Extradition Act

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Sections442

• 1Short title

  This Act may be cited as the Extradition Act.

• 2Definitions

  The definitions in this section apply in this Act.

• 2[p2]

  Attorney General means the Attorney General of Canada. (procureur général)

• 2[p3]

  court means

• 2[p3](a)

  in Ontario, the Ontario Court (General Division);

• 2[p3](b)

  in Quebec, the Superior Court;

• 2[p3](c)

  in New Brunswick, Manitoba, Alberta and Saskatchewan, the Court of Queen’s Bench;

• 2[p3](d)

  in Nova Scotia, British Columbia, Yukon and the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice; and

• 2[p3](e)

  in Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court. (tribunal)

• 2[p9]

  court of appeal means

• 2[p9](a)

  in the Province of Prince Edward Island, the Appeal Division of the Supreme Court; and

• 2[p9](b)

  in all other provinces, the Court of Appeal. (cour d’appel)

• 2[p12]

  extradition agreement means an agreement that is in force, to which Canada is a party and that contains a provision respecting the extradition of persons, other than a specific agreement. (accord)

• 2[p13]

  extradition partner means a State or entity with which Canada is party to an extradition agreement, with which Canada has entered into a specific agreement or whose name appears in the schedule. (partenaire)

• 2[p14]

  International Criminal Court means the International Criminal Court as defined in subsection 2(1) of the Crimes Against Humanity and War Crimes Act. (Cour pénale internationale)

• 2[p15]

  judge means a judge of the court. (juge)

• 2[p16]

  justice has the same meaning as in section 2 of the Criminal Code. (juge de paix)

• 2[p17]

  Minister means the Minister of Justice. (ministre)

• 2[p18]

  specific agreement means an agreement referred to in section 10 that is in force. (accord spécifique)

• 2[p19]

  State or entity means

• 2[p19](a)

  a State other than Canada;

• 2[p19](b)

  a province, state or other political subdivision of a State other than Canada;

• 2[p19](c)

  a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of a State other than Canada;

• 2[p19](d)

  an international criminal court or tribunal; or

• 2[p19](e)

  a territory. (État ou entité)

• 3General principle
• 3(1)

  A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if

• 3(1)(a)

  subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

• 3(1)(b)

  the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

• 3(1)(b)(i)

  in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and

• 3(1)(b)(ii)

  in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

• 3(2)Conduct determinative

  For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.

• 3(3)Extradition of a person who has been sentenced

  Subject to a relevant extradition agreement, the extradition of a person who has been sentenced to imprisonment or another deprivation of liberty may only be granted if the portion of the term remaining is at least six months long or a more severe punishment remains to be carried out.

• 4Further proceedings

  For greater certainty, the discharge of a person under this Act or an Act repealed by section 129 or 130 does not preclude further proceedings, whether or not they are based on the same conduct, with a view to extraditing the person under this Act unless the judge is of the opinion that those further proceedings would be an abuse of process.

• 5Jurisdiction

  A person may be extradited

• 5(a)

  whether or not the conduct on which the extradition partner bases its request occurred in the territory over which it has jurisdiction; and

• 5(b)

  whether or not Canada could exercise jurisdiction in similar circumstances.

• 6Retrospectivity

  Subject to a relevant extradition agreement, extradition may be granted under this Act whether the conduct or conviction in respect of which the extradition is requested occurred before or after this Act or the relevant extradition agreement or specific agreement came into force.

• 6.1No immunity

  Despite any other Act or law, no person who is the subject of a request for surrender by the International Criminal Court or by any international criminal tribunal that is established by resolution of the Security Council of the United Nations and whose name appears in the schedule, may claim immunity under common law or by statute from arrest or extradition under this Act.

• 7Functions of the Minister

  The Minister is responsible for the implementation of extradition agreements, the administration of this Act and dealing with requests for extradition made under them.

• 8Publication in Canada Gazette
• 8(1)

  Unless the extradition agreement has been published under subsection (2), an extradition agreement — or the provisions respecting extradition contained in a multilateral extradition agreement — must be published in the Canada Gazette no later than 60 days after it comes into force.

• 8(2)Publication in Canada Treaty Series

  An extradition agreement — or the provisions respecting extradition contained in a multilateral extradition agreement — may be published in the Canada Treaty Series and, if so published, the publication must be no later than 60 days after it comes into force.

• 8(3)Judicial notice

  Agreements and provisions published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.

• 9Designated extradition partners
• 9(1)

  The names of members of the Commonwealth or other States or entities that appear in the schedule are designated as extradition partners.

