PART 2Extradition from Canada (continued)
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.
Marginal note:Appearance before justice
(2) 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.
Marginal note:Decision of judge
18 (1) The judge before whom a person is brought following arrest under section 13 or 16 shall
(a) if the person has been arrested on the request of the International Criminal Court, order the detention in custody of the person unless
(i) the person shows cause, in accordance with subsection 522(2) of the Criminal Code, that their detention in custody is not justified, and
(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
(b) in any other case, order the release, with or without conditions, or detention in custody of the person.
Marginal note:Mandatory adjournment
(1.1) 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.
Marginal note:Recommendations of Pre-Trial Chamber
(1.2) If the Pre-Trial Chamber of the International Criminal Court submits recommendations, the judge shall consider them before rendering a decision.
Marginal note:Review by court of appeal
(2) A decision respecting judicial interim release may be reviewed by a judge of the court of appeal and that judge may
(a) confirm the decision;
(b) vary the decision; or
(c) substitute any other decision that, in the judge’s opinion, should have been made.
- 1999, c. 18, s. 18
- 2000, c. 24, s. 50
Marginal note:Criminal Code
19 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.
Marginal note:Section 679 of the Criminal Code
(a) a determination of an appeal from an order of committal made under section 29;
(b) the Minister’s decision under section 40 respecting the surrender of the person; or
(c) a determination of a judicial review of the Minister’s decision under section 40 to order the surrender of the person.
Marginal note:Date of hearing — provisional arrest
21 (1) If a person has been provisionally arrested, the judge before whom the person is brought shall
(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
(b) set a date for the extradition hearing if the Minister has issued an authority to proceed.
Marginal note:Date of hearing after authority to proceed issued
(2) 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.
(3) 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.
Marginal note:Application 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
(a) if the person is detained, that the person be conveyed by a peace officer to the place; and
(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.
Marginal note:Execution throughout Canada
(2) A summons issued under paragraph (1)(b) may be served anywhere in Canada without being endorsed.
Marginal note:Order respecting expenses
(3) 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.
Substitution and Amendment of Authority to Proceed
Marginal note:Substitution 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.
Marginal note:New date for hearing
(1.1) 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.
Marginal note:Amendment of authority to proceed
(2) 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.
Marginal note:Withdrawal of the authority to proceed
(3) 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.
Marginal note:Extradition hearing
24 (1) The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.
Marginal note:Application of Part XVIII of the Criminal Code
(2) 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.
25 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.
Marginal note:Order restricting publication of evidence
26 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.
Marginal note:Exclusion of person from hearing
27 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.
Marginal note:Power to compel witnesses
28 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.
Marginal note:Order of committal
29 (1) A judge shall order the committal of the person into custody to await surrender if
(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
(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.
Marginal note:Order of committal
(2) The order of committal must contain
(a) the name of the person;
(b) the offence set out in the authority to proceed for which the committal is ordered;
(c) the place at which the person is to be held in custody; and
(d) the name of the extradition partner.
Marginal note:Discharge of person
(3) A judge shall order the person discharged if the judge does not order their committal under subsection (1).
Marginal note:Relevant date
(4) The date of the authority to proceed is the relevant date for the purposes of subsection (1).
Marginal note:Extradition when person not present at conviction
(5) 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).
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.
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.
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