The Extradition Series – Part 2: The Canadian Extradition Process In A Nutshell

The US official extradition request is due 60 days after the Dec 1 arrest—before Jan 30. Approving the request and holding a court hearing is at “sole discretion” of Minister of Justice, points our extradition lawyer Gary Botting. https://t.co/38q0MfnnYl

— Tom Parkin (@TomPark1n) January 27, 2019

This is the second of in my series of posts exploring extradition. The first post described the increasing importance of extradition in an increasingly unpredictable world. Individuals are clearly becoming more and more aware of the risks of being forcibly transplanted to face criminal proceedings in another country. The examples discussed demonstrate the risk of extradition to face the justice system in a country where no crime was actually committed. The United States appears to be aggressively interpreting its laws to apply in an extraterritorial manner and is willing to aggressively apply those laws to people who have no presence in the United States. What is most frightening is that extradition treaties allow the United States to get other countries to retrieve those accused and arrange for their transportation to the United States.

Extradition from Canada – An Explanation of the process https://t.co/Fgfdfb84W2

— U.S. Citizen Abroad (@USCitizenAbroad) March 27, 2020

The purpose of this post is to identify and briefly describe the role of the various laws and practices which are engaged in a request for extradition. I will use Canada as the model. Note that Canada allows for extradition to and from a large number of countries. Therefore, let’s begin our analysis with a “Canada Centric” view of extradition.

Treaties and statutes are written in technical language. They take time to understand. Therefore, let’s begin with a simple overview of Canada’s extradition process, which is found Canada’s Department of Justice website.

extradition_eng

The description of extradition from Canada’s Department of Justice can be summarized as two categories of information.

Category 1 – What are the legal tools governing extradition?

“Extradition in Canada is conducted in conformity with the Extradition Act (Canada’s general law applying to extradition with all countries), international treaties (Country specific agreements) and the Charter of Rights and Freedoms (applicable to all individuals subjected to the Extradition process). All individuals are afforded fair treatment and due process (this is clearly aspirational).”

E-23.01

Conclusion: The law of extradition is an amalgamation of domestic law, constitutional law and treaties. Interestingly this is analogous to the law of FATCA, which is also a amalgamation of treaties/international agreements and domestic law (The FATCA IGAs were enacted into the Income Tax Act as Canadian domestic law. The purpose of the Alliance For The Defence Of Canadian Sovereignty lawsuit is to seek a ruling that Canada’s Charter of Rights also applies to the FATCA issue.)

Category 2 – How does the extradition process (from beginning to end) unfold in the context of those legal rules?

There are three phases to the extradition process:

1. Authority to Proceed: the decision to commence the proceedings by issuing an Authority to Proceed; this decision is made by Department of Justice officials.

2. Judicial Phase: the extradition hearing, which takes place before a judge of the superior court. Note that the extradition hearing is NOT a hearing on the merits of the case. The extradition hearing is a hearing on whether the requirements of the Extradition Act and the Tax Treaty have been met. More on the requirements to extradite later. The result of the “Judicial Phase” will be a decision on whether the requirements to extradite have or have not been met. If the answer is “no”, then (subject to an appeal) the case would end. If the answer is “yes”, then the decision to extradite will be in the hands of Canada’s Minister Of Justice.

3. Ministerial Phase: the decision on surrender, which under the Extradition Act must be made by the Minister of Justice. This decision cannot be delegated to officials. At the end of the day, the Justice Minister makes the decision. It is entirely possible for the Justice Minister to decline to extradite even if the result of the “Judicial Phase” is the conditions to extradite have been met.

About the possibility of appeal

The individual sought may appeal the decision of the extradition judge and/or apply for judicial review of the Minister’s decision to the Court of Appeal in the province where the extradition hearing took place.
If the Court of Appeal upholds the decisions of the extradition judge and the Minister, the individual may seek leave to appeal either or both decisions to the Supreme Court of Canada. The Supreme Court will only hear appeals that raise issues of public importance.

The third post will discuss the legal prerequisites that are necessary to support an extradition order.

The text of both Canada’s Extradition Act (Appendix A) and the Canada US Extradition treaty (Appendix B) are included below.

Appendix A – Canada’s Extradition Act

https://laws-lois.justice.gc.ca/eng/acts/E-23.01/FullText.html

Extradition Act
S.C. 1999, c. 18

Assented to 1999-06-17

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
Marginal note:Short title

1 This Act may be cited as the Extradition Act.

PART 1
Interpretation
Marginal note:Definitions

2 The definitions in this section apply in this Act.

Attorney General means the Attorney General of Canada. (procureur général)

court means

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

(b) in Quebec, the Superior Court;

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

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

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. (cour d’appel)

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. (accord)

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. (partenaire)

International Criminal Court means the International Criminal Court as defined in subsection 2(1) of the Crimes Against Humanity and War Crimes Act. (Cour pénale internationale)

judge means a judge of the court. (juge)

justice has the same meaning as in section 2 of the Criminal Code. (juge de paix)

Minister means the Minister of Justice. (ministre)

specific agreement means an agreement referred to in section 10 that is in force. (accord spécifique)

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. (État ou entité)

1999, c. 18, s. 22000, c. 24, s. 472002, c. 7, s. 169
Previous Version
PART 2
Extradition from Canada
Extraditable Conduct
Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Retrospectivity

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.

Marginal note:No immunity

6.1 Despite any other Act or law, no person who is the subject of a request for surrender by the International Criminal Court or by any international criminal tribunal that is established by resolution of the Security Council of the United Nations and whose name appears in the schedule, may claim immunity under common law or by statute from arrest or extradition under this Act.

2000, c. 24, s. 48
Functions of the Minister
Marginal note: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
Marginal note: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.

Marginal note: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.

Marginal note: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
Marginal note: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.

Marginal note: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
Marginal note: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.

Marginal note: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.

Marginal note: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
Marginal note: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.

Marginal note: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
Marginal note: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.

Marginal note: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

Marginal note: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.

Marginal note:Execution throughout Canada

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

Marginal note: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.

Marginal note:Extension

(2) On application of the Attorney General, a judge

(a) may extend a period referred to in subsection (1); or

(b) shall, in the case of a person arrested on the request of the International Criminal Court, extend a period referred to in subsection (1) for the period specified by the Attorney General, not to exceed 30 days.

Marginal note: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.

1999, c. 18, s. 142000, c. 24, s. 49
Authority to Proceed
Marginal note: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.

Marginal note: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.

Marginal note: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).

Marginal note: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
Marginal note: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.

Marginal note: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).

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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
Marginal note: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.

Marginal note: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.

Marginal note:Decision of judge

18 (1) The judge before whom a person is brought following arrest under section 13 or 16 shall

(a) if the person has been arrested on the request of the International Criminal Court, order the detention in custody of the person unless

(i) the person shows cause, in accordance with subsection 522(2) of the Criminal Code, that their detention in custody is not justified, and

(ii) the judge is satisfied that, given the gravity of the alleged offence, there are urgent and exceptional circumstances that justify release — with or without conditions — and that the person will appear as required; or

(b) in any other case, order the release, with or without conditions, or detention in custody of the person.

Marginal note:Mandatory adjournment

(1.1) An application for judicial interim release in respect of a person referred to in paragraph (1)(a) shall, at the request of the Attorney General, be adjourned to await receipt of the recommendations of the Pre-Trial Chamber of the International Criminal Court. If the recommendations are not received within six days, the judge may proceed to hear the application.