• 9(2)Amendments to the schedule

  The Minister of Foreign Affairs, with the agreement of the Minister, may, by order, add to or delete from the schedule the names of members of the Commonwealth or other States or entities.

• 10Specific agreements
• 10(1)

  The Minister of Foreign Affairs may, with the agreement of the Minister, enter into a specific agreement with a State or entity for the purpose of giving effect to a request for extradition in a particular case.

• 10(2)Inconsistency

  For greater certainty, if there is an inconsistency between this Act and a specific agreement, this Act prevails to the extent of the inconsistency.

• 10(3)Evidence

  A certificate issued by or under the authority of the Minister of Foreign Affairs to which is attached a copy of a specific agreement entered into by Canada and a State or entity is conclusive evidence of the agreement and its contents without proof of the signature or official character of the person appearing to have signed the certificate or agreement.

• 11Request to go to Minister
• 11(1)

  A request by an extradition partner for the provisional arrest or extradition of a person shall be made to the Minister.

• 11(2)Provisional arrest request to go to Minister

  A request by an extradition partner for the provisional arrest of a person may also be made to the Minister through Interpol.

• 12Minister’s approval of request for provisional arrest

  The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that

• 12(a)

  the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); and

• 12(b)

  the extradition partner will make a request for the extradition of the person.

• 13Provisional arrest warrant
• 13(1)

  A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that

• 13(1)(a)

  it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;

• 13(1)(b)

  the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and

• 13(1)(c)

  a warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.

• 13(2)Contents of the warrant

  A provisional arrest warrant must

• 13(2)(a)

  name or describe the person to be arrested;

• 13(2)(b)

  set out briefly the offence in respect of which the provisional arrest was requested; and

• 13(2)(c)

  order that the person be arrested without delay and brought before the judge who issued the warrant or before another judge in Canada.

• 13(3)Execution throughout Canada

  A provisional arrest warrant may be executed anywhere in Canada without being endorsed.

• 14Discharge if no proceedings
• 14(1)

  A person who has been provisionally arrested, whether detained or released on judicial interim release, must be discharged

• 14(1)(a)

  when the Minister notifies the court that an authority to proceed will not be issued under section 15;

• 14(1)(b)

  if the provisional arrest was made pursuant to a request made under an extradition agreement that contains a period within which a request for extradition must be made and the supporting documents provided,

• 14(1)(b)(i)

  when the period has expired and the extradition partner has not made the request or provided the documents, or

• 14(1)(b)(ii)

  when the request for extradition has been made and the documents provided within the period but the Minister has not issued an authority to proceed before the expiry of 30 days after the expiry of that period; or

• 14(1)(c)

  if the provisional arrest was not made pursuant to a request made under an extradition agreement or was made pursuant to an extradition agreement that does not contain a period within which a request for extradition must be made and the supporting documents provided,

• 14(1)(c)(i)

  when 60 days have expired after the provisional arrest and the extradition partner has not made the request or provided the documents, or

• 14(1)(c)(ii)

  when the request for extradition has been made and the documents provided within 60 days but the Minister has not issued an authority to proceed before the expiry of 30 additional days.

• 14(2)Extension

  On application of the Attorney General, a judge

• 14(2)(a)

  may extend a period referred to in subsection (1); or

• 14(2)(b)

  shall, in the case of a person arrested on the request of the International Criminal Court, extend a period referred to in subsection (1) for the period specified by the Attorney General, not to exceed 30 days.

• 14(3)Release of person

  In extending a period under subsection (2), the judge may also grant the person judicial interim release or vary the conditions of their judicial interim release.

• 15Minister’s power to issue
• 15(1)

  The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

• 15(2)Competing requests

  If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.

• 15(3)Contents of authority to proceed

  The authority to proceed must contain

• 15(3)(a)

  the name or description of the person whose extradition is sought;

• 15(3)(b)

  the name of the extradition partner; and

• 15(3)(c)

  the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

• 15(4)Copy of authority to proceed

  A copy of an authority to proceed produced by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Part.

• 16Warrant of arrest or summons
• 16(1)

  The Attorney General may, after the Minister issues an authority to proceed, apply ex parte to a judge in the province in which the Attorney General believes the person is or to which the person is on their way, or was last known to be, for the issuance of a summons to the person or a warrant for the arrest of the person.

• 16(2)When provisionally arrested

  If the person has been arrested pursuant to a provisional arrest warrant issued under section 13, the Attorney General need not apply for a summons or warrant under subsection (1).

• 16(3)Issuance of summons or warrant of arrest

  The judge to whom an application is made shall issue a summons to the person, or a warrant for the arrest of the person, in accordance with subsection 507(4) of the Criminal Code, with any modifications that the circumstances require.

