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This enactment creates a comprehensive scheme, consistent with
modern legal principles and recent international developments, in the
field of extradition.
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The enactment applies to all requests for extradition, whether
presented under a specific agreement, bilateral treaty or multilateral
convention, by a Commonwealth State, a foreign country or an
international criminal court or tribunal. It sets out in detail the
procedures applicable to the extradition process, including the
pre-hearing process and the hearing itself.
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It allows for the admission into evidence of documentation
contained in a certified record of the case. It provides that extradition
will be based on the principle of dual criminality, providing that the
conduct would be punishable both in Canada, if it had occurred in
Canada, and in the jurisdiction of the extradition partner by deprivation
of liberty for no less than a specified minimum period, as set out in the
Act or an extradition agreement.
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The enactment specifies the considerations for the extradition judge
in deciding whether the person sought should be ordered to await
surrender to the requesting state. It also specifies the considerations,
including human rights safeguards, for the Minister of Justice in
deciding whether to surrender the person sought.
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It avoids duplication of decisions and minimizes the delay when a
requested person has made a refugee claim or is otherwise the subject
of immigration removal proceedings under the Immigration Act.
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The enactment also permits the use of video and audio-link
technology for the purpose of providing testimony from witnesses
located in Canada or abroad.
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This enactment repeals the Extradition Act and the Fugitive
Offenders Act and makes other related and consequential amendments.
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Clause 86: The relevant portion of subsection 121(1)
reads as follows:
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121. (1) Subject to section 102 and notwithstanding sections 119 to
120.3 or any order made under section 743.6 of the Criminal Code,
parole may be granted at any time to an offender
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(d) who is the subject of an order to be surrendered under the
Extradition Act or the Fugitive Offenders Act and to be detained until
surrendered.
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Clause 87: Subsection 128(3) reads as follows:
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(3) Notwithstanding subsection (1), for the purposes of subsection
50(2) of the Immigration Act, section 25 of the Extradition Act and
section 17 of the Fugitive Offenders Act, the sentence of an offender
who has been released on full parole or statutory release shall be
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.
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Clause 88: The relevant portion of subsection 2(1)
reads as follows:
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2. (1) The following persons may be fingerprinted or photographed
or subjected to such other measurements, processes and operations
having the object of identifying persons as are approved by order of the
Governor in Council:
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(b) any person who has been apprehended under the Extradition Act
or the Fugitive Offenders Act; or
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Clause 89: Section 46 reads as follows:
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46. Where, on an application for that purpose, it is made to appear to
any court or judge that any court or tribunal of competent jurisdiction
in the Commonwealth and Dependent Territories or in any foreign
country, 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 his 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.
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Clause 90: New.
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Clause 91: Subsection 51(2) reads as follows:
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(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 any court of justice in the Commonwealth and
Dependent Territories, or from any foreign tribunal, in which the civil,
commercial or criminal matter is pending, shall be deemed and taken to
be sufficient evidence in support of the application.
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Clause 92: (1) New.
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(2) Subsection 131(3) reads as follows:
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(3) Subsection (1) does not apply to a statement referred to in that
subsection that is made by a person who is not specially permitted,
authorized or required by law to make that statement.
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Clause 93: New.
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Clause 94: New.
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Clause 95: New.
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Clause 96: New.
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Clause 97: (1) and (2) The definitions ``foreign state'',
``offence'', ``request'' and ``treaty'' read as follows:
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``foreign state'' means a state that is a party to a treaty;
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``offence'' means an offence within the meaning of the relevant treaty;
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``request'' means a request for assistance presented pursuant to a treaty;
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``treaty'' means a treaty, convention or other international agreement
that is in force, to which Canada is a party and of which the primary
purpose or an important part is to provide for mutual legal assistance
in criminal matters.
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(3) New.
