1st Session, 36th Parliament,
46-47 Elizabeth II, 1997-98

The House of Commons of Canada

BILL C-40

An Act respecting extradition, to amend the Canada Evidence Act, the Criminal Code, the Immigration Act and the Mutual Legal Assistance in Criminal Matters Act and to amend and repeal other Acts in consequence

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Extradition Act.

PART 1

INTERPRETATION

Definitions

2. The definitions in this section apply in this Act.

``Attorney General''
« procureur général »

``Attorney General'' means the Attorney General of Canada.

``court''
« tribunal »

``court'' means

      (a) in Ontario, the Ontario Court (General Division);

      (b) in Quebec, the Superior Court;

      (c) in New Brunswick, Manitoba, Alberta and Saskatchewan, the Court of Queen's Bench;

      (d) in Nova Scotia, British Columbia, the Northwest Territories, the Yukon Territory and Nunavut, the Supreme Court; and

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

``court of appeal''
« cour d'appel »

``court of appeal'' means

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

      (b) in all other provinces, the Court of Appeal.

``extradi-
tion agreement''
« accord »

``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.

``extradi-
tion partner''
« partenai-
re »

``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.

``judge''
« juge »

``judge'' means a judge of the court.

``justice''
« juge de paix »

``justice'' has the same meaning as in section 2 of the Criminal Code.

``Minister''
« ministre »

``Minister'' means the Minister of Justice.

``specific agreement''
« accord spécifique »

``specific agreement'' means an agreement referred to in section 10 that is in force;

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

``State or entity'' means

      (a) a State other than Canada;

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

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

      (d) an international criminal court or tribunal; or

      (e) a territory.

PART 2

EXTRADITION FROM CANADA

Extraditable Conduct

General 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

    (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

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

      (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

      (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.

Conduct determinative

(2) 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.

Extradition of a person who has been sentenced

(3) 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.

Further proceedings

4. 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.

Jurisdiction

5. A person may be extradited

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

    (b) whether or not Canada could exercise jurisdiction in similar circumstances.

Retrospecti-
vity

6. 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.

Functions of the Minister

Functions of the Minister

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

Publication of Extradition Agreements

Publication 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.

Publication in Canada Treaty Series

(2) 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.

Judicial notice

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

Designated States and Entities

Designated 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.

Amendments to the schedule

(2) 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.

Specific Agreements

Specific 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.

Inconsistency

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

Evidence

(3) 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.

Minister's Power to Receive Requests

Request 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.

Provisional arrest request to go to Minister

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

Warrant for Provisional Arrest

Minister's approval of request for provisional arrest

12. 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

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

    (b) the extradition partner will make a request for the extradition of the person.

Provisional 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

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

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

    (c) a warrant for the person's arrest or an order of a similar nature has been issued or the person has been convicted.

Contents of the warrant

(2) A provisional arrest warrant must

    (a) name or describe the person to be arrested;

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

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

Execution throughout Canada

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

Discharge if no proceedings

14. (1) A person who has been provisionally arrested, whether detained or released on judicial interim release, must be discharged

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

    (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,

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

      (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

    (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,

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

      (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.

Extension

(2) A judge may, on application of the Attorney General, extend a period referred to in subsection (1).

Release of person

(3) 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.