PART 2Extradition from Canada (continued)
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.
(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.
- 1999, c. 18, s. 57
- 2002, c. 8, s. 141
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.
Marginal note:Surrender for other offences
59 Subject to a relevant extradition agreement, the Minister may, if the request for extradition is based on more than one offence, order the surrender of a person for all the offences even if not all of them fulfil the requirements set out in section 3, if
(a) the person is being surrendered for at least one offence that fulfils the requirements set out in section 3; and
(b) all the offences relate to conduct that, had it occurred in Canada, would have constituted offences that are punishable under the laws of Canada.
Marginal note:Power to convey
60 On the execution of a surrender order, the person or persons designated under paragraph 58(e) shall have the authority to receive, hold in custody and convey the person into the territory over which the extradition partner has jurisdiction.
61 (1) If the person escapes while in custody, the law that applies with respect to a person who is accused or convicted of a crime against the laws of Canada and who escapes applies with respect to the person.
(2) If the person escapes while in custody, the person or member of the class of persons having custody of the person has the power to arrest them in fresh pursuit.
Marginal note:Delay before surrender
62 (1) No person may be surrendered
(a) until a period of 30 days has expired after the date of the committal for surrender; or
(b) if an appeal or a judicial review in respect of a matter arising under this Act, or any appeal from an appeal or judicial review, is pending, until after the date of the final decision of the court on the appeal or judicial review.
Marginal note:Waiver of period of time
(2) The person may waive the period referred to in paragraph (1)(a) if they do so in writing.
Marginal note:Place of surrender
63 A surrender may take place at any place within or outside Canada that is agreed to by Canada and the extradition partner.
Marginal note:Postponement of surrender
64 (1) Unless the Minister orders otherwise, a surrender order made in respect of a person accused of an offence within Canadian jurisdiction or who is serving a sentence in Canada after a conviction for an offence, other than an offence with respect to the conduct to which the order relates does not take effect until the person has been discharged, whether by acquittal, by expiry of the sentence or otherwise.
Marginal note:Offence before or after surrender
(2) For greater certainty, the person need not have been accused of the offence within Canadian jurisdiction before the surrender order was made.
Marginal note:Return to Canada
65 If a person returns to Canada after surrender before the expiry of a sentence that they were serving in Canada at the time of surrender, the remaining part of the sentence must be served.
Marginal note:Temporary surrender
66 (1) The Minister may order the temporary surrender to an extradition partner of a person who is ordered committed under section 29 while serving a term of imprisonment in Canada so that the extradition partner may prosecute the person or to ensure the person’s presence in respect of appeal proceedings that affect the person, on condition that the extradition partner give the assurances referred to in subsections (3) and (4).
Marginal note:Time limits
(2) An order of temporary surrender is subject to the time limits set out in subsections 40(1) and (5) and paragraph 41(1)(c).
(3) The Minister may not order temporary surrender under subsection (1) unless the extradition partner gives an assurance that the person will remain in custody while temporarily surrendered to the extradition partner and
(a) in the case of temporary surrender for a trial, that the person will be returned within 30 days after the completion of the trial, unless a relevant extradition agreement provides for another time limit; and
(b) in the case of temporary surrender for an appeal, that the person will be returned within 30 days after the completion of the proceedings for which the presence of the person was required, unless a relevant extradition agreement provides for another time limit.
Marginal note:Time limit
(4) The Minister may require the extradition partner to give an assurance that the person will be returned no later than a specified date or that the person will be returned on request of the Minister.
Marginal note:Assurances in extradition agreements
(5) Any assurance referred to in subsections (3) and (4) that is included in a relevant extradition agreement need not be repeated as a specific assurance.
Marginal note:Final surrender after temporary surrender
(6) A person shall, subject to subsection (7), be surrendered to the extradition partner without a further request for extradition after the person
(a) has been temporarily surrendered;
(b) has been convicted by the extradition partner and had a term of imprisonment imposed on them;
(c) has been returned to Canada under subsection (4); and
(d) has finished serving the portion of the sentence that they were serving in custody in Canada at the time of the temporary surrender, unless the Minister orders that they be surrendered earlier.
