Bill C-40: A New Extradition Act (LS320E)

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	5 May 1998	First Reading:	2 December 1998
Second Reading:	20 October 1998	Second Reading:	10 December 1998
Committee Report:	25 November 1998	Committee Report:	25 March 1999
Report Stage:	30 November 1998	Report Stage:
Third Reading:	1 December 1998	Third Reading:	12 May 1999
Royal Assent: 17 June 1999 Statutes of Canada 1999, c.18 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

Bill C-40 was introduced and given first reading in the House of Commons on 5 May 1998. It proposes a significant overhaul of the law governing extradition in Canada.

Extradition is the law and process under which states surrender persons within their territory to other jurisdictions for prosecution or punishment for crimes committed in those jurisdictions. It is a necessary mechanism due, in part, to the enduring concept of national sovereignty. First of all, respect for national sovereignty means that states wishing to arrest, try and punish persons who are found in the territory of another state cannot simply go into the territory of that other state and seize the person, although such action has been resorted to from time to time. The agents and warrants of the first state have no legal status in the second state. At the same time, respect for national sovereignty precludes the second state from prosecuting the alleged offender, since the second state has no prosecutorial jurisdiction over crimes occurring in the territory of another state.

Of course, states also have a strong desire to help each other by surrendering persons who have committed crimes elsewhere. Although states may have rather selfish reasons for wanting to be rid of such persons and to avoid being a haven for criminals, factors favouring cooperation with extradition requests are often placed under the rubric of "considerations of international comity." Extradition law is, in a sense, the interplay of the principles of national sovereignty and territoriality in criminal jurisdiction, on the one hand, and the promotion of international comity, on the other. With the increasing vulnerability of all countries to criminal activity with transnational dimensions, the trend in extradition law has been towards an increasing emphasis on the principle of international comity and thus the facilitation of extradition. The amendments proposed in Bill C-40 are very much in that vein.

The bill would, in clauses 129 and 130 repeal the existing Extradition Act(1) (first enacted in 1877) and Fugitive Offenders Act(2) (first enacted in 1882), respectively. It would consolidate all extradition under a single regime. Currently, the Fugitive Offenders Act provides for a process of "rendition" between Commonwealth countries which is formally and procedurally distinct from, although substantively similar to, the extradition process of the Extradition Act.

The new Act would retain the same basic procedure and substantive conditions for extradition. Persons are subject to extradition if, after a hearing, a judge decides that there is some evidence that the person committed the offence in question, which offence is also a crime in Canada. If the judge is so satisfied, he or she commits the person to custody to await surrender by the Minister of Justice. After an opportunity to make written submissions, the Minister of Justice decides on the surrender of the person (a reminder that the giving up of persons found within one’s borders to another jurisdiction is ultimately an executive decision).(3) Moreover, the bill would retain the 1992 amendments (S.C. 1992, c. 13) which sought to streamline and expedite the extradition process by providing a consolidated and combined system of appeal (from the judicial committal decision) and judicial review (from the executive surrender decision).

Bill C-40 also proposes a number of changes to the existing law that are generally aimed at enhancing the flexibility of the system. The key changes would be as follows:

The bill would also amend the Immigration Act(5) in order to deal with the scenario where refugee claims arise during the extradition process. Bill C-40 would provide that in some cases the refugee determination decision would be merged with the surrender decision. Persons ordered surrendered for offences punishable in Canada by up to ten or more years’ imprisonment would be deemed to be rejected as refugees.

Bill C-40 also includes proposed amendments to the Mutual Legal Assistance in Criminal Matters Act(6) the Canada Evidence Act(7) and the Criminal Code(8) to provide for the procurement and reception of testimony via live audio-visual links.

A treaty or other international agreement dealing with extradition, currently referred to as an "extradition arrangement," would become an "extradition agreement," and would be defined as: "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."(9) This new definition would ensure that the Act would cover multilateral and international agreements, in addition to bilateral ones, as well as agreements dealing with broader issues of which extradition may be just one aspect. Currently, an "extradition arrangement" is defined as: "a treaty, convention or arrangement that extends to Canada made by Her Majesty with a foreign state for the surrender of fugitive criminals."

The bill would replace the current term "foreign state" with the term "extradition partner." The change is primarily designed to take account of international criminal courts and tribunals to which Canada would wish to extradite persons.

The bill would define an "extradition partner" as "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." The schedule to the bill lists 31 States plus the two existing ad hoc international war crimes tribunals (for the former Yugoslavia and for Rwanda, respectively) which would be designated as "extradition partners" under clause 9(1). Clause 9(2) would permit the Minister of Foreign Affairs, with the agreement of the Minister of Justice, to order that states or entities be added to or deleted from to the schedule of designated extradition partners.

As mentioned above, the key change brought about by this new definition would be the inclusion of international courts as places to which Canada could extradite fugitives.

This proposed change in the law to include "entities" such as international tribunals is the source of a number of editorial and consequential changes proposed throughout the bill.

Clause 3 sets out the liability of persons to be extradited under the proposed new Act. Clause 3 would preserve the traditional requirement of dual criminality – whereby Canada will only extradite where the person is sought for a crime which is also a crime here (which at present does not apply to the rendition of persons within the Commonwealth under the Fugitive Offenders Act). However, clause 3 would replace the current concept of listed "extradition crimes" with a test based on a maximum punishment threshold. Among other things, this approach would permit the automatic addition of new offences without the need to amend the Act.

Under clause 3(1), a person would be liable to be extradited from Canada in accordance with the proposed new Act and any applicable extradition agreement on a request from an extradition partner (defined above) by whom the person was wanted in respect of:

In the case of a person already under sentence, clause 3(3) would restrict extradition to cases where the person sought by the requesting State or entity had at least six months remaining in his or her term of imprisonment or a more severe punishment had yet to be carried out. Except for the requirement that the conduct for which extradition was sought in a case under a specific agreement would have to be punishable in Canada by up to five years’ imprisonment or a more severe punishment, the other punishment thresholds in clauses 3(1) and 3(3) are expressly subject to "a relevant extradition agreement." This means that these thresholds could be lowered if Canada entered into treaties or other international agreements to this effect.(10)

Clause 3(2) would make it clear that, with respect to the application of the test in clause 3(1), the underlying conduct would have to be capable of being characterized as an offence in both jurisdictions (i.e., the requesting extradition partner and Canada). Differences between Canada and the