Judicial Review of Minister's Order

Review of order

57. (1) Despite the Federal Court 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.

Application

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

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.

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.

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.

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).

Grounds of review

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

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.

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.

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

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.

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.

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.

Escape

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.

Arrest

(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.

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.

Waiver of period of time

(2) The person may waive the period referred to in paragraph (1)(a) if they do so in writing.

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.

Postpone-
ment 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.

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.

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.

Temporary Surrender

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).

Time limits

(2) An order of temporary surrender is subject to the time limits set out in subsection 40(1) and (5) and paragraph 41(1)(c).

Assurances

(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.

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.

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.

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.

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.

Notice

(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.

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.

Waiver of return

(10) The Minister may, after consultation with the Solicitor General of Canada or the appropriate provincial minister responsible for corrections, waive the return of the person by the extradition partner.

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).

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.

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.

Remedy

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.