• 16(4)Execution throughout Canada

  A warrant that is issued under this section may be executed, and a summons issued under this section may be served, anywhere in Canada without being endorsed.

• 16(5)Date of hearing — summons

  A summons that is issued under this section must

• 16(5)(a)

  set a date for the appearance of the person before a judge that is not later than 15 days after its issuance; and

• 16(5)(b)

  require the person to appear at a time and place stated in it for the purposes of the Identification of Criminals Act.

• 16(6)Effect of appearance

  A person appearing as required by subsection (5) is considered, for the purposes only of the Identification of Criminals Act, to be in lawful custody charged with an indictable offence.

• 17Appearance
• 17(1)

  A person who is arrested under section 13 or 16 is to be brought before a judge or a justice within twenty-four hours after the person is arrested, but if no judge or no justice is available during this time, the person shall be brought before a judge or a justice as soon as possible.

• 17(2)Appearance before justice

  The justice before whom a person is brought under subsection (1) shall order that the person be detained in custody and brought before a judge.

• 18Decision of judge
• 18(1)

  The judge before whom a person is brought following arrest under section 13 or 16 shall

• 18(1)(a)

  if the person has been arrested on the request of the International Criminal Court, order the detention in custody of the person unless

• 18(1)(a)(i)

  the person shows cause, in accordance with subsection 522(2) of the Criminal Code, that their detention in custody is not justified, and

• 18(1)(a)(ii)

  the judge is satisfied that, given the gravity of the alleged offence, there are urgent and exceptional circumstances that justify release — with or without conditions — and that the person will appear as required; or

• 18(1)(b)

  in any other case, order the release, with or without conditions, or detention in custody of the person.

• 18(1.1)Mandatory adjournment

  An application for judicial interim release in respect of a person referred to in paragraph (1)(a) shall, at the request of the Attorney General, be adjourned to await receipt of the recommendations of the Pre-Trial Chamber of the International Criminal Court. If the recommendations are not received within six days, the judge may proceed to hear the application.

• 18(1.2)Recommendations of Pre-Trial Chamber

  If the Pre-Trial Chamber of the International Criminal Court submits recommendations, the judge shall consider them before rendering a decision.

• 18(2)Review by court of appeal

  A decision respecting judicial interim release may be reviewed by a judge of the court of appeal and that judge may

• 18(2)(a)

  confirm the decision;

• 18(2)(b)

  vary the decision; or

• 18(2)(c)

  substitute any other decision that, in the judge’s opinion, should have been made.

• 19Criminal Code

  Part XVI of the Criminal Code applies, with any modifications that the circumstances require, in respect of a person arrested under section 13 or 16 or to whom a summons has been issued under section 16.

• 20Section 679 of the Criminal Code

  Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to the judicial interim release of a person pending

• 20(a)

  a determination of an appeal from an order of committal made under section 29;

• 20(b)

  the Minister’s decision under section 40 respecting the surrender of the person; or

• 20(c)

  a determination of a judicial review of the Minister’s decision under section 40 to order the surrender of the person.

• 21Date of hearing — provisional arrest
• 21(1)

  If a person has been provisionally arrested, the judge before whom the person is brought shall

• 21(1)(a)

  order the person to appear before the court from time to time during the period referred to in paragraph 14(1)(b) or (c); and

• 21(1)(b)

  set a date for the extradition hearing if the Minister has issued an authority to proceed.

• 21(2)Date of hearing after authority to proceed issued

  If a person has been arrested or is a person to whom a summons has been issued under section 16, the judge before whom the person is brought shall set a date for the extradition hearing.

• 21(3)Hearing

  The judge shall set an early date for the extradition hearing, whether that date is in or out of the prescribed sessions of the court.

• 22Application for transfer
• 22(1)

  On application of the Attorney General or the person arrested or to whom a summons has been issued under section 16, the judge shall, if satisfied that the interests of justice so require, order that the proceedings be transferred to another place in Canada and that the person appear before a judge in that place, and

• 22(1)(a)

  if the person is detained, that the person be conveyed by a peace officer to the place; and

• 22(1)(b)

  if the person is not detained or has been released on judicial interim release, that the person be summoned to appear at the place.

• 22(2)Execution throughout Canada

  A summons issued under paragraph (1)(b) may be served anywhere in Canada without being endorsed.

• 22(3)Order respecting expenses

  If the order under subsection (1) was made on the application of the Attorney General, the judge may order that the Attorney General pay the person’s reasonable travel expenses incurred further to the order.

