Bill C-40

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

PDF

	Authority to Proceed
Minister's power to issue	15. (1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.
Competing requests	(2) If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.
Contents of authority to proceed	(3) The authority to proceed must contain
	(a) the name or description of the person whose extradition is sought;
	(b) the name of the extradition partner; and
	(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respect of which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).
Copy of authority to proceed	(4) A copy of an authority to proceed produced by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Part.
	Arrest or Summons Following Authority to Proceed
Warrant of arrest or summons	16. (1) The Attorney General may, after the Minister issues an authority to proceed, apply ex parte to a judge in the province in which the Attorney General believes the person is or to which the person is on their way, or was last known to be, for the issuance of a summons to the person or a warrant for the arrest of the person.
When provisionally arrested	(2) If the person has been arrested pursuant to a provisional arrest warrant issued under section 13, the Attorney General need not apply for a summons or warrant under subsection (1).
Issuance of summons or warrant of arrest	(3) The judge to whom an application is made shall issue a summons to the person, or a warrant for the arrest of the person, in accordance with subsection 507(4) of the Criminal Code, with any modifications that the circumstances require.
Execution throughout Canada	(4) A warrant that is issued under this section may be executed, and a summons issued under this section may be served, anywhere in Canada without being endorsed.
Date of hearing - summons	(5) A summons that is issued under this section must
	(a) set a date for the appearance of the person before a judge that is not later than 15 days after its issuance; and
	(b) require the person to appear at a time and place stated in it for the purposes of the Identification of Criminals Act.
Effect of appearance	(6) A person appearing as required by subsection (5) is considered, for the purposes only of the Identification of Criminals Act, to be in lawful custody charged with an indictable offence.
	Appearance
Appearance	17. (1) A person who is arrested under section 13 or 16 is to be brought before a judge or a justice within twenty-four hours after the person is arrested, but if no judge or no justice is available during this time, the person shall be brought before a judge or a justice as soon as possible.
Appearance before justice	(2) The justice before whom a person is brought under subsection (1) shall order that the person be detained in custody and brought before a judge.
Judicial interim release	18. (1) The judge before whom a person is brought following arrest under section 13 or 16 shall order the release, with or without conditions, or detention in custody of the person.
Review by court of appeal	(2) A decision respecting judicial interim release may be reviewed by a judge of the court of appeal and that judge may
	(a) confirm the decision;
	(b) vary the decision; or
	(c) substitute any other decision that, in the judge's opinion, should have been made.
Criminal Code	19. Part XVI of the Criminal Code applies, with any modifications that the circumstances require, in respect of a person arrested under section 13 or 16 or to whom a summons has been issued under section 16.
Section 679 of the Criminal Code	20. Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to the judicial interim release of a person pending
	(a) a determination of an appeal from an order of committal made under section 29;
	(b) the Minister's decision under section 40 respecting the surrender of the person; or
	(c) a determination of a judicial review of the Minister's decision under section 40 to order the surrender of the person.
Date of hearing - provisional arrest	21. (1) If a person has been provisionally arrested, the judge before whom the person is brought shall
	(a) order the person to appear before the court from time to time during the period referred to in paragraph 14(1)(b) or (c); and
	(b) set a date for the extradition hearing if the Minister has issued an authority to proceed.
Date of hearing after authority to proceed issued	(2) If a person has been arrested or is a person to whom a summons has been issued under section 16, the judge before whom the person is brought shall set a date for the extradition hearing.
Hearing	(3) The judge shall set an early date for the extradition hearing, whether that date is in or out of the prescribed sessions of the court.
Application for transfer	22. (1) On application of the Attorney General or the person arrested or to whom a summons has been issued under section 16, the judge shall, if satisfied that the interests of justice so require, order that the proceedings be transferred to another place in Canada and that the person appear before a judge in that place, and
	(a) if the person is detained, that the person be conveyed by a peace officer to the place; and
	(b) if the person is not detained or has been released on judicial interim release, that the person be summoned to appear at the place.
Execution throughout Canada	(2) A summons issued under paragraph (1)(b) may be served anywhere in Canada without being endorsed.
Order respecting expenses	(3) If the order under subsection (1) was made on the application of the Attorney General, the judge may order that the Attorney General pay the person's reasonable travel expenses incurred further to the order.
	Substitution and Amendment of Authority to Proceed
Substitution of authority to proceed	23. (1) The Minister may substitute another authority to proceed at any time before the extradition hearing begins. All documents issued and orders made by the court apply in respect of the new authority to proceed, unless the court, on application of the person or the Attorney General, orders otherwise.
New date for hearing	(1.1) Where the Minister substitutes another authority to proceed under subsection (1) and the person applies for another date to be set for the beginning of the extradition hearing in order to give the person an opportunity to examine the new authority, the judge may set another date for the hearing.
