PART 4

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AND RELATED AMENDMENTS AND REPEALS

Transitional Provisions

Cases pending - former Extradition Act

84. The Extradition Act repealed by section 129 of this Act applies to a matter respecting the extradition of a person as though it had not been repealed, if the hearing in respect of the extradition had already begun on the day on which this Act comes into force.

Cases pending - Fugitive Offenders Act

85. The Fugitive Offenders Act repealed by section 130 of this Act applies to a matter respecting the return under that Act of a person as though it had not been repealed, if the hearing before the provincial court judge in respect of the return had already begun on the day on which this Act comes into force.

Consequential Amendments

1992, c. 20

Corrections and Conditional Release Act

86. Paragraph 121(1)(d) of the Corrections and Conditional Release Act is replaced by the following:

    (d) who is the subject of an order of surrender under the Extradition Act and who is to be detained until surrendered.

1992, c. 42, s. 42 and par. 69(i)(E)

87. Subsection 128(3) of the Act is replaced by the following:

Deeming

(3) Despite subsection (1), for the purposes of subsection 50(2) of the Immigration Act and section 40 of the Extradition Act, the sentence of an offender who has been released on full parole or statutory release is deemed to be completed unless the full parole or statutory release has been suspended, terminated or revoked or the offender has returned to Canada before the expiration of the sentence according to law.

R.S., c.I-1

Identification of Criminals Act

1992, c. 47, s. 74(1)

88. Paragraph 2(1)(b) of the Identification of Criminals Act is replaced by the following:

    (b) any person who has been apprehended under the Extradition Act; or

Related Amendments

R.S., c. C-5

Canada Evidence Act

89. Section 46 of the Canada Evidence Act is replaced by the following:

Order for examination of witness in Canada

46. (1) If , on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada , before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.

Video links, etc.

(2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.

90. Section 50 of the Act is amended by adding the following after subsection (1):

Laws about witnesses to apply - video links etc.

(1.1) Despite subsection (1), when a party or witness gives evidence under subsection 46(2), the evidence shall be given as though they were physically before the court or tribunal outside Canada, for the purposes of the laws relating to evidence and procedure but only to the extent that giving the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.

Contempt of court in Canada

(1.2) When a party or witness gives evidence under subsection 46(2), the Canadian law relating to contempt of court applies with respect to a refusal by the party or witness to answer a question or to produce a writing or document referred to in subsection 46(1), as ordered under that subsection by the court or judge.

91. Subsection 51(2) of the Act is replaced by the following:

Letters rogatory

(2) In the absence of any order in relation to the evidence to be produced in support of the application referred to in subsection (1), letters rogatory from a court or tribunal outside Canada in which the civil, commercial or criminal matter is pending, are deemed and taken to be sufficient evidence in support of the application.

R.S,. c. C-46

Criminal Code

92. (1) Section 131 of the Criminal Code is amended by adding the following after subsection (1):

Video links, etc.

(1.1) Subject to subsection (3), every person who gives evidence under subsection 46(2) of the Canada Evidence Act, or gives evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act, commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement was made under oath or solemn affirmation in accordance with subsection (1), so long as the false statement was made in accordance with any formalities required by the law of the place outside Canada in which the person is virtually present or heard.

R.S., c. 27 (1st Supp.), s. 17

(2) Subsection 131(3) of the Act is replaced by the following:

Application

(3) Subsections (1) and (1.1) do not apply to a statement referred to in either of those subsections that is made by a person who is not specially permitted, authorized or required by law to make that statement.

93. Section 136 of the Act is amended by adding the following after subsection (1):

Evidence in specific cases

(1.1) Evidence given under section 714.1, 714.2, 714.3 or 714.4 or under subsection 46(2) of the Canada Evidence Act or evidence or a statement given pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act is deemed to be evidence given by a witness in a judicial proceeding for the purposes of subsection (1).

94. The Act is amended by adding the following after section 700:

Video links, etc.

700.1 (1) If a person is to give evidence under section 714.1 or 714.3 or under subsection 46(2) of the Canada Evidence Act - or is to give evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act - at a place within the jurisdiction of a court referred to in subsection 699(1) or (2) where the technology is available, a subpoena shall be issued out of the court to order the person to give that evidence at such a place.

Sections of Criminal Code

(2) Sections 699, 700 and 701 to 703.2 apply, with any modifications that the circumstances require, to a subpoena issued under this section.

95. The Act is amended by adding the following after section 714:

Video and Audio Evidence

Video links, etc. - witness in Canada

714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including

    (a) the location and personal circumstances of the witness;

    (b) the costs that would be incurred if the witness had to be physically present; and

    (c) the nature of the witness' anticipated evidence.

