canada’s international obligations and obligations under the Canadian Charter of Rights and Freedoms (Charter) are respected. We also argued that the Extradition Act does not provide sufficient protection against refoulement. As a result, in exercising his discretion to surrender a Convention Refugee for extradition, the Minister must ensure that he is acting consistently with Canada’s international obligations and the Charter. This requires that the Minister conduct a proper risk assessment in accordance with the principles of fundamental justice so that extradition does not expose a person to a risk of persecution or torture.
STATUS OF THE CASE
In deciding Mr. Gavrila’s case, the Supreme Court of Canada released a concurrent judgment in a similar case, Németh v. Canada, which also considered the interplay between Canadian extradition and refugee law. In Németh, the Supreme Court determined that the Minister’s discretion to extradite is limited by (a) section 44 of the Extradition Act, which provides that the Minister must refuse to surrender a person for extradition if surrender would be oppressive or unjust or if the person would be persecuted; and (b) the principles of fundamental justice under section 7 of the Charter. These protections give effect to Canada’s non-refoulement obligations in international law, and must be be considered in any extradition decision. As a result, the Supreme Court determined that “[r]efusal of surrender is mandatory if the Minister is satisfied that the conditions which lead to conferral of refugee status still exist and it is not shown that the person sought was or has become ineligible for refugee status.”
When the Minister ordered Mr. Gavrila’s surrender for extradition, Mr. Gavrila’s refugee status had not been ceased or revoked. As a result, the Supreme Court determined that the Minister should have applied the principles the Court established in Németh, and refused extradition because surrender would expose Mr. Gavrila to the persecution that formed the basis of his refugee claim. However, the Supreme Court left it open to the Minister to determine whether Mr. Gavrila’s alleged offences in Romania rendered him ineligible for refugee status.
LEGAL RESOURCES
Amnesty International’s notice of motion to intervene before the Supreme Court of Canada in the Gavrila case
Affidavit of Alex Neve in support of Amnesty International’s motion to intervene before the Supreme Court of Canada in the Gavrila case
Amnesty International’s motion to intervene before the Supreme Court of Canada in the Gavrila case
Amnesty International’s submissions to the Supreme Court of Canada in the Gavrila case