Amendment of authority to proceed	(2) The judge may, on application of the Attorney General, amend the authority to proceed after the hearing has begun in accordance with the evidence that is produced during the hearing.
Withdrawal of the authority to proceed	(3) The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.
	Extradition Hearing
Extradition hearing	24. (1) The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.
Application of Part XVIII of the Criminal Code	(2) For the purposes of the hearing, the judge has, subject to this Act, the powers of a justice under Part XVIII of the Criminal Code, with any modifications that the circumstances require.
Competence	25. For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions that the judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge.
Order restricting publication of evidence	26. Before beginning a hearing in respect of a judicial interim release or an extradition hearing, a judge may, on application by the person or the Attorney General and on being satisfied that the publication or broadcasting of the evidence would constitute a risk to the holding of a fair trial by the extradition partner, make an order directing that the evidence taken not be published or broadcast before the time that the person is discharged or, if surrendered, the trial by the extradition partner has concluded.
Exclusion of person from hearing	27. The presiding judge may make an order excluding any person from the court for all or part of an extradition hearing or hearing in respect of a judicial interim release if the judge is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude the person.
Power to compel witnesses	28. A judge who presides over an extradition hearing or a hearing in respect of a judicial interim release may compel a witness to attend the hearing and sections 698 to 708 of the Criminal Code apply, with any modifications that the circumstances require.
Order of committal	29. (1) A judge shall order the committal of the person into custody to await surrender if
	(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner; and
	(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed and that the person is the person who was convicted.
Order of committal	(2) The order of committal must contain
	(a) the name of the person;
	(b) the offence set out in the authority to proceed for which the committal is ordered;
	(c) the place at which the person is to be held in custody; and
	(d) the name of the extradition partner.
Discharge of person	(3) A judge shall order the person discharged if the judge does not order their committal under subsection (1).
Relevant date	(4) The date of the authority to proceed is the relevant date for the purposes of subsection (1).
Extradition when person not present at conviction	(5) Subject to a relevant extradition agreement, if a person has been tried and convicted without the person being present, the judge shall apply paragraph (1)(a).
Authority to keep person in custody	30. (1) The order of committal constitutes the authority to keep the person in custody, subject to an order of judicial interim release.
Duration of order	(2) The order of committal remains in force until the person is surrendered or discharged or until a new hearing is ordered under paragraph 54(a).
	Rules of Evidence
Definition of ``docu- ment''	31. For the purposes of sections 32 to 38, ``document'' means data recorded in any form, and includes photographs and copies of documents.
Evidence	32. (1) Subject to subsection (2), evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at an extradition hearing. The following shall also be admitted as evidence, even if it would not otherwise be admissible under Canadian law:
	(a) the contents of the documents contained in the record of the case certified under subsection 33(3);
	(b) the contents of the documents that are submitted in conformity with the terms of an extradition agreement; and
	(c) evidence adduced by the person sought for extradition that is relevant to the tests set out in subsection 29(1) if the judge considers it reliable.
Exception - Canadian evidence	(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.
Record of the case	33. (1) The record of the case must include
	(a) in the case of a person sought for the purpose of prosecution, a document summarizing the evidence available to the extradition partner for use in the prosecution; and
	(b) in the case of a person sought for the imposition or enforcement of a sentence,
	(i) a copy of the document that records the conviction of the person, and
	(ii) a document describing the conduct for which the person was convicted.
Other documents - record of the case	(2) A record of the case may include other relevant documents, including documents respecting the identification of the person sought for extradition.
Certification of record of the case	(3) A record of the case may not be admitted unless
	(a) in the case of a person sought for the purpose of prosecution, a judicial or prosecuting authority of the extradition partner certifies that the evidence summarized or contained in the record of the case is available for trial and
	(i) is sufficient under the law of the extradition partner to justify prosecution, or
	(ii) was gathered according to the law of the extradition partner; or
	(b) in the case of a person sought for the imposition or enforcement of a sentence, a judicial, prosecuting or correctional authority of the extradition partner certifies that the documents in the record of the case are accurate.
Authenti- cation not required	(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.
Record of the case and supplements	(5) For the purposes of this section, a record of the case includes any supplement added to it.
Oath or solemn affirmation	34. A document is admissible whether or not it is solemnly affirmed or under oath.
No proof of signature	35. A document purporting to have been signed by a judicial, prosecuting or correctional authority, or a public officer, of the extradition partner shall be admitted without proof of the signature or official character of the person appearing to have signed it.
Translated documents	36. A translation of a document into one of Canada's official languages shall be admitted without any further formality.

Bill C-40

Authority to Proceed

Arrest or Summons Following Authority to Proceed

Appearance

Substitution and Amendment of Authority to Proceed

Extradition Hearing

Rules of Evidence