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(4) Subsection 2(2) reads as follows:
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(2) For the purposes of the definition ``treaty'' in subsection (1), an
important part of a treaty provides for mutual legal assistance in
criminal matters if the treaty contains provisions respecting all of the
following matters:
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(a) the right of Canada, for reasons of security, sovereignty or public
interest, to refuse to give effect to a request;
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(b) the restriction of mutual legal assistance to acts that, if committed
in Canada, would be indictable offences;
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(c) the confidentiality of information sent by Canada to a foreign
state pursuant to a request for legal assistance;
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(d) the types of legal assistance available under Part I for giving
effect to a request presented to Canada pursuant to the treaty; and
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(e) the information that must be set out in requests for legal assistance
presented by a foreign state in order that effect may be given to those
requests under this Act.
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Clause 98: Subsection 3(2) reads as follows:
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(2) Nothing in this Act or a treaty shall be construed so as to abrogate
or derogate from an agreement, arrangement or practice respecting
cooperation between a Canadian competent authority and a foreign or
international authority or organization.
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Clause 99: Sections 4 and 5 read as follows:
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4. (1) Where a treaty comes into force or ceases to be in force, the
Governor in Council shall, by order, add to or delete from the schedule
the name of the foreign state that is a party to the treaty and the date that
the treaty came into force.
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(2) The Governor in Council shall, by order,
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(a) add to the schedule the names of the foreign states that are parties
to a multilateral treaty to which Canada accedes and the date of the
accession;
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(b) add to the schedule the name of a foreign state that accedes to a
multilateral treaty to which Canada is a party and the date of the
accession;
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(c) delete from the schedule the name of a foreign state that ceases
to be a party to a multilateral treaty to which Canada is a party and
the relevant date; and
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(d) delete from the schedule the names of all of the foreign states that
are parties to a multilateral treaty to which Canada has ceased to be
a party and the relevant dates.
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5. The Minister shall cause every treaty to be published in the
Canada Gazette within sixty days after its coming into force or after
Canada accedes to the treaty and a treaty once published shall be
judicially noticed.
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Clause 100: Subsections 6(1) to (3) read as follows:
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6. (1) Where there is no treaty between Canada and another state, the
Minister of Foreign Affairs may, with the agreement of the Minister,
enter into an administrative arrangement with that other state providing
for legal assistance with respect to an investigation specified therein
relating to an act that, if committed in Canada, would be an indictable
offence.
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(2) Where a treaty expressly states that legal assistance may be
provided with respect to acts that do not constitute an offence within the
meaning of the treaty, the Minister of Foreign Affairs may, in
exceptional circumstances and with the agreement of the Minister, enter
into an administrative arrangement with the foreign state concerned,
providing for legal assistance with respect to an investigation specified
therein relating to an act that, if committed in Canada, would be a
contravention of an Act of Parliament or of the legislature of a province.
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(3) An administrative arrangement entered into under subsection (1)
or (2) may be implemented by the Minister, pursuant to this Act, in the
same manner as a treaty.
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Clause 101: Sections 7 and 8 read as follows:
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7. (1) The Minister is responsible for the implementation of every
treaty and the administration of this Act.
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(2) Where a request is presented to the Minister by a foreign state or
a Canadian competent authority, the Minister shall deal with the request
in accordance with the relevant treaty and this Act.
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8. The Minister may not give effect by means of the provisions of this
Part to a request unless the relevant treaty provides for mutual legal
assistance with respect to the subject-matter of the request.
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Clause 102: (1) Subsection 9(1) reads as follows:
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9. (1) Where the Minister approves a request of a foreign state to
enforce the payment of a fine imposed in respect of an offence by a court
of criminal jurisdiction of the foreign state, a court in Canada has
jurisdiction to enforce the payment of the fine, and the fine is
recoverable in civil proceedings instituted by the foreign state, as if the
fine had been imposed by a court in Canada.
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(2) Subsection 9(3) reads as follows:
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(3) For the purposes of this section, ``fine'' includes any pecuniary
penalty determined by a court of criminal jurisdiction of a foreign state
to represent the value of any property, benefit or advantage, irrespective
of its location, obtained or derived directly or indirectly as a result of the
commission of an offence.