• 23Substitution of authority to proceed
• 23(1)

  The Minister may substitute another authority to proceed at any time before the extradition hearing begins. All documents issued and orders made by the court apply in respect of the new authority to proceed, unless the court, on application of the person or the Attorney General, orders otherwise.

• 23(1.1)New date for hearing

  Where the Minister substitutes another authority to proceed under subsection (1) and the person applies for another date to be set for the beginning of the extradition hearing in order to give the person an opportunity to examine the new authority, the judge may set another date for the hearing.

• 23(2)Amendment of authority to proceed

  The judge may, on application of the Attorney General, amend the authority to proceed after the hearing has begun in accordance with the evidence that is produced during the hearing.

• 23(3)Withdrawal of the authority to proceed

  The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.

• 24Extradition hearing
• 24(1)

  The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.

• 24(2)Application of Part XVIII of the Criminal Code

  For the purposes of the hearing, the judge has, subject to this Act, the powers of a justice under Part XVIII of the Criminal Code, with any modifications that the circumstances require.

• 25Competence

  For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.

• 26Order restricting publication of evidence

  Before beginning a hearing in respect of a judicial interim release or an extradition hearing, a judge may, on application by the person or the Attorney General and on being satisfied that the publication or broadcasting of the evidence would constitute a risk to the holding of a fair trial by the extradition partner, make an order directing that the evidence taken not be published or broadcast before the time that the person is discharged or, if surrendered, the trial by the extradition partner has concluded.

• 27Exclusion of person from hearing

  The presiding judge may make an order excluding any person from the court for all or part of an extradition hearing or hearing in respect of a judicial interim release if the judge is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude the person.

• 28Power to compel witnesses

  A judge who presides over an extradition hearing or a hearing in respect of a judicial interim release may compel a witness to attend the hearing and sections 698 to 708 of the Criminal Code apply, with any modifications that the circumstances require.

• 29Order of committal
• 29(1)

  A judge shall order the committal of the person into custody to await surrender if

• 29(1)(a)

  in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and

• 29(1)(b)

  in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.

• 29(2)Order of committal

  The order of committal must contain

• 29(2)(a)

  the name of the person;

• 29(2)(b)

  the offence set out in the authority to proceed for which the committal is ordered;

• 29(2)(c)

  the place at which the person is to be held in custody; and

• 29(2)(d)

  the name of the extradition partner.

• 29(3)Discharge of person

  A judge shall order the person discharged if the judge does not order their committal under subsection (1).

• 29(4)Relevant date

  The date of the authority to proceed is the relevant date for the purposes of subsection (1).

• 29(5)Extradition when person not present at conviction

  Subject to a relevant extradition agreement, if a person has been tried and convicted without the person being present, the judge shall apply paragraph (1)(a).

• 30Authority 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.

• 30(2)Duration of order

  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).

• 31Definition of document

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

• 32Evidence
• 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:

• 32(1)(a)

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

• 32(1)(b)

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

• 32(1)(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.

• 32(2)Exception — Canadian evidence

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

• 33Record of the case
• 33(1)

  The record of the case must include

• 33(1)(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

• 33(1)(b)

  in the case of a person sought for the imposition or enforcement of a sentence,

• 33(1)(b)(i)

  a copy of the document that records the conviction of the person, and

• 33(1)(b)(ii)

  a document describing the conduct for which the person was convicted.

• 33(2)Other documents — record of the case

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

• 33(3)Certification of record of the case

  A record of the case may not be admitted unless

• 33(3)(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

• 33(3)(a)(i)

  is sufficient under the law of the extradition partner to justify prosecution, or

• 33(3)(a)(ii)

  was gathered according to the law of the extradition partner; or

• 33(3)(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.

• 33(4)Authentication not required

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

• 33(5)Record of the case and supplements

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

• 34Oath or solemn affirmation

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

• 35No proof of signature

  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.

• 36Translated documents

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

• 37Evidence of identity

  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:

• 37(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

• 37(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.

• 38Report 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:

• 38(1)(a)

  a copy of the order;

• 38(1)(b)

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

• 38(1)(c)

  any report that the judge thinks fit.

• 38(2)Right to appeal

  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.

• 39Property 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.

• 39(2)Conditions of order

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

• 39(2)(a)

  respecting the preservation and return to Canada of a thing; and

• 39(2)(b)

  respecting the protection of the interests of third parties.

• 40Surrender
• 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.

• 40(2)When refugee claim

  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.

• 40(3)Powers of the Minister

  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.

• 40(4)No surrender

  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.

• 40(5)Extension of time

  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: