Extradition Act (S.C. 1999, c. 18)

Judge’s Report

Marginal note:Report of the judge

• 38 (1) A judge who issues an order of committal of a person to await surrender shall transmit to the Minister the following documents:

  • (a) a copy of the order;

  • (b) a copy of the evidence adduced at the hearing that has not already been transmitted to the Minister; and

  • (c) any report that the judge thinks fit.

• Marginal note:Right to appeal

  (2) When the judge orders the committal of a person, the judge shall inform the person that they will not be surrendered until after the expiry of 30 days and that the person has a right to appeal the order and to apply for judicial interim release.

Property

Marginal note:Property seized

• 39 (1) Subject to a relevant extradition agreement, a judge who makes an order of committal may order that any thing that was seized when the person was arrested and that may be used in the prosecution of the person for the offence for which the extradition was requested be transferred to the extradition partner at the time the person is surrendered.

• Marginal note:Conditions of order

  (2) The judge may include in the order any conditions that the judge considers desirable, including conditions

  • (a) respecting the preservation and return to Canada of a thing; and

  • (b) respecting the protection of the interests of third parties.

Powers of Minister

Marginal note:Surrender

• 40 (1) The Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner.

• Marginal note:When refugee claim

  (2) Before making an order under subsection (1) with respect to a person who has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall consult with the minister responsible for that Act.

• Marginal note:Powers of the Minister

  (3) The Minister may seek any assurances that the Minister considers appropriate from the extradition partner, or may subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person not be prosecuted, nor that a sentence be imposed on or enforced against the person, in respect of any offence or conduct other than that referred to in the order of surrender.

• Marginal note:No surrender

  (4) If the Minister subjects surrender of a person to assurances or conditions, the order of surrender shall not be executed until the Minister is satisfied that the assurances are given or the conditions agreed to by the extradition partner.

• Marginal note:Extension of time

  (5) If the person has made submissions to the Minister under section 43 and the Minister is of the opinion that further time is needed to act on those submissions, the Minister may extend the period referred to in subsection (1) as follows:

  • (a) if the person is the subject of a request for surrender by the International Criminal Court, and an issue has been raised as to the admissibility of the case or the jurisdiction of that Court, for a period ending not more than 45 days after the Court’s ruling on the issue; or

  • (b) in any other case, for one additional period that does not exceed 60 days.

• Marginal note:Notice of extension of time

  (6) If an appeal has been filed under section 50 and the Minister has extended the period referred to in subsection (1), the Minister shall file with the court of appeal a notice of extension of time before the expiry of that period.

Marginal note:When appeal pending

• 41 (1) The Minister may postpone the making of the order of surrender if

  • (a) an appeal has been filed under section 50;

  • (b) the Minister files a notice of postponement with the court of appeal before the expiry of the period referred to in subsection 40(1); and

  • (c) the order is made not later than 45 days after the date of the decision of the court of appeal.

• Marginal note:No further deferral of appeal

  (2) When the Minister has filed a notice of postponement with the court of appeal under paragraph (1)(b), that court may not defer the hearing of the appeal under subsection 51(2).

Marginal note:Amendments

42 The Minister may amend a surrender order at any time before its execution.

Submissions

Marginal note:Submissions

• 43 (1) The person may, at any time before the expiry of 30 days after the date of the committal, make submissions to the Minister in respect of any ground that would be relevant to the Minister in making a decision in respect of the surrender of the person.

• Marginal note:Late acceptance of submissions

  (2) The Minister may accept submissions even after the expiry of those 30 days in circumstances that the Minister considers appropriate.

Reasons for Refusal

Marginal note:When order not to be made

• 44 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

  • (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or

  • (b) 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.

• Marginal note:When Minister may refuse to make order

  (2) The Minister may refuse to make a surrender order if the Minister is satisfied that 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.

Marginal note:Refusal in extradition agreement

• 45 (1) The reasons for the refusal of surrender contained in a relevant extradition agreement, other than a multilateral extradition agreement, or the absence of reasons for refusal in such an agreement, prevail over sections 46 and 47.

• Marginal note:Exception — multilateral extradition agreement

  (2) The reasons for the refusal of surrender contained in a relevant multilateral extradition agreement prevail over sections 46 and 47 only to the extent of any inconsistency between either of those sections and those provisions.

Marginal note:When order not to be made

• 46 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

  • (a) the prosecution of a person is barred by prescription or limitation under the law that applies to the extradition partner;

  • (b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; or

  • (c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character.

• Marginal note:Restriction

  (2) For the purpose of subparagraph (1)(c), conduct that constitutes an offence mentioned in a multilateral extradition agreement for which Canada, as a party, is obliged to extradite the person or submit the matter to its appropriate authority for prosecution does not constitute a political offence or an offence of a political character. The following conduct also does not constitute a political offence or an offence of a political character:

  • (a) murder or manslaughter;

  • (b) inflicting serious bodily harm;

  • (c) sexual assault;

  • (d) kidnapping, abduction, hostage-taking or extortion;

  • (e) using explosives, incendiaries, devices or substances in circumstances in which human life is likely to be endangered or serious bodily harm or substantial property damage is likely to be caused; and

  • (f) an attempt or conspiracy to engage in, counselling, aiding or abetting another person to engage in, or being an accessory after the fact in relation to, the conduct referred to in any of paragraphs (a) to (e).