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Clause 103: Subsection 11(1) reads as follows:
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11. (1) Where the Minister approves a request of a foreign state to
have a search or a seizure carried out in Canada regarding an offence
with respect to which the foreign state has jurisdiction, the Minister shall
provide a competent authority with any documents or information
necessary to apply for a search warrant.
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Clause 104: (1) The relevant portion of subsection
12(1) reads as follows:
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12. (1) A judge of a province to whom an application is made under
subsection 11(2) may issue a search warrant authorizing a peace officer
named therein to execute it anywhere in the province, where the judge
is satisfied by statements under oath that there are reasonable grounds
to believe that
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(a) an offence has been committed with respect to which the foreign
state has jurisdiction;
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(2) The relevant portion of subsection 12(4) reads as
follows:
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(4) A search warrant issued under subsection (1) may be in Form 5
in Part XXVIII of the Criminal Code, varied to suit the case, and must
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(b) state that, at that hearing, an order will be sought for the sending
to the foreign state of the records or things seized in execution of the
warrant; and
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Clause 105: The relevant portion of subsection 15(1)
reads as follows:
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15. (1) At the hearing to consider the execution of a warrant issued
under section 12, after having considered any representations of the
Minister, the competent authority, the person from whom a record or
thing was seized in execution of the warrant and any person who claims
to have an interest in the record or thing so seized, the judge who issued
the warrant or another judge of the same court may
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(b) in any other case, order that a record or thing seized in execution
of the warrant be sent to the foreign state mentioned in subsection
11(1) and include in the order such terms and conditions as the judge
considers desirable, including terms and conditions
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Clause 106: Section 16 reads as follows:
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16. No record or thing seized that has been ordered under section 15
to be sent to the foreign state mentioned in subsection 11(1) shall be so
sent until the Minister is satisfied that the foreign state has agreed to
comply with any terms or conditions imposed in respect of the sending
abroad of the record or thing.
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Clause 107: Subsection 17(1) reads as follows:
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17. (1) Where the Minister approves a request of a foreign state to
obtain, by means of an order of a judge, evidence regarding an offence
with respect to which the foreign state has jurisdiction, the Minister shall
provide a competent authority with any documents or information
necessary to apply for the order.
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Clause 108: (1) The relevant portion of subsection
18(1) reads as follows:
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18. (1) A judge to whom an application is made under subsection
17(2) may make an order for the gathering of evidence, where he is
satisfied that there are reasonable grounds to believe that
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(a) an offence has been committed with respect to which the foreign
state has jurisdiction; and
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(2) The relevant portion of subsection 18(2) reads as
follows:
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(2) An order made under subsection (1) must provide for the manner
in which the evidence is to be obtained in order to give effect to the
request mentioned in subsection 17(1) and may
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(b) order a person named therein to make a copy of a record or to
make a record from data and to produce the copy or record to the
person designated under paragraph (c), order the person to produce
any record or thing in his possession or control to the person so
designated and provide, where appropriate, for any affidavit or
certificate that, pursuant to the request, is to accompany any copy,
record or thing so produced; and
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(3) The relevant portion of subsection 18(7) reads as
follows:
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(7) A person named in an order made under subsection (1) may
refuse to answer one or more questions or to produce certain records or
things to the person designated under paragraph (2)(c) if
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(b) to require the person to answer the questions or to produce the
records or things would constitute a breach of a privilege recognized
by a law in force in the foreign state that presented the request
mentioned in subsection 17(1); or
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(c) to answer the questions or to produce the records or things would
constitute the commission by the person of an offence against a law
in force in the foreign state that presented the request mentioned in
subsection 17(1).
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Clause 109: Subsection 19(4) reads as follows:
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(4) A copy of every statement given under subsection 18(9) that
contains reasons that purport to be based on a law in force in the foreign
state shall be appended to any order that the judge makes under section
20.
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Clause 110: (1) Subsection 20(1) reads as follows:
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20. (1) A judge to whom a report is made under subsection 19(1) may
order that there be sent to the foreign state the report and any record or
thing produced, as well as a copy of the order accompanied by a copy
of any statement given under subsection 18(9) that contains reasons that
purport to be based on a law in force in the foreign state, as well as any
determination of the judge made under subsection 19(3) that the reasons
contained in a statement given under subsection 18(9) are
well-founded.