Marginal note:Recommendations of Pre-Trial Chamber

(1.2) If the Pre-Trial Chamber of the International Criminal Court submits recommendations, the judge shall consider them before rendering a decision.

Marginal note: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

1999, c. 18, s. 182000, c. 24, s. 50
Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Execution throughout Canada

(2) A summons issued under paragraph (1)(b) may be served anywhere in Canada without being endorsed.

Marginal note: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
Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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
Marginal note:Extradition hearing

24 (1) The judge shall, on receipt of an authority to proceed from the Attorney General, hold an extradition hearing.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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;

(d) the name of the extradition partner.

Marginal note:Discharge of person

(3) A judge shall order the person discharged if the judge does not order their committal under subsection (1).

Marginal note:Relevant date

(4) The date of the authority to proceed is the relevant date for the purposes of subsection (1).

Marginal note: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).

Marginal note: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.

Marginal note: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
Marginal note:Definition of document

31 For the purposes of sections 32 to 38, document means data recorded in any form, and includes photographs and copies of documents.

Marginal note: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.

Marginal note:Exception — Canadian evidence

(2) Evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Authentication not required

(4) No authentication of documents is required unless a relevant extradition agreement provides otherwise.

Marginal note:Record of the case and supplements

(5) For the purposes of this section, a record of the case includes any supplement added to it.

Marginal note:Oath or solemn affirmation

34 A document is admissible whether or not it is solemnly affirmed or under oath.

Marginal note: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.

Marginal note:Translated documents

36 A translation of a document into one of Canada’s official languages shall be admitted without any further formality.

Marginal note:Evidence of identity

37 The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented to support the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and

(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of the person.

Judge’s Report
Marginal note:Report of the judge

38 (1) A judge who issues an order of committal of a person to await surrender shall transmit to the Minister the following documents:

(a) a copy of the order;

(b) a copy of the evidence adduced at the hearing that has not already been transmitted to the Minister; and

Marginal note:Right to appeal

(2) When the judge orders the committal of a person, the judge shall inform the person that they will not be surrendered until after the expiry of 30 days and that the person has a right to appeal the order and to apply for judicial interim release.

Property
Marginal note:Property seized

39 (1) Subject to a relevant extradition agreement, a judge who makes an order of committal may order that any thing that was seized when the person was arrested and that may be used in the prosecution of the person for the offence for which the extradition was requested be transferred to the extradition partner at the time the person is surrendered.

Marginal note:Conditions of order

(2) The judge may include in the order any conditions that the judge considers desirable, including conditions

(a) respecting the preservation and return to Canada of a thing; and

(b) respecting the protection of the interests of third parties.

Powers of Minister
Marginal note:Surrender

40 (1) The Minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner.

Marginal note:When refugee claim

(2) Before making an order under subsection (1) with respect to a person who has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall consult with the minister responsible for that Act.

Marginal note:Powers of the Minister

(3) The Minister may seek any assurances that the Minister considers appropriate from the extradition partner, or may subject the surrender to any conditions that the Minister considers appropriate, including a condition that the person not be prosecuted, nor that a sentence be imposed on or enforced against the person, in respect of any offence or conduct other than that referred to in the order of surrender.

Marginal note:No surrender

(4) If the Minister subjects surrender of a person to assurances or conditions, the order of surrender shall not be executed until the Minister is satisfied that the assurances are given or the conditions agreed to by the extradition partner.

Marginal note:Extension of time

(5) If the person has made submissions to the Minister under section 43 and the Minister is of the opinion that further time is needed to act on those submissions, the Minister may extend the period referred to in subsection (1) as follows:

(a) if the person is the subject of a request for surrender by the International Criminal Court, and an issue has been raised as to the admissibility of the case or the jurisdiction of that Court, for a period ending not more than 45 days after the Court’s ruling on the issue; or

(b) in any other case, for one additional period that does not exceed 60 days.

Marginal note:Notice of extension of time

(6) If an appeal has been filed under section 50 and the Minister has extended the period referred to in subsection (1), the Minister shall file with the court of appeal a notice of extension of time before the expiry of that period.

1999, c. 18, s. 402000, c. 24, s. 512001, c. 27, s. 250
Marginal note:When appeal pending

41 (1) The Minister may postpone the making of the order of surrender if

(a) an appeal has been filed under section 50;

(b) the Minister files a notice of postponement with the court of appeal before the expiry of the period referred to in subsection 40(1); and

Marginal note:No further deferral of appeal

(2) When the Minister has filed a notice of postponement with the court of appeal under paragraph (1)(b), that court may not defer the hearing of the appeal under subsection 51(2).

Marginal note:Amendments

42 The Minister may amend a surrender order at any time before its execution.

Submissions
Marginal note:Submissions

43 (1) The person may, at any time before the expiry of 30 days after the date of the committal, make submissions to the Minister in respect of any ground that would be relevant to the Minister in making a decision in respect of the surrender of the person.

Marginal note:Late acceptance of submissions

(2) The Minister may accept submissions even after the expiry of those 30 days in circumstances that the Minister considers appropriate.

Reasons for Refusal
Marginal note:When order not to be made

44 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or

(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

Marginal note:When Minister may refuse to make order

(2) The Minister may refuse to make a surrender order if the Minister is satisfied that the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner.

Marginal note:Refusal in extradition agreement

45 (1) The reasons for the refusal of surrender contained in a relevant extradition agreement, other than a multilateral extradition agreement, or the absence of reasons for refusal in such an agreement, prevail over sections 46 and 47.

Marginal note:Exception — multilateral extradition agreement

(2) The reasons for the refusal of surrender contained in a relevant multilateral extradition agreement prevail over sections 46 and 47 only to the extent of any inconsistency between either of those sections and those provisions.

Marginal note:When order not to be made

46 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the prosecution of a person is barred by prescription or limitation under the law that applies to the extradition partner;

(b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; or

Marginal note:Restriction

(2) For the purpose of subparagraph (1)(c), conduct that constitutes an offence mentioned in a multilateral extradition agreement for which Canada, as a party, is obliged to extradite the person or submit the matter to its appropriate authority for prosecution does not constitute a political offence or an offence of a political character. The following conduct also does not constitute a political offence or an offence of a political character:

(a) murder or manslaughter;

(b) inflicting serious bodily harm;

(d) kidnapping, abduction, hostage-taking or extortion;

(e) using explosives, incendiaries, devices or substances in circumstances in which human life is likely to be endangered or serious bodily harm or substantial property damage is likely to be caused; and

(f) an attempt or conspiracy to engage in, counselling, aiding or abetting another person to engage in, or being an accessory after the fact in relation to, the conduct referred to in any of paragraphs (a) to (e).

Marginal note:When Minister may refuse to make order

47 The Minister may refuse to make a surrender order if the Minister is satisfied that

(a) the person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction;

(b) the person was convicted in their absence and could not, on surrender, have the case reviewed;

(c) the person was less than eighteen years old at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act;

(d) the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or

(e) none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.

1999, c. 18, s. 472002, c. 1, s. 190
Previous Version
Marginal note:When grounds for refusal do not apply

47.1 The grounds for refusal set out in sections 44, 46 and 47 do not apply in the case of a person who is the subject of a request for surrender by the International Criminal Court.