Marginal note:No final surrender if circumstances warrant
(7) The Minister may, in circumstances that the Minister considers appropriate, revoke the surrender order and order the discharge of the person.
(8) The authority who has custody of the person to be surrendered under subsection (6) shall give the Minister reasonable notice of the time when the portion of the person’s sentence to be served in custody is to expire.
Marginal note:Final surrender when Canadian sentence expires
(9) When the sentence that the person is serving in Canada expires during the period during which the person is temporarily surrendered to an extradition partner, the surrender is considered to be a final surrender.
Marginal note:Waiver of return
(10) The Minister may, after consultation with the Minister of Public Safety and Emergency Preparedness or the appropriate provincial minister responsible for corrections, waive the return of the person by the extradition partner.
Marginal note:Final surrender despite subsection 3(3)
(11) A person may be surrendered under subsection (6) even if the term of imprisonment imposed by the extradition partner, or the portion of the term remaining to be served, is less than that required by subsection 3(3).
- 1999, c. 18, s. 66
- 2005, c. 10, s. 34
Marginal note:Order for surrender
67 An order of surrender prevails over a prior warrant or other order under which the person to whom it applies is otherwise detained in Canada or at liberty under terms and conditions.
Marginal note:Calculation of sentence
68 For the purposes of calculating a sentence that a person to whom an order of temporary surrender applies is serving in Canada at the time of the temporary surrender, the person
(a) is credited with any time that is served in custody outside Canada under a temporary surrender order; and
(b) remains eligible for remission in accordance with the laws of the correctional system under which the person was serving the sentence in Canada.
Marginal note:Remedy in case of delay
69 A judge of the superior court of the province in which the person is detained who has the power to grant a writ of habeas corpus, may, on application made by or on behalf of the person, and on proof that reasonable notice of the intention to make the application has been given to the Minister, order the person to be discharged out of custody unless sufficient cause is shown against the discharge if
(a) the Minister has not made an order of surrender under section 40
(i) before the expiry of the period referred to in subsection 40(1) and any additional period referred to in subsection 40(5), or
(ii) if a notice of postponement has been filed under paragraph 41(1)(b), before the expiry of 45 days after the date of the decision of the court of appeal referred to in paragraph 41(1)(c); or
(b) the person is not surrendered and conveyed to the extradition partner
(i) within 45 days after the order of surrender is made by the Minister under section 40, or
(ii) if an appeal or judicial review in respect of any matter arising under this Act, or an appeal from such an appeal or judicial review, is pending, within 45 days after the final decision of the court is made,
over and above, in any case referred to in subparagraph (i) or (ii), the time required to convey the person to the extradition partner.
Marginal note:Consent to committal
70 (1) A person may, at any time after the issuance of an authority to proceed, consent, in writing and before a judge, to committal.
Marginal note:Judge to order committal
(2) A judge before whom a person consents under subsection (1) shall
(a) order the committal of the person into custody to await surrender to the extradition partner; and
(b) transmit a copy of the consent to the Minister.
Marginal note:Consent to surrender
71 (1) A person may, at any time after arrest or appearance, consent, in writing and before a judge, to being surrendered.
Marginal note:Judge to order surrender
(2) A judge before whom a person consents to being surrendered shall
(b) transmit a copy of the consent to the Minister.
Marginal note:When Minister receives consent
(3) The Minister may, as soon as is feasible after receiving a consent to surrender, personally order that the person be surrendered to the extradition partner.
Marginal note:Sections not applicable
(4) When a person consents to being surrendered to the extradition partner, the following sections do not apply:
(a) section 43 (submissions to the Minister);
(b) section 44 (reasons for refusal);
(c) section 48 (discharge of person);
(d) section 57 (judicial review of Minister’s decision); and
(e) paragraph 62(1)(a) (delay before surrender).
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