Though the justice minister can exercise a great deal of discretion on the matter of extradition when it comes to honouring an extradition request, once the courts have decided that the extradition requests meets the burden set out by law, tradition dictates that a political decision to keep the accused in the country (and in doing so insult the country making the extradition request) is justified when the accused could not get a fair trial in that other country.

Consider the case of Karlheinz Schreiber, who is facing extradition to Germany.

The Liberals want Schreiber kept in Canada, even though has has just about exhausted his legal options, so that Schreiber can testify at an inquiry into what transpired between him and former prime minister Brian Mulrney fifteen years ago.

The entire issue was investigated by the RCMP back then, and nothing was discovered sispicious. In fact, Mulroney was able to sue the government for legal costs, and won a $2.1 million judgement.

Schreiber, whose extradition is now imminent, has retold his story, but is now shifting the timeline so that a key discussion happens inside the final 48 hours of Mulroney's time in office. Most reasonable people would call this a feeble attempt by Schreiber to delay his extradition by manufacturing a political crisis in Canada centred on himself, but there are some more feebleminded than Schreiber's feeble stories have been overcome by the strength of Schreiber's newest revelations.

They are demanding the Justice Minister Rob Nicholson use his ministerial discretion to stop the extradition.

So what guidelines are there for Justice Minister Rob Nicholson to follow with regards to overruling an extradition decision made by the courts?

For lawyers with a "challenging" extradition case, waivers and consents can be useful as a bargaining chip with a requesting jurisdiction in terms of plea bargaining or when a person prefers to advance directly to stake his or her’s case before the Minister of Justice because the latter may have the discretion to not hand over the person, notwithstanding the result of the extradition hearing. Some of those grounds include:

• surrender would be unjust or oppressive having regard to all the relevant circumstances;
• the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons;
• the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner;
• the conduct in respect of which extradition is sought is a political offence or an offence of a political character;
• the person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction;
• the person was convicted in their absence and could not, on surrender, have the case reviewed;
• the person was less than eighteen years old at the time of the offence;
• he conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or
• none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.

If the Minister of Justice does not discharge the person, he/she is then surrendered to the other state and the extradition process is essentially complete.

Rehashing a file that has already been investigated and closed because the subject of the extradition proceedings, who has every reason to lie in order to forestall the extradition, has made brand new allegations fifteen years after the fact?

Nope, not on the list.

The bottom line is that extradition can be refused because it is felt that the state making the request has a poor case, would not treat the accused fairly, or the accused would face the death penalty.

In other words, if Germany was some sort if tin-pot banana republic rife with corruption and run by a sect of fundamentists.

They've got phones in Germany. Send him home and call him up in prison (if that's where he ends up) when the inquiry gets going. If he refuses to talk, then depend on the physical evidence that supports his newest allegations -- the email trail, the recorded phone calls, the cancelled cheques.

Oh yeah, there's none of that.

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