Bill C-40

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	SUMMARY
	This enactment creates a comprehensive scheme, consistent with modern legal principles and recent international developments, in the field of extradition.
	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.
	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.
	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.
	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.
	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.
	This enactment repeals the Extradition Act and the Fugitive Offenders Act and makes other related and consequential amendments.
	EXPLANATORY NOTES
	Corrections and Conditional Release Act
	Clause 86: The relevant portion of subsection 121(1) reads as follows:
	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
	. . .
	(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.
	Clause 87: Subsection 128(3) reads as follows:
	(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.
	Identification of Criminals Act
	Clause 88: The relevant portion of subsection 2(1) reads as follows:
	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:
	. . .
	(b) any person who has been apprehended under the Extradition Act or the Fugitive Offenders Act; or
	Canada Evidence Act
	Clause 89: Section 46 reads as follows:
	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.
	Clause 90: New.
	Clause 91: Subsection 51(2) reads as follows:
	(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.
	Criminal Code
	Clause 92: (1) New.
	(2) Subsection 131(3) reads as follows:
	(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.
	Clause 93: New.
	Clause 94: New.
	Clause 95: New.
	Immigration Act
	Clause 96: New.
	Mutual Legal Assistance in Criminal Matters Act
	Clause 97: (1) and (2) The definitions ``foreign state'', ``offence'', ``request'' and ``treaty'' read as follows:
	``foreign state'' means a state that is a party to a treaty;
	``offence'' means an offence within the meaning of the relevant treaty;
	``request'' means a request for assistance presented pursuant to a treaty;
	``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.
	(3) New.
	(4) Subsection 2(2) reads as follows:
	(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:
	(a) the right of Canada, for reasons of security, sovereignty or public interest, to refuse to give effect to a request;
	(b) the restriction of mutual legal assistance to acts that, if committed in Canada, would be indictable offences;
	(c) the confidentiality of information sent by Canada to a foreign state pursuant to a request for legal assistance;
	(d) the types of legal assistance available under Part I for giving effect to a request presented to Canada pursuant to the treaty; and
	(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.
	Clause 98: Subsection 3(2) reads as follows:
	(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.
	Clause 99: Sections 4 and 5 read as follows:
	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.
	(2) The Governor in Council shall, by order,
	(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;
	(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;
	(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
	(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.
	PUBLICATION OF TREATIES
	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.
	Clause 100: Subsections 6(1) to (3) read as follows:
	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.
	(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.
	(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.
	Clause 101: Sections 7 and 8 read as follows:
	7. (1) The Minister is responsible for the implementation of every treaty and the administration of this Act.
	(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.
	PART I
	FOREIGN INVESTIGATIONS OR OTHER PROCEEDINGS IN RESPECT OF OFFENCES
	Implementation
	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.
	Clause 102: (1) Subsection 9(1) reads as follows:
	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.
	(2) Subsection 9(3) reads as follows:
	(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.
	Clause 103: Subsection 11(1) reads as follows:
	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.
	Clause 104: (1) The relevant portion of subsection 12(1) reads as follows:
	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
	(a) an offence has been committed with respect to which the foreign state has jurisdiction;



	(2) The relevant portion of subsection 12(4) reads as follows:
	(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
	. . .
	(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
	Clause 105: The relevant portion of subsection 15(1) reads as follows:
	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
	. . .
	(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
	Clause 106: Section 16 reads as follows:
	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.
	Clause 107: Subsection 17(1) reads as follows:
	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.
	Clause 108: (1) The relevant portion of subsection 18(1) reads as follows:
	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
	(a) an offence has been committed with respect to which the foreign state has jurisdiction; and
	(2) The relevant portion of subsection 18(2) reads as follows:
	(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
	. . .
	(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
	(3) The relevant portion of subsection 18(7) reads as follows:
	(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
	. . .
	(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
	(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).
	Clause 109: Subsection 19(4) reads as follows:
	(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.
	Clause 110: (1) Subsection 20(1) reads as follows:
	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.
	(2) Subsection 20(3) reads as follows:
	(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.
	Clause 111: Section 21 reads as follows:
	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.
	Clause 112: The relevant portion of section 22 reads as follows:
	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)
	. . .
	(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
	. . .
	(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.
	Clause 113: New.
	Clause 114: (1) Subsection 23(1) reads as follows:
	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
	(a) the person did not attend or remain in attendance as required by the order or is about to abscond;
	(b) the order was personally served on the person; and
	(c) the person is likely to give material evidence.
	(2) Subsection 23(3) reads as follows:
	(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.
	Clause 115: Subsection 24(1) reads as follows:
	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.
	Clause 116: (1) Subsection 25(1) reads as follows:
	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.
	(2) The relevant portion of subsection 25(3) reads as follows:
	(3) A transfer order made under subsection (1) must
	. . .
	(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;
	Clause 117: (1) and (2) Subsections 30(1) and (2) read as follows:
	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.
	(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.
	Clause 118: Subsection 31(1) reads as follows:
	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.
	Clause 119: Section 34 reads as follows:
	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.
	Clause 120: The headings before section 36 and sections 36 and 37 read as follows:
	PART II
	ADMISSIBILITY IN CANADA OF EVIDENCE OBTAINED ABROAD PURSUANT TO A TREATY
	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.
	(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.
	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.
	Clause 121: Section 39 reads as follows:
	39. The service of a document in a foreign state may be proved by affidavit of the person who served it.
	Clause 122: The headings before section 40 read as follows:
	PART III
	IMPLEMENTATION OF TREATIES IN CANADA
	Special Authorization to Come Into Canada
	Clause 123: Subsection 40(1) reads as follows:
	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.
	Clause 124: The relevant portion of subsection 41(1) reads as follows:
	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
	(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;
	(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
	Clause 125: Subsection 42(1) reads as follows:
	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.
	Clause 126: Section 43 reads as follows:
	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.
	Clause 127: Subsection 44(1) reads as follows:
	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.