Marginal note:When Minister may refuse to make order

47 The Minister may refuse to make a surrender order if the Minister is satisfied that

• (a) 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;

• (b) the person was convicted in their absence and could not, on surrender, have the case reviewed;

• (c) the person was less than eighteen years old at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act;

• (d) the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or

• (e) none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.

Marginal note:When grounds for refusal do not apply

47.1 The grounds for refusal set out in sections 44, 46 and 47 do not apply in the case of a person who is the subject of a request for surrender by the International Criminal Court.

Marginal note:Discharge

• 48 (1) If the Minister decides not to make a surrender order, the Minister shall order the discharge of the person.

• Marginal note:When refugee claim

  (2) When the Minister orders the discharge of a person and the person has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall send copies of all relevant documents to the minister responsible for that Act.

Appeal

Marginal note:Appeal

49 A person may appeal against an order of committal — or the Attorney General, on behalf of the extradition partner, may appeal the discharge of the person or a stay of proceedings — to the court of appeal of the province in which the order of committal, the order discharging the person or the order staying the proceedings was made,

• (a) on a ground of appeal that involves a question of law alone;

• (b) on a ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge of the court of appeal; or

• (c) on a ground of appeal not set out in paragraph (a) or (b) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal.

Marginal note:Notice of appeal

• 50 (1) An appellant who proposes to appeal to a court of appeal or to obtain the leave of that court to appeal must give notice of appeal or notice of the application for leave to appeal not later than 30 days after the decision of the judge with respect to the committal or discharge of the person, or the stay of proceedings, as the case may be, in any manner that may be directed by the rules of court.

• Marginal note:Extension of time

  (2) The court of appeal or a judge of the court of appeal may, either before or after the expiry of the 30 days referred to in subsection (1), extend the time within which notice of appeal or notice of an application for leave to appeal may be given.

Marginal note:Hearing of appeal

• 51 (1) An appeal under this Act shall be scheduled for hearing by the court of appeal at an early date whether that date is in or out of the prescribed sessions of that court.

• Marginal note:Deferral of appeal

  (2) The hearing of an appeal against an order of committal may be deferred by the court of appeal until the Minister makes a decision in respect of the surrender of the person under section 40.

Marginal note:Provisions of the Criminal Code to apply

• 52 (1) Sections 677, 678.1, 682 to 685 and 688 of the Criminal Code apply, with any modifications that the circumstances require, to appeals under this Act.

• Marginal note:Rules

  (2) Unless inconsistent with the provisions of this Act, rules made by the court of appeal under section 482 of the Criminal Code in relation to appeals to that court under that Act apply, with any modifications that the circumstances require, to appeals under this Act.

Marginal note:Powers of the court of appeal

53 On the hearing of an appeal against an order of committal of a person, the court of appeal may

• (a) allow the appeal, in respect of any offence in respect of which the person has been committed, if it is of the opinion

  • (i) that the order of committal should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

  • (ii) that the order of committal should be set aside on the ground of a wrong decision on a question of law, or

  • (iii) that, on any ground, there was a miscarriage of justice; or

• (b) dismiss the appeal

  • (i) if it does not allow the appeal on any ground referred to in paragraph (a), or

  • (ii) even though the court of appeal is of the opinion that on the ground referred to in subparagraph (a)(ii) the appeal may be decided in favour of the appellant, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred and the order of committal should be upheld.

Marginal note:Effect of allowing appeal

54 If the court of appeal allows an appeal under paragraph 53(a), it shall

• (a) set aside the order of committal and

  • (i) discharge the person, or

  • (ii) order a new extradition hearing; or

• (b) amend the order of committal to exclude an offence in respect of which the court is of the opinion that the person has not been properly committed on a ground referred to in subparagraph 53(a)(i), (ii) or (iii).

Marginal note:Powers

• 55 (1) On the hearing of an appeal against the discharge of a person or against a stay of proceedings, the court of appeal may

  • (a) allow the appeal and set aside the order of discharge or stay, if it is of the opinion

    • (i) that the order of discharge should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

    • (ii) that the order of discharge or the stay of proceedings should be set aside on the ground of a wrong decision on a question of law, or

    • (iii) that, on any ground, there was a miscarriage of justice; or

  • (b) dismiss the appeal.

• Marginal note:Order for new extradition hearing or committal

  (2) The court of appeal may, if it sets aside a stay of proceedings, order a new extradition hearing. The court of appeal may, if it sets aside an order of discharge, order a new extradition hearing or order the committal of the person.