Extradition Act (S.C. 1999, c. 18)

Marginal note:Authority to keep person in custody

• 30 (1) The order of committal constitutes the authority to keep the person in custody, subject to an order of judicial interim release.

• Marginal note:Duration of order

  (2) The order of committal remains in force until the person is surrendered or discharged or until a new hearing is ordered under paragraph 54(a).

Rules of Evidence

Marginal note:Definition of document

31 For the purposes of sections 32 to 38, document means data recorded in any form, and includes photographs and copies of documents.

Marginal note:Evidence

• 32 (1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:

  • (a) the contents of the documents contained in the record of the case certified under subsection 33(3);

  • (b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and

  • (c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.

• Marginal note:Exception — Canadian evidence

  (2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

Marginal note:Record of the case

• 33 (1) The record of the case must include

  • (a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; and

  • (b) in the case of a person sought for the imposition or enforcement of a sentence,

    • (i) a copy of the document that records the conviction of the person, and

    • (ii) a document describing the conduct for which the person was convicted.

• Marginal note:Other documents — record of the case

  (2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.

• Marginal note:Certification of record of the case

  (3) A record of the case may not be admitted unless

  • (a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and

    • (i) is sufficient under the law of the extradition partner to justify prosecution, or

    • (ii) was gathered according to the law of the extradition partner; or

  • (b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.

• Marginal note:Authentication not required

  (4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

• Marginal note:Record of the case and supplements

  (5) For the purposes of this section, a record of the case includes any supplement added to it.

Marginal note:Oath or solemn affirmation

34 A document is admissible whether or not it is solemnly affirmed or under oath.

Marginal note:No proof of signature

35 A document purporting to have been signed by a judicial, prosecuting or correctional authority, or a public officer, of the extradition partner shall be admitted without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Translated documents

36 A translation of a document into one of Canada’s official languages shall be admitted without any further formality.

Marginal note:Evidence of identity

37 The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

• (a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and

• (b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

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).