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(2) Subsection 20(3) reads as follows:
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(3) The execution of an order made under subsection 18(1) that was
not completely executed because of a refusal, by reason of a law in force
in the foreign state, to answer one or more questions or to produce
certain records or things to the person designated under paragraph
18(2)(c) may be continued where a court of the foreign state or a person
designated by the foreign state determines that the reasons are not
well-founded and the foreign state so advises the Minister.
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Clause 111: Section 21 reads as follows:
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21. No record or thing that has been ordered under section 20 to be
sent to the foreign state mentioned in subsection 17(1) shall be so sent
until the Minister is satisfied that the foreign state has agreed to comply
with any terms or conditions imposed in respect of the sending abroad
of the record or thing.
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Clause 112: The relevant portion of section 22 reads
as follows:
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22. A person named in an order made under subsection 18(1)
commits a contempt of court if the person refuses to answer a question
or to produce a record or thing to the person designated under paragraph
18(2)(c)
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(b) where the person so named was already asked the same question
or requested to produce the same record or thing and all of the
reasons on which that person based the earlier refusal were
determined not to be well-founded by
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(ii) a court of the foreign state or by a person designated by the
foreign state, if the reasons were based on a law in force in the
foreign state.
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Clause 113: New.
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Clause 114: (1) Subsection 23(1) reads as follows:
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23. (1) The judge who made the order under subsection 18(1) or
another judge of the same court may issue a warrant for the arrest of the
person named in the order where the judge is satisfied, on an
information being made before him in writing and under oath, that
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(a) the person did not attend or remain in attendance as required by
the order or is about to abscond;
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(b) the order was personally served on the person; and
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(c) the person is likely to give material evidence.
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(2) Subsection 23(3) reads as follows:
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(3) A peace officer who arrests a person in execution of a warrant
issued under subsection (1) shall forthwith bring the person or cause the
person to be brought before the judge who issued the warrant or another
judge of the same court who may, to ensure compliance with the order
made under subsection 18(1), order that the person be detained in
custody or released on recognizance, with or without sureties.
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Clause 115: Subsection 24(1) reads as follows:
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24. (1) Where the Minister approves a request of a foreign state to
have a detained person who is serving a term of imprisonment in
Canada transferred to the foreign state, the Minister shall provide a
competent authority with any documents or information necessary to
apply for a transfer order.
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Clause 116: (1) Subsection 25(1) reads as follows:
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25. (1) Where the judge to whom an application is made under
subsection 24(2) is satisfied, having considered, among other things,
any documents filed or information given in support of the application,
that the detained person consents to the transfer and that the foreign state
has requested the transfer for a fixed period, the judge may make a
transfer order.
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(2) The relevant portion of subsection 25(3) reads as
follows:
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(3) A transfer order made under subsection (1) must
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(c) order the person receiving the detained person into custody under
paragraph (b) to take him to the foreign state and, on the return of the
detained person to Canada, to return that person to the place of
confinement where he was when the order was made;
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Clause 117: (1) and (2) Subsections 30(1) and (2) read
as follows:
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30. (1) Where the Minister approves the request of a foreign state to
have an exhibit that was admitted in evidence in a proceeding in respect
of an offence in a court in Canada lent to the foreign state, the Minister
shall provide a competent authority with any documents or information
necessary to apply for a loan order.
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(2) After having given reasonable notice to the attorney general of
the province where the exhibit sought to be lent to the foreign state
mentioned in subsection (1) is located and to the parties to the
proceeding, the competent authority who is provided with the
documents or information shall apply for a loan order to the court that
has possession of the exhibit.
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Clause 118: Subsection 31(1) reads as follows:
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31. (1) Where the court to which an application is made under
subsection 30(2) is satisfied that the foreign state has requested the loan
for a fixed period and has agreed to comply with the terms and
conditions that the court proposes to include in any loan order, the court
may, after having considered any representations of the persons to
whom notice of the application was given in accordance with
subsection 30(2), make a loan order.
