Extradition Act (S.C. 1999, c. 18)

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.

Marginal note:Deferral of Supreme Court appeal

• 56 (1) The Supreme Court may defer, until the Minister makes a decision with respect to the surrender of the person under section 40, the hearing of an application for leave to appeal, or the hearing of an appeal, from a decision of the court of appeal on an appeal taken under section 49, or on any other appeal in respect of a matter arising under this Act.

• Marginal note:Deferral of Supreme Court appeal

  (2) The Supreme Court may also, if an application for judicial review is made under section 57 or otherwise, defer the hearing until the court of appeal makes its determination on the application.

Judicial Review of Minister’s Order

Marginal note:Review of order

• 57 (1) Despite the Federal Courts Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.

• Marginal note:Application

  (2) An application for judicial review may be made by the person.

• Marginal note:Time limitation

  (3) An application for judicial review shall be made, in accordance with the rules of court of the court of appeal, within 30 days after the time the decision referred to in subsection (1) was first communicated by the Minister to the person, or within any further time that the court of appeal, either before or after the expiry of those 30 days, may fix or allow.

• Marginal note:Section 679 of the Criminal Code

  (4) Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to an application for judicial review.

• Marginal note:Hearing of application

  (5) An application for judicial review 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:Powers of court of appeal

  (6) On an application for judicial review, the court of appeal may

  • (a) order the Minister to do any act or thing that the Minister has unlawfully failed or refused to do or has unreasonably delayed in doing; or

  • (b) declare invalid or unlawful, quash, set aside, set aside and refer back for determination in accordance with any directions that it considers appropriate, prohibit or restrain the decision of the Minister referred to in subsection (1).

• Marginal note:Grounds of review

  (7) The court of appeal may grant relief under this section on any of the grounds on which the Federal Court may grant relief under subsection 18.1(4) of the Federal Courts Act.

• Marginal note:Defect in form or technical irregularity

  (8) If the sole ground for relief established in an application for judicial review is a defect in form or a technical irregularity, the court of appeal may

  • (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; or

  • (b) in the case of a defect in form or a technical irregularity in the decision, make an order validating the order, to have effect from the time and on the terms that it considers appropriate.

• Marginal note:One hearing by court of appeal

  (9) If an appeal under section 49 or any other appeal in respect of a matter arising under this Act is pending, the court of appeal may join the hearing of that appeal with the hearing of an application for judicial review.

• Marginal note:Provincial rules of judicial review apply

  (10) Unless inconsistent with the provisions of this Act, all laws, including rules, respecting judicial review in force in the province of the court of appeal apply, with any modifications that the circumstances require, to applications under this section.

Order of Surrender

Marginal note:Contents of the surrender order

58 An order of surrender must

• (a) contain the name of the person who is to be surrendered;

• (b) describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered;

• (c) state the extradition partner to which the person is to be conveyed;

• (d) direct the person who has custody of the person to be surrendered to deliver them into the custody of the person or a member of the class of persons referred to in paragraph (e);

• (e) designate the person or class of persons authorized for the purposes of section 60;

• (f) set out any assurances or conditions to which the surrender is subject;

• (g) fix, in the case of postponement of surrender under section 64, the period of time at or before the expiry of which the person is to be surrendered; and

• (h) fix, in the case of a temporary surrender under section 66,

  • (i) the period of time at or before the expiry of which the person to be surrendered must be returned to Canada, and

  • (ii) the period of time at or before the expiry of which final surrender shall take place.