Video links, etc. - witness outside Canada

714.2 (1) A court shall receive evidence given by a witness outside Canada by means of technology that permits the witness to testify in the virtual presence of the parties and the court unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

Notice

(2) A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than ten days before the witness is scheduled to testify.

Audio evidence - witness in Canada

714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including

    (a) the location and personal circumstances of the witness;

    (b) the costs that would be incurred if the witness had to be physically present;

    (c) the nature of the witness' anticipated evidence; and

    (d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

Audio evidence - witness outside Canada

714.4 The court may receive evidence given by a witness outside Canada by means of technology that permits the parties and the court in Canada to hear and examine the witness, if the court is of the opinion that it would be appropriate, considering all the circumstances including

    (a) the nature of the witness' anticipated evidence; and

    (b) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

Oath or affirmation

714.5 The evidence given under section 714.2 or 714.4 shall be given

    (a) under oath or affirmation in accordance with Canadian law;

    (b) under oath or affirmation in accordance with the law in the place in which the witness is physically present; or

    (c) in any other manner that demonstrates that the witness understands that they must tell the truth.

Other laws about witnesses to apply

714.6 When a witness who is outside Canada gives evidence under section 714.2 or 714.4, the evidence is deemed to be given in Canada, and given under oath or affirmation in accordance with Canadian law, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

Costs of technology

714.7 A party who wishes to call a witness to give evidence by means of the technology referred to in section 714.1, 714.2, 714.3 or 714.4 shall pay any costs associated with the use of the technology.

Consent

714.8 Nothing in sections 714.1 to 714.7 is to be construed as preventing a court from receiving evidence by means of the technology referred to in sections 714.1 to 714.4 if the parties so consent.

R.S., c. I-2

Immigration Act

96. Section 69.1 of the Immigration Act is amended by adding the following after subsection (11):

If authority to proceed under Extradition Act

(12) If an authority to proceed has been issued under section 15 of the Extradition Act with respect to a person for an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of 10 years or more, a hearing under subsection (1) or (2) shall not be commenced with respect to the person, or if commenced, shall be adjourned, until the final decision under that Act with respect to the discharge or surrender of the person has been made.

When person discharged under Extradition Act

(13) If the person is finally discharged under the Extradition Act, the hearing may be commenced or continued, or the Refugee Division may proceed, as though there had not been any proceedings under the Extradition Act.

When person ordered surrendered under Extradition Act

(14) If the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under section 29 of that Act is punishable under an Act of Parliament by a maximum term of imprisonment of 10 years or more, the order of surrender is deemed to be a decision by the Refugee Division that the person is not a Convention refugee because of paragraph (b) of Section F of its Article 1, except that no appeal or judicial review of the decision shall be permitted except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act.

If no claim made before Extradition Act order

(15) For greater certainty, if the person has not made a claim under section 44 before the order of surrender referred to in subsection (14), the person may not do so before the surrender.

R.S., c. 30 (4th Supp.)

Mutual Legal Assistance in Criminal Matters Act

97. (1) The definitions ``foreign state'' and ``treaty'' in subsection 2(1) of the Mutual Legal Assistance in Criminal Matters Act are repealed.

(2) The definitions ``offence'' and ``request'' in subsection 2(1) of the Act are replaced by the following:

``offence''
« infrac-
tion »

``offence'' means an offence within the meaning of the relevant agreement ;

``request''
« deman-
de »

``request'' means a request for assistance presented pursuant to an agreement ;

(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

``agreement''
« accord »

``agreement'' means a treaty, convention or other international agreement that is in force, to which Canada is a party and that contains a provision respecting mutual legal assistance in criminal matters;

``state or entity''
« État ou entité »

``state or entity'' means

      (a) a state, a province, state or political subdivision of the state, or a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of the state, that is a party to an agreement with Canada, or

      (b) an international criminal court or tribunal, the name of which appears in the schedule;

(4) Subsection 2(2) of the Act is repealed.

98. Subsection 3(2) of the Act is replaced by the following:

Preservation of informal arrangements

(2) Nothing in this Act or an agreement shall be construed so as to abrogate or derogate from an arrangement or practice respecting cooperation between a Canadian competent authority and a foreign or international authority or organization.

99. Sections 4 and 5 of the Act are replaced by the following:

Designation

4. (1) The names of international criminal courts and tribunals that appear in the schedule are designated as states or entities for the purpose of this Act.

Amendments to schedule

(2) The Minister of Foreign Affairs may, with the agreement of the Minister, by order, add to or delete from the schedule the names of international criminal courts and tribunals.