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Clause 119: Section 34 reads as follows:
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34. The burden of proving that an exhibit lent to a foreign state
pursuant to a loan order made under subsection 31(1) and returned to
Canada is not in the same condition as it was when the loan order was
made or that it was tampered with after the loan order was made is on
the party who makes that allegation and, in the absence of that proof, the
exhibit shall be deemed to have been continuously in the possession of
the court that made the loan order.
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Clause 120: The headings before section 36 and
sections 36 and 37 read as follows:
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36. (1) In a proceeding with respect to which Parliament has
jurisdiction, a record or a copy thereof and any affidavit, certificate or
other statement pertaining to the record made by a person who has
custody or knowledge of the record, sent to the Minister by a foreign
state in accordance with a Canadian request, is not inadmissible in
evidence by reason only that a statement contained in the record, copy,
affidavit, certificate or other statement is hearsay or a statement of
opinion.
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(2) For the purpose of determining the probative value of a record or
a copy of a record admitted in evidence under this Act, the trier of fact
may examine the record or copy, receive evidence orally or by affidavit,
or by a certificate or other statement pertaining to the record in which
a person attests that the certificate or statement is made in conformity
with the laws of a foreign state, whether or not the certificate or
statement is in the form of an affidavit attested to before an official of
the foreign state, including evidence as to the circumstances in which
the information contained in the record or copy was written, stored or
reproduced, and draw any reasonable inference from the form or
content of the record or copy.
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37. In a proceeding with respect to which Parliament has jurisdiction,
a thing and any affidavit, certificate or other statement pertaining to the
thing made by a person in a foreign state as to the identity and
possession of the thing from the time it was obtained until its sending
to a competent authority in Canada by the foreign state in accordance
with a Canadian request, are not inadmissible in evidence by reason
only that the affidavit, certificate or other statement contains hearsay or
a statement of opinion.
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Clause 121: Section 39 reads as follows:
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39. The service of a document in a foreign state may be proved by
affidavit of the person who served it.
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Clause 122: The headings before section 40 read as
follows:
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Clause 123: Subsection 40(1) reads as follows:
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40. (1) The Minister may, in order to give effect to a request of a
Canadian competent authority, authorize a person in a foreign state who
is a member of an inadmissible class of persons described in section 19
of the Immigration Act to come into Canada at a place designated by the
Minister and to go to and remain in a place in Canada so designated for
the period of time specified by the Minister, and the Minister may make
the authorization subject to any conditions that the Minister considers
desirable.
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Clause 124: The relevant portion of subsection 41(1)
reads as follows:
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41. (1) A person who is in Canada pursuant to a request to give
evidence in a proceeding or to give assistance in relation to an
investigation or proceeding
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(a) may not be detained, prosecuted or punished in Canada for any
act or omission that occurred before the person's departure from the
foreign state pursuant to the request;
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(b) is not subject to civil process in respect of any act or omission that
occurred before the person's departure from the foreign state
pursuant to the request; and
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Clause 125: Subsection 42(1) reads as follows:
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42. (1) Where the Minister, in order to give effect to a request of a
Canadian competent authority, authorizes a person who is detained in
a foreign state to be transferred to Canada for a period of time specified
by the Minister, a judge of the province to which the person is to be
transferred may make an order for the detention of the person anywhere
in Canada and for the return of the person to the foreign state.
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Clause 126: Section 43 reads as follows:
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43. Where a Canadian request is presented to a foreign state and a
person in the foreign state refuses to answer one or more questions or
to give up certain records or things by reason of a law in force in Canada,
a judge may determine the validity of the refusal on application made,
on reasonable notice to the person, by a Canadian competent authority.
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Clause 127: Subsection 44(1) reads as follows:
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44. (1) Subject to subsection 38(2), a record sent to the Minister by
a foreign state in accordance with a Canadian request is privileged and
no person shall disclose to anyone the record or its purport or the
contents of the record or any part thereof before the record, in
compliance with the conditions on which it was so sent, is made public
or disclosed in the course or for the purpose of giving evidence.
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