2000, c. 24, s. 52
Marginal note:Discharge

48 (1) If the Minister decides not to make a surrender order, the Minister shall order the discharge of the person.

Marginal note:When refugee claim

(2) When the Minister orders the discharge of a person and the person has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall send copies of all relevant documents to the minister responsible for that Act.

1999, c. 18, s. 482001, c. 27, s. 251
Appeal
Marginal note:Appeal

49 A person may appeal against an order of committal — or the Attorney General, on behalf of the extradition partner, may appeal the discharge of the person or a stay of proceedings — to the court of appeal of the province in which the order of committal, the order discharging the person or the order staying the proceedings was made,

(a) on a ground of appeal that involves a question of law alone;

(b) on a ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge of the court of appeal; or

(c) on a ground of appeal not set out in paragraph (a) or (b) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal.

Marginal note:Notice of appeal

50 (1) An appellant who proposes to appeal to a court of appeal or to obtain the leave of that court to appeal must give notice of appeal or notice of the application for leave to appeal not later than 30 days after the decision of the judge with respect to the committal or discharge of the person, or the stay of proceedings, as the case may be, in any manner that may be directed by the rules of court.

Marginal note:Extension of time

(2) The court of appeal or a judge of the court of appeal may, either before or after the expiry of the 30 days referred to in subsection (1), extend the time within which notice of appeal or notice of an application for leave to appeal may be given.

Marginal note:Hearing of appeal

51 (1) An appeal under this Act shall be scheduled for hearing by the court of appeal at an early date whether that date is in or out of the prescribed sessions of that court.

Marginal note:Deferral of appeal

(2) The hearing of an appeal against an order of committal may be deferred by the court of appeal until the Minister makes a decision in respect of the surrender of the person under section 40.

Marginal note:Provisions of the Criminal Code to apply

52 (1) Sections 677, 678.1, 682 to 685 and 688 of the Criminal Code apply, with any modifications that the circumstances require, to appeals under this Act.

Marginal note:Rules

(2) Unless inconsistent with the provisions of this Act, rules made by the court of appeal under section 482 of the Criminal Code in relation to appeals to that court under that Act apply, with any modifications that the circumstances require, to appeals under this Act.

Marginal note:Powers of the court of appeal

53 On the hearing of an appeal against an order of committal of a person, the court of appeal may

(a) allow the appeal, in respect of any offence in respect of which the person has been committed, if it is of the opinion

(i) that the order of committal should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) that the order of committal should be set aside on the ground of a wrong decision on a question of law, or

(iii) that, on any ground, there was a miscarriage of justice; or

(b) dismiss the appeal

(i) if it does not allow the appeal on any ground referred to in paragraph (a), or

(ii) even though the court of appeal is of the opinion that on the ground referred to in subparagraph (a)(ii) the appeal may be decided in favour of the appellant, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred and the order of committal should be upheld.

Marginal note:Effect of allowing appeal

54 If the court of appeal allows an appeal under paragraph 53(a), it shall

(a) set aside the order of committal and

(i) discharge the person, or

(ii) order a new extradition hearing; or

(b) amend the order of committal to exclude an offence in respect of which the court is of the opinion that the person has not been properly committed on a ground referred to in subparagraph 53(a)(i), (ii) or (iii).

Marginal note:Powers

55 (1) On the hearing of an appeal against the discharge of a person or against a stay of proceedings, the court of appeal may

(a) allow the appeal and set aside the order of discharge or stay, if it is of the opinion

(i) that the order of discharge should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) that the order of discharge or the stay of proceedings should be set aside on the ground of a wrong decision on a question of law, or

(iii) that, on any ground, there was a miscarriage of justice; or

(b) dismiss the appeal.

Marginal note:Order for new extradition hearing or committal

(2) The court of appeal may, if it sets aside a stay of proceedings, order a new extradition hearing. The court of appeal may, if it sets aside an order of discharge, order a new extradition hearing or order the committal of the person.

Marginal note:Deferral of Supreme Court appeal

56 (1) The Supreme Court may defer, until the Minister makes a decision with respect to the surrender of the person under section 40, the hearing of an application for leave to appeal, or the hearing of an appeal, from a decision of the court of appeal on an appeal taken under section 49, or on any other appeal in respect of a matter arising under this Act.

Marginal note:Deferral of Supreme Court appeal

(2) The Supreme Court may also, if an application for judicial review is made under section 57 or otherwise, defer the hearing until the court of appeal makes its determination on the application.

Judicial Review of Minister’s Order
Marginal note:Review of order

57 (1) Despite the Federal Courts Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.

Marginal note:Application

(2) An application for judicial review may be made by the person.

Marginal note:Time limitation

(3) An application for judicial review shall be made, in accordance with the rules of court of the court of appeal, within 30 days after the time the decision referred to in subsection (1) was first communicated by the Minister to the person, or within any further time that the court of appeal, either before or after the expiry of those 30 days, may fix or allow.

Marginal note:Section 679 of the Criminal Code

(4) Section 679 of the Criminal Code applies, with any modifications that the circumstances require, to an application for judicial review.

Marginal note:Hearing of application

(5) An application for judicial review shall be scheduled for hearing by the court of appeal at an early date whether that date is in or out of the prescribed sessions of that court.

Marginal note:Powers of court of appeal

(6) On an application for judicial review, the court of appeal may

(a) order the Minister to do any act or thing that the Minister has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, quash, set aside, set aside and refer back for determination in accordance with any directions that it considers appropriate, prohibit or restrain the decision of the Minister referred to in subsection (1).

Marginal note:Grounds of review

(7) The court of appeal may grant relief under this section on any of the grounds on which the Federal Court may grant relief under subsection 18.1(4) of the Federal Courts Act.

Marginal note:Defect in form or technical irregularity

(8) If the sole ground for relief established in an application for judicial review is a defect in form or a technical irregularity, the court of appeal may

(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; or

(b) in the case of a defect in form or a technical irregularity in the decision, make an order validating the order, to have effect from the time and on the terms that it considers appropriate.

Marginal note:One hearing by court of appeal

(9) If an appeal under section 49 or any other appeal in respect of a matter arising under this Act is pending, the court of appeal may join the hearing of that appeal with the hearing of an application for judicial review.

Marginal note:Provincial rules of judicial review apply

(10) Unless inconsistent with the provisions of this Act, all laws, including rules, respecting judicial review in force in the province of the court of appeal apply, with any modifications that the circumstances require, to applications under this section.

1999, c. 18, s. 572002, c. 8, s. 141
Previous Version
Order of Surrender
Marginal note:Contents of the surrender order

58 An order of surrender must

(a) contain the name of the person who is to be surrendered;

(b) describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered;

(d) direct the person who has custody of the person to be surrendered to deliver them into the custody of the person or a member of the class of persons referred to in paragraph (e);

(e) designate the person or class of persons authorized for the purposes of section 60;

(f) set out any assurances or conditions to which the surrender is subject;

(g) fix, in the case of postponement of surrender under section 64, the period of time at or before the expiry of which the person is to be surrendered; and

(h) fix, in the case of a temporary surrender under section 66,

(i) the period of time at or before the expiry of which the person to be surrendered must be returned to Canada, and

(ii) the period of time at or before the expiry of which final surrender shall take place.

Marginal note:Surrender for other offences

59 Subject to a relevant extradition agreement, the Minister may, if the request for extradition is based on more than one offence, order the surrender of a person for all the offences even if not all of them fulfil the requirements set out in section 3, if

(a) the person is being surrendered for at least one offence that fulfils the requirements set out in section 3; and

(b) all the offences relate to conduct that, had it occurred in Canada, would have constituted offences that are punishable under the laws of Canada.

Marginal note:Power to convey

60 On the execution of a surrender order, the person or persons designated under paragraph 58(e) shall have the authority to receive, hold in custody and convey the person into the territory over which the extradition partner has jurisdiction.

Marginal note:Escape

61 (1) If the person escapes while in custody, the law that applies with respect to a person who is accused or convicted of a crime against the laws of Canada and who escapes applies with respect to the person.

Marginal note:Arrest

(2) If the person escapes while in custody, the person or member of the class of persons having custody of the person has the power to arrest them in fresh pursuit.

Marginal note:Delay before surrender

62 (1) No person may be surrendered

(a) until a period of 30 days has expired after the date of the committal for surrender; or

(b) if an appeal or a judicial review in respect of a matter arising under this Act, or any appeal from an appeal or judicial review, is pending, until after the date of the final decision of the court on the appeal or judicial review.

Marginal note:Waiver of period of time

(2) The person may waive the period referred to in paragraph (1)(a) if they do so in writing.

Marginal note:Place of surrender

63 A surrender may take place at any place within or outside Canada that is agreed to by Canada and the extradition partner.

Marginal note:Postponement of surrender

64 (1) Unless the Minister orders otherwise, a surrender order made in respect of a person accused of an offence within Canadian jurisdiction or who is serving a sentence in Canada after a conviction for an offence, other than an offence with respect to the conduct to which the order relates does not take effect until the person has been discharged, whether by acquittal, by expiry of the sentence or otherwise.

Marginal note:Offence before or after surrender

(2) For greater certainty, the person need not have been accused of the offence within Canadian jurisdiction before the surrender order was made.

Marginal note:Return to Canada

65 If a person returns to Canada after surrender before the expiry of a sentence that they were serving in Canada at the time of surrender, the remaining part of the sentence must be served.

Temporary Surrender
Marginal note:Temporary surrender

66 (1) The Minister may order the temporary surrender to an extradition partner of a person who is ordered committed under section 29 while serving a term of imprisonment in Canada so that the extradition partner may prosecute the person or to ensure the person’s presence in respect of appeal proceedings that affect the person, on condition that the extradition partner give the assurances referred to in subsections (3) and (4).

Marginal note:Time limits

(2) An order of temporary surrender is subject to the time limits set out in subsections 40(1) and (5) and paragraph 41(1)(c).

Marginal note:Assurances

(3) The Minister may not order temporary surrender under subsection (1) unless the extradition partner gives an assurance that the person will remain in custody while temporarily surrendered to the extradition partner and

(a) in the case of temporary surrender for a trial, that the person will be returned within 30 days after the completion of the trial, unless a relevant extradition agreement provides for another time limit; and

(b) in the case of temporary surrender for an appeal, that the person will be returned within 30 days after the completion of the proceedings for which the presence of the person was required, unless a relevant extradition agreement provides for another time limit.

Marginal note:Time limit

(4) The Minister may require the extradition partner to give an assurance that the person will be returned no later than a specified date or that the person will be returned on request of the Minister.

Marginal note:Assurances in extradition agreements

(5) Any assurance referred to in subsections (3) and (4) that is included in a relevant extradition agreement need not be repeated as a specific assurance.

Marginal note:Final surrender after temporary surrender

(6) A person shall, subject to subsection (7), be surrendered to the extradition partner without a further request for extradition after the person

(a) has been temporarily surrendered;

(b) has been convicted by the extradition partner and had a term of imprisonment imposed on them;

(d) has finished serving the portion of the sentence that they were serving in custody in Canada at the time of the temporary surrender, unless the Minister orders that they be surrendered earlier.

Marginal note:No final surrender if circumstances warrant

(7) The Minister may, in circumstances that the Minister considers appropriate, revoke the surrender order and order the discharge of the person.

Marginal note:Notice

(8) The authority who has custody of the person to be surrendered under subsection (6) shall give the Minister reasonable notice of the time when the portion of the person’s sentence to be served in custody is to expire.

Marginal note:Final surrender when Canadian sentence expires

(9) When the sentence that the person is serving in Canada expires during the period during which the person is temporarily surrendered to an extradition partner, the surrender is considered to be a final surrender.

Marginal note:Waiver of return

(10) The Minister may, after consultation with the Minister of Public Safety and Emergency Preparedness or the appropriate provincial minister responsible for corrections, waive the return of the person by the extradition partner.

Marginal note:Final surrender despite subsection 3(3)

(11) A person may be surrendered under subsection (6) even if the term of imprisonment imposed by the extradition partner, or the portion of the term remaining to be served, is less than that required by subsection 3(3).

1999, c. 18, s. 662005, c. 10, s. 34
Previous Version
Marginal note:Order for surrender

67 An order of surrender prevails over a prior warrant or other order under which the person to whom it applies is otherwise detained in Canada or at liberty under terms and conditions.

Marginal note:Calculation of sentence

68 For the purposes of calculating a sentence that a person to whom an order of temporary surrender applies is serving in Canada at the time of the temporary surrender, the person

(a) is credited with any time that is served in custody outside Canada under a temporary surrender order; and

(b) remains eligible for remission in accordance with the laws of the correctional system under which the person was serving the sentence in Canada.

Remedy
Marginal note:Remedy in case of delay

69 A judge of the superior court of the province in which the person is detained who has the power to grant a writ of habeas corpus, may, on application made by or on behalf of the person, and on proof that reasonable notice of the intention to make the application has been given to the Minister, order the person to be discharged out of custody unless sufficient cause is shown against the discharge if

(a) the Minister has not made an order of surrender under section 40

(i) before the expiry of the period referred to in subsection 40(1) and any additional period referred to in subsection 40(5), or

(ii) if a notice of postponement has been filed under paragraph 41(1)(b), before the expiry of 45 days after the date of the decision of the court of appeal referred to in paragraph 41(1)(c); or

(b) the person is not surrendered and conveyed to the extradition partner

(i) within 45 days after the order of surrender is made by the Minister under section 40, or

(ii) if an appeal or judicial review in respect of any matter arising under this Act, or an appeal from such an appeal or judicial review, is pending, within 45 days after the final decision of the court is made,

over and above, in any case referred to in subparagraph (i) or (ii), the time required to convey the person to the extradition partner.

Consent
Marginal note:Consent to committal

70 (1) A person may, at any time after the issuance of an authority to proceed, consent, in writing and before a judge, to committal.

Marginal note:Judge to order committal

(2) A judge before whom a person consents under subsection (1) shall

(a) order the committal of the person into custody to await surrender to the extradition partner; and

(b) transmit a copy of the consent to the Minister.

Marginal note:Consent to surrender

71 (1) A person may, at any time after arrest or appearance, consent, in writing and before a judge, to being surrendered.

Marginal note:Judge to order surrender

(2) A judge before whom a person consents to being surrendered shall

(a) order the committal of the person into custody to await surrender to the extradition partner; and

(b) transmit a copy of the consent to the Minister.

Marginal note:When Minister receives consent

(3) The Minister may, as soon as is feasible after receiving a consent to surrender, personally order that the person be surrendered to the extradition partner.

Marginal note:Sections not applicable

(4) When a person consents to being surrendered to the extradition partner, the following sections do not apply:

(a) section 43 (submissions to the Minister);

(b) section 44 (reasons for refusal);

(d) section 57 (judicial review of Minister’s decision); and

(e) paragraph 62(1)(a) (delay before surrender).

Waiver of Extradition
Marginal note:Waiving extradition

72 (1) A person may, at any time after arrest or appearance, waive extradition in writing and before a judge.

Marginal note:Judge to inform person

(2) A judge before whom a person gives a waiver under subsection (1) must inform the person

(a) of the consequences of the waiver including the consequences of waiving the protection of specialty; and

(b) that they will be conveyed without delay to the extradition partner.

Marginal note:Judge to order conveyance

(3) The judge shall

(a) order the conveyance in custody of the person to the extradition partner; and

(b) transmit a copy of the waiver and the order to the Minister.

Marginal note:Conveyance order

(4) The conveyance order must

(a) contain the name of the person who is to be conveyed; and

(b) state the extradition partner to which the person is to be conveyed.

Marginal note:Escape

73 (1) If the person escapes while in custody for conveyance, the law that applies with respect to a person who is accused or convicted of a crime against the laws of Canada and who escapes applies with respect to the person.

Marginal note:Arrest

(2) If the person escapes while in custody for conveyance, the person in whose custody the person is has the power to arrest them in fresh pursuit.

Transit
Marginal note:Transit

74 (1) The Minister may consent to the transit in Canada of a person surrendered by one State or entity to another, subject to any terms and conditions that the Minister considers appropriate.

Marginal note:Consent to transit

(2) A consent to transit constitutes authority to the officer of the surrendering State or entity or the receiving State or entity to keep the person in custody while in Canada.

Marginal note:Sections to apply

(3) Sections 58 (contents of surrender order), 60 (power to convey), 61 (escape) and 69 (remedy in case of delay) apply, with any modifications that the circumstances require, in respect of the consent to transit.

Marginal note:Special authorization

75 (1) The Minister may, in order to give effect to a request for consent to transit, authorize a person in a State or entity who is inadmissible under the Immigration and Refugee Protection 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 specified by the Minister. The Minister may make the authorization subject to any conditions that the Minister considers desirable.

Marginal note:Variation of authorization

(2) The Minister may vary the terms of an authorization granted under subsection (1) and, in particular, may extend the period of time during which the person is authorized to remain in a place in Canada.

Marginal note:Non-compliance with conditions of authorization

(3) A person in respect of whom an authorization is granted under subsection (1) and who is found in a place in Canada other than the place designated in the authorization or in any place in Canada after the expiry of the period of time specified in the authorization or who fails to comply with some other condition of the authorization is, for the purposes of the Immigration and Refugee Protection Act, deemed to be a person who entered Canada as a temporary resident and remains in Canada after the period authorized for their stay.

1999, c. 18, s. 752001, c. 27, s. 252
Marginal note:Unscheduled landing

76 If a person being extradited or surrendered from one State or entity to another arrives in Canada without prior consent to transit, a peace officer may, at the request of a public officer who has custody of the person while the person is being conveyed,

(a) if the person is being surrendered to the International Criminal Court, hold the person in custody for a maximum period of 96 hours pending receipt by the Minister of a request for a consent to transit from that Court; or

(b) in any other case, hold the person in custody for a maximum period of 24 hours pending receipt by the Minister of a request for a consent to transit from the requesting State or entity.

1999, c. 18, s. 762000, c. 24, s. 53
PART 3
Extradition to Canada
Marginal note:Definition of competent authority

77 In this Part, competent authority means

(a) in respect of a prosecution or imposition of a sentence — or of a disposition under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 — the Attorney General, or the Attorney General of a province who is responsible for the prosecution of the case; and

(b) in respect of the enforcement of a sentence or a disposition under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(i) the Minister of Public Safety and Emergency Preparedness, if the person would serve the sentence in a penitentiary, or

(ii) the appropriate provincial minister responsible for corrections, in any other case.

1999, c. 18, s. 772002, c. 1, s. 1912005, c. 10, s. 34
Previous Version
Marginal note:Request by Canada for extradition

78 (1) The Minister, at the request of a competent authority, may make a request to a State or entity for the extradition of a person for the purpose of prosecuting the person for — or imposing or enforcing a sentence, or making or enforcing a disposition under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, in respect of — an offence over which Canada has jurisdiction.

Marginal note:Request for provisional arrest

(2) The Minister, at the request of a competent authority, may make a request to a State or entity for the provisional arrest of the person.

1999, c. 18, s. 782002, c. 1, s. 192
Previous Version
Marginal note:Order in respect of evidence

79 (1) A judge may, for the purposes of acquiring evidence for a request for extradition, on the ex parte application of a competent authority, make any order that is necessary to

(a) secure the attendance of a witness at any place designated by the judge;

(b) secure the production as evidence of data that is recorded in any form;

(d) certify or authenticate the evidence in a manner and form that is required by the requested State or entity.

Marginal note:Part XXII of the Criminal Code to apply

(2) Part XXII of the Criminal Code applies, with any modifications that the circumstances require, to orders under subsection (1).

Marginal note:Specialty if person is in Canada

80 Subject to a relevant extradition agreement, a person who has been extradited to Canada by a requested State or entity shall not, unless the person has voluntarily left Canada after surrender or has had a reasonable opportunity of leaving Canada,

(a) be detained or prosecuted, or have a sentence imposed or executed, or a disposition made or executed under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, in Canada in respect of an offence that is alleged to have been committed, or was committed, before surrender other than

(i) the offence in respect of which the person was surrendered or an included offence,

(ii) another offence in respect of which the requested State or entity consents to the person being detained or prosecuted, or

(iii) another offence in respect of which the person consents to being detained or prosecuted; or

(b) be detained in Canada for the purpose of being surrendered to another State or entity for prosecution or for imposition or execution of a sentence in respect of an offence that is alleged to have been committed, or was committed, before surrender to Canada, unless the requested State or entity consents.

1999, c. 18, s. 802002, c. 1, s. 193
Previous Version
Marginal note:Conveyance of surrendered person

81 (1) A person who is surrendered to Canada by a requested State or entity may be brought into Canada by an agent of the requested State or entity if the Minister so authorizes and be delivered to an appropriate authority to be dealt with according to law.

Marginal note:Power to convey

(2) On the execution of a surrender order, the authorized agent of the requested State or entity shall have the authority to hold the person in custody in Canada until delivery under subsection (1).

Marginal note:Escape

(3) If the person escapes while in custody, the law that applies with respect to a person who is accused or convicted of a crime against the laws of Canada and who escapes applies with respect to the person.

Marginal note:Arrest

(4) If the person escapes, the authorized agent of the requested State or entity has the power to arrest them in fresh pursuit.

Marginal note:Order of detention for temporary surrender

82 (1) Subject to subsection (2), a judge shall, on application of the competent authority made at any time before the temporary surrender, order the detention in custody of a person who is serving a term of imprisonment or has otherwise lawfully been deprived of their liberty in a requested State or entity and whose temporary surrender Canada has requested for the purpose of prosecution or appeal.

Marginal note:Time limit

(2) The order must contain a provision that the person will not be detained in custody after

(a) a date specified in the order;

(b) in the case of surrender for a trial, 45 days after the completion of the trial; or

(c) in the case of surrender for an appeal, 30 days after the completion of the proceedings for which the presence of the person was required.

Marginal note:Order of detention to prevail

(3) An order made under subsection (1) prevails over an order made by a Canadian court, a judge of a Canadian court, a Canadian justice of the peace or any other person who has power in Canada to compel the appearance of a person, in respect of anything that occurred before the person is transferred to Canada.

Marginal note:Variation of detention order

(4) The judge who made the detention order or another judge may vary its terms and conditions and, in particular, may extend the duration of the detention.

Marginal note:Return

(5) Subject to subsection (6), the person shall be returned to the requested State or entity on completion of the proceedings in Canada for which the person was temporarily surrendered or on the expiry of the period set out in the order, whichever is sooner.

Marginal note:Return if right of appeal

(6) The person shall not be returned to the requested State or entity

(a) if the person has been convicted in Canada, before 30 days after the conviction, unless the person or the competent authority declares that there will be no appeal; and

(b) if the person has been acquitted, before 30 days after the acquittal, unless the competent authority declares that there will be no appeal.

Marginal note:Return for appeal

(7) The court of appeal may, on application, recommend that the Minister request another temporary surrender of a person who has been returned to the requested State or entity after trial, if the court of appeal is satisfied that the interests of justice require their presence for the appeal.

Marginal note:Commencement of sentence

83 (1) Subject to subsection (3), the sentence or disposition of a person who has been temporarily surrendered and who has been convicted and sentenced, or found guilty and sentenced, in Canada, or in respect of whom a disposition has been made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, does not commence until their final extradition to Canada.

Marginal note:Warrant of committal

(2) The warrant of committal issued under the Criminal Code in respect of the person must state that the person is to be committed to custody to serve the sentence or disposition immediately on their final extradition to Canada.

Marginal note:If concurrent sentences ordered

(3) The sentencing judge may order that the person’s sentence, or the disposition under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, be executed concurrently with the sentence they are serving in the requested State or entity, in which case the warrant of committal or order of disposition shall state that the person is to be committed to custody under subsection (2) only for any portion of the sentence or disposition remaining at the time of their final extradition to Canada.

1999, c. 18, s. 832002, c. 1, s. 194
Previous Version
PART 4
Transitional Provisions, Consequential and Related Amendments and Repeals
Transitional Provisions
Marginal note: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.

Marginal note: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
86 to 88 [Amendments]

Related Amendments
89 to 128 [Amendments]

Repeals
129 and 130 [Repeals]

SCHEDULE
(Sections 2 and 9)
States or Entities Designated as Extradition Partners
Antigua and Barbuda
Australia
The Bahamas
Barbados
Botswana
Costa Rica
Ghana
Grenada
Guyana
International Criminal Court
The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by Resolution 955 (1994) of the Security Council of the United Nations
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991, established by Resolution 827 (1993) of the Security Council of the United Nations
Jamaica
Japan
Lesotho
Maldives
Malta
Mauritius
Namibia
Nauru
New Zealand
Papua New Guinea
Singapore
Solomon Islands
South Africa
St. Kitts & Nevis
St. Lucia
St. Vincent & The Grenadines
Swaziland
Trinidad and Tobago
Tuvalu
United Kingdom of Great Britain and Northern Ireland
Vanuatu
Zimbabwe

Appendix B – The Canada 1971 US Extradition Treaty

https://www.treaty-accord.gc.ca/text-texte.aspx?id=101323

(Note the 1988 protocol which dramatically changes the character of Article 2 of the treaty appended at the end as Appendix C*)

View Treaty – E101323
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Treaty on Extradition Between the Government of Canada and the Government of the United States of America
E101323 – CTS 1976 No. 3

CANADA AND THE UNITED STATES OF AMERICA,

DESIRING to make more effective the co-operation of the two countries in the repression of crime by making provision for the reciprocal extradition of offenders,

AGREE as follows:

Article 1
Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty committed within the territory of the other, or outside thereof under the conditions specified in Article 3 (3) of this Treaty.

Article 2
Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.
Extradition shall also be granted for attempts to commit, or conspiracy to commit or being a party to any of the offenses listed in the annexed Schedule.
Extradition shall also be granted for any offense against a federal law of the United States in which one of the offenses listed in the annexed Schedule, or made extraditable by paragraph (2) of this Article, is a substantial element, even if transporting, transportation, the use of the mails or interstate facilities are also elements of the specific offense.
Article 3
For the purpose of this Treaty the territory of a Contracting Party shall include all territory under the jurisdiction of that Contracting Party, including air space and territorial waters and vessels and aircraft registered in that Contracting Party or aircraft leased without crew to a lessee who has his principal place of business, or, if the lessee has no such place of business, his permanent residence in, that Contracting Party if any such aircraft is in flight, or if any such vessel is on the high seas when the offense is committed. For the purposes of this Treaty an aircraft shall be considered in flight from the moment when power is applied for the purpose of the take-off until the moment when the landing run ends.
In a case when offense 23 of the annexed Schedule is committed on board an aircraft at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation, such offense and any other offense covered by Article 2 committed against passengers or crew of that aircraft in connection with such offense shall be considered to have been committed within the territory of a Contracting Party if the aircraft was registered in that Contracting Party, if the aircraft landed in the territory of that Contracting Party with the alleged offender still on board, or if the aircraft was leased without crew to a lessee who has his principal place of business, or, if the lessee has no such place of business, his permanent residence in that Contracting Party.
When the offense for which extradition has been requested has been committed outside the territory of the requesting State, the executive or other appropriate authority of the requested State shall have the power to grant the extradition if the laws of the requested State provide for jurisdiction over such an offense committed in similar circumstances.
Article 4
Extradition shall not be granted in any of the following circumstances:
When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested.
When the prosecution for the offense has become barred by lapse of time according to the laws of the requesting State.
When the offense in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offense of the above-mentioned character. If any question arises as to whether a case comes within the provisions of this subparagraph, the authorities of the Government on which the requisition is made shall decide.
The provisions of subparagraph (iii) of paragraph (1) of this Article shall not be applicable to the following:
A kidnapping, murder or other assault against the life or physical integrity of a person to whom a Contracting Party has the duty according to international law to give special protection, or any attempt to commit such an offense with respect to any such person.
When offense 23 of the annexed Schedule, or an attempt to commit, or a conspiracy to commit, or being a party to the commission of that offense, has been committed on board an aircraft engaged in commercial services carrying passengers.
Article 5
If a request for extradition is made under this Treaty for a person who at the time of such request, or at the time of the commission of the offense for which extradition is sought, is under the age of eighteen years and is considered by the requested State to be one of its residents, the requested State, upon a determination that extradition would disrupt the social readjustment and rehabilitation of that person, may recommend to the requesting State that the request for extradition be withdrawn, specifying the reasons therefor.

Article 6
When the offense for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offense, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed.

Article 7
When the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested State for an offense other than that for which extradition has been requested, his surrender may be deferred until the conclusion of the proceedings and the full execution of any punishment he may be or may have been awarded.

Article 8
The determination that extradition should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by such law.

Article 9
The request for extradition shall be made through the diplomatic channel.
The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense, and a statement of the law relating to the limitation of the legal proceedings.
When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his arrest and committal for trial if the offense had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.
When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence passed against him in the territory of the requesting State, by a statement showing how much of the sentence has not been served, and by evidence proving that the person requested is the person to whom the sentence refers.
Article 10
Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State.
The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when, in the case of a request emanating from Canada, they are authenticated by an officer of the Department of Justice of Canada and are certified by the principal diplomatic or consular officer of the United States in Canada, or when, in the case of a request emanating from the United States, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomatic or consular officer of Canada in the United States.
Article 11
In case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel. Such application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant or arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person sought been convicted, in the territory of the requested State.
On receipt of such an application the requested State shall take the necessary steps to secure the arrest of the person claimed.
A person arrested shall be set at liberty upon the expiration of forty-five days from the date of his arrest pursuant to such application if a request for his extradition accompanied by the documents specified in Article 9 shall not have been received. This stipulation shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.
Article 12
A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:
He has left the territory of the requesting State after his extradition and has voluntarily returned to it;
He has not left the territory of the requesting State within thirty days after being free to do so; or
The requested State has consented to his detention, trial, punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.
The foregoing shall not apply to offenses committed after the extradition.
Article 13
A requested State upon receiving two or more requests for the extradition of the same person either for the same offense, or for different offenses, shall determine to which of the requesting States it will extradite the person sought.
Among the matters which the requested State may take into consideration are the possibility of a later extradition between the requesting States, the seriousness of each offense, the place where the offense was committed, the dates upon which the requests were received and the provisions of any extradition agreements between the requested State and the other requesting State or States.
Article 14
The requested State shall promptly communicate to the requesting State through the diplomatic channel the decision on the request for extradition.
If warrant or order for the extradition of a person sought has been issued by the competent authority and he is not removed from the territory of the requested State within such time as may be prescribed by the laws of that State, he may be set at liberty and the requested State may subsequently refuse to extradite that person for the same offense.
Article 15
The extent permitted under the law of the requested State and subject to rights of third parties, which shall be duly respected, all articles acquired as a result of the offense or which may be required as evidence shall, if found, be surrendered to the requesting State if extradition is granted.
Subject to the qualifications of paragraph (1) of this Article, the above-mentioned articles shall be returned to the requesting State even if the extradition, having been agreed to, cannot be carried out owing to the death or escape of the person sought.
Article 16
The right to transport through the territory of one of the Contracting Parties a person surrendered to the other Contracting Party by a third State shall be granted on request made through the diplomatic channel, provided that conditions are present which would warrant extradition of such person by the State of transit and reasons of public order are not opposed to the transit.
The Party to which the person has been extradited shall reimburse the Party through whose territory such person is transported for any expenses incurred by the latter in connection with such transportation.
Article 17
Expenses related to the transportation of the person sought to the requesting State shall be paid by the requesting State. The appropriate legal officers of the State in which the extradition proceedings take place shall, by all legal means within their power, assist the requesting State before the respective judges and magistrates.
No pecuniary claim, arising out of the arrest, detention, examination and surrender of persons sought under the terms of this Treaty, shall be made by the requested State against the requesting State.
Article 18
This Treaty shall be ratified and the instruments of ratification shall be exchanged at Ottawa as soon as possible.
This Treaty shall terminate and replace any extradition agreements and provisions on extradition in any other agreement in force between Canada and the United States; except that the crimes listed in such agreements and committed prior to entry into force of this Treaty shall be subject to extradition pursuant to the provisions of such agreements.
This Treaty shall enter into force upon the exchange of ratifications. It may be terminated by either Contracting Party giving notice of termination to the other Contracting Party at any time and the termination shall be effective six months after the date of receipt of such notice.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE in duplicate, in the English and French languages, each language version being equally authentic, at Washington this third day of December, one thousand nine hundred seventy one.

Mitchell Sharp
FOR THE GOVERNMENT OF CANADA

William P. Rogers
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

SCHEDULE
Murder; assault with intent to commit murder.
Manslaughter.
Wounding; maiming; or assault occasioning bodily harm.
Unlawful throwing or application of any corrosive substances at or upon the person of another.
Rape; indecent assault.
Unlawful sexual acts with or upon children under the age specified by the laws of both the requesting and requested States.
Willful non-support or willful abandonment of a minor when such minor is or is likely to be injured or his life is or is likely to be endangered.
Kidnapping; child stealing; abduction; false imprisonment.
Robbery; assault with intent to steal.
Burglary; housebreaking.
Larceny, theft or embezzlement.
Obtaining property, money or valuable securities by false pretenses or by threat of force or by defrauding the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretense.
Bribery, including soliciting, offering and accepting.
Extortion.
Receiving any money, valuable securities or other property knowing the same to have been unlawfully obtained.
Fraud by a banker, agent, or by a director or officer of any company.
Offenses against the laws relating to counterfeiting or forgery.
Perjury in any proceeding whatsoever.
Making a false affidavit or statutory declaration for any extrajudicial purpose.
Arson.
Any act done with intent to endanger the safety of any person travelling upon a railway, or in any aircraft or vessel or other means of transportation.
Piracy, by statute or by law of nations; mutiny or revolt on board a vessel against the authority of the captain or commander of such vessel.
Any unlawful seizure or exercise of control of an aircraft, by force or violence or threat of force or violence, or by any other form of intimidation, on board such aircraft.
Willful injury to property.
Offenses against the bankruptcy laws.
Offenses against the laws relating to the traffic in, production, manufacture, or importation of narcotic drugs, Cannabis sativa L., hallucinogenic drugs, amphetamines, barbiturates, cocaine and its derivatives.
Use of the mails or other means of communication in connection with schemes devised or intended to deceive or defraud the public or for the purpose of obtaining money or property by false pretenses.
Offenses against federal laws relating to the sale or purchase of securities.
Making or having in possession any explosive substance with intent to endanger life, or to cause severe damage to property.
Obstructing the course of justice in a judicial proceeding, existing or proposed, by:
dissuading or attempting to dissuade a person by threats, bribes, or other corrupt means from giving evidence;
influencing or attempting to influence by threat, bribes, or other corrupt means a person in his conduct as a juror; or
accepting a bribe or other corrupt consideration to abstain from giving evidence or to do or to refrain from doing anything as a juror.

Appendix C – 1988 Protocol Amending the Canada U.S. Extradition Treaty

https://www.state.gov/wp-content/uploads/2019/02/91-1126-Canada-Law-Enfmt-Extradition.pdf

91-1126-Canada-Law-Enfmt-Extradition

In most relevant part the protocol includes:

PROTOCOL AMENDING THE TREATY ON EXTRADITION BETWEEN

THE UNITED STATES OF AMERICA AND CANADA SIGNED

AT WASHINGTON ON DECEMBER 3, 1971, AS AMENDED BY

AN EXCHANGE OF NOTES ON JUNE 28 AND JULY 9, 1974

The Government of the United States of America
and the Government of Canada:
Desiring to make more effective the Extradition
Treaty between the Contracting Parties, signed at
Washington on December 3, 1971, as amended by the
agreement effected by an Exchange of Notes on June 28 and
July 9, 1974 (hereinafter referred to as “the Extradition
Treaty”):
Have agreed as follows:
ARTICLE 1
Article 2 of the Extradition Treaty is deleted
and replaced by the following:
“Article 2
(1) Extradition shall be granted for conduct which
constitutes an offense punishable by the laws of
both Contracting Parties by imprisonment or other
form of detention for a term exceeding one year or any greater punishment.
(2) An offense is extraditable notwithstanding
(i) that conduct such as interstate
transportation or use of the mails or of
other facilities affecting interstate or
foreign commerce, required for the purpose
of establishing jurisdiction, forms part of
the offense in the United States, or
(ii) that it relates to taxation or revenue or is
one of a purely fiscal character.”
ARTICLE II
The SCHEDULE to the Extradition Treaty, as
amended, is deleted.
ARTICLE Ill
Paragraph (2) of Article 3 of the Extradition
Treaty is deleted. Paragraph (3) of Article 3 of the
Extradition Treaty is amended to read as follows:
II ( 2) When the offense for which extradition is
requested was committed outside the territory of
the requesting State, the executive or other
appropriate authority of the requested State
shall grant extradition if the laws of the
requested State provide for jurisdiction over
such an offense committed in similar
circumstances. If the laws in the requested
State do not so provide, the executive authority
in the requested State may, in its discretion,
grant extradition.”

Appendix C – The 1988 Protocol – Moving From Listed Offences To Dual Criminality

https://www.treaty-accord.gc.ca/text-texte.aspx?id=103844

Second Protocol Amending the Treaty on Extradition Between the Goverment of Canada and the Government of the United States of America
E103844
Signed at Washington on December 3, 1971, as amended by an Exchange of Notes at Washington on June 28 and July 9, 1974, and by a Protocol signed at Ottawa on January 11, 1988

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA (hereinafter “the Parties”);

RECOGNIZING the close bilateral relationship which exists between them, reflected in numerous instruments and mechanisms of legal cooperation;

COMMITTED to strengthening legal cooperation in the fight against crime; and

DESIRING to make more effective the Extradition Treaty between the Parties, signed at Washington on December 3, 1971 (hereinafter “the Extradition Treaty”), as amended by an exchange of notes of June 28 and July 9, 1974, and the Protocol to the Extradition Treaty between the Parties, signed at Ottawa on January 11, 1988 (hereinafter “the Protocol”);

HAVE AGREED as follows:

Article 1
The Extradition Treaty is amended by adding the following after Article 7:

“Article 7 bis

The requested State, after granting an extradition request made in accordance with the Extradition Treaty, may temporarily surrender a person who has been convicted and sentenced in the requested State, in order that the person sought may be prosecuted in the requesting State. The temporary surrender of the person shall not divest the Courts in the requested State of jurisdiction over any appeal or habeas corpus application relating to the conviction or sentence that otherwise may be available under the laws of the requested State.
A person temporarily surrendered pursuant to paragraph 1 shall be kept in custody in the requesting State. The person shall be returned to the requested State within forty-five (45) days after the conclusion of the proceedings for which the person’s presence was required in the requesting State or at another time as specified by the requested State, in accordance with conditions to be determined by the Parties for that purpose. The return of the person to the requested State shall not divest the Courts in the requesting State of jurisdiction over any appeal or habeas corpus application that otherwise may be available under the laws of that State, in relation to the matter for which the person was temporarily surrendered.
The period of time spent in custody in the requesting State may be credited to the sentence in the requested State.
When the sentence that the person was serving in the requested State expires during the temporary surrender, the requested State may waive the return of the person and the surrender will be considered to be a final surrender. A “final surrender” is a surrender of a person pursuant to this Treaty other than as provided for by this Article.
Subject to paragraph 7, if a person temporarily surrendered and returned to the requested State has been sentenced to imprisonment in the requesting State for the offence for which the person was temporarily surrendered, the person shall be finally surrendered to the requesting State, in accordance with paragraph 6, without a further request for extradition.
Final surrender shall take place when the person has finished serving the custodial portion of the sentence in the requested State, or at an earlier time specified by the requested State.
Final surrender shall not take place when:
the requesting State advises that final surrender is no longer required due to the expiration of the sentence imposed or for other reasons; or
after the temporary surrender, the warrant or order for the final surrender of a person sought is revoked by the competent authority of the requested State.”
Article 2
Article 10(2) of the Extradition Treaty is deleted and replaced by the following text:

“(2) The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when:

in the case of a request emanating from Canada, they are authenticated by an officer of the Department of Justice of Canada and are certified by the principal diplomatic or consular officer of the United States in Canada;
in the case of a request emanating from the United States for a person who is sought for prosecution, they are certified by a judicial authority or prosecutor who attests that the evidence is available for trial and is sufficient to justify prosecution under the law of the prosecuting jurisdiction. In the case of a request emanating from the United States for a person who is sought in connection with a conviction, the documents must be certified by a judicial, prosecuting or correctional authority who attests to the fact that the documents are accurate; or
they are certified or authenticated in any other manner accepted by the law of the requested State.”
Article 3
This Second Protocol shall form an integral part of the Extradition Treaty.
Notwithstanding paragraph (2) of Article 18 of the Extradition Treaty, this Second Protocol shall apply in all cases where the request for extradition is made after its entry into force regardless of whether the offence was committed before or after that date.
This Second Protocol shall be subject to ratification, and shall enter into force upon the exchange of instruments of ratification. It shall terminate upon termination of the Extradition Treaty.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Second Protocol.

DONE in duplicate at Ottawa this 12th day of January 2001 in the English and French languages, the two texts being equally authentic.

GEORGE HAYNAL

For the Government of Canada

GORDON D. GIFFIN

For the Government of the United States of America

3 thoughts on “The Extradition Series – Part 2: The Canadian Extradition Process In A Nutshell”

andy05 says

March 27, 2020 at 10:32 am

You’ve set out the legal framework for extradition. In respect of tax debts, Bruce Zagaris wrote a definitive exposition as of 2003 https://digitalcommons.lmu.edu/ilr/vol25/iss3/9/ Beyond that, it’s worth discussing informal (and unlawful) kidnapping and rendition (1) by U.S. Government agents (notoriously by Revenue Agents during Prohibition) and in 1974 by U.S. customs officers at Douglas BC of Ronald Anderson (for military desertion): after vociferous protests by Ottawa, Secretary of State Kissinger ordered his return http://www.uniset.ca/other/news/wp_ronaldanderson.html Also (2) by private individuals, often bounty hunters. Two cases that come to mind: Sidney Jaffe https://en.wikipedia.org/wiki/Kidnapping_of_Sidney_Jaffe and Humberto Alvarez Machain https://en.wikipedia.org/wiki/Humberto_Álvarez_Macha%C3%ADn In the Alvarez Machain case, the SCOTUS ruled that the fact of respondent’s forcible abduction does not prohibit his trial in a United States court for violations of U.S. criminal laws. However he was eventually acquitted for lack of evidence http://www.internationalcrimesdatabase.org/Case/1157/Sosa-v-Alvarez-Machain/
Tracy says

March 27, 2020 at 10:40 am

So happy to be out!

So sorry for the others….

🙁
PatCanadian says

March 27, 2020 at 2:00 pm

With regard to U.S. Citizen Abroad statement “The United States appears to be aggressively interpreting its laws to apply in an extraterritorial manner and is willing to aggressively apply those laws to people who have no presence in the United States.”

Although extradition is certainly a concern, it’s not just extradition one needs to be concerned about. This is especially a large problem if one is still a US citizen:

https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023

Which states: “The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.”

The Isaac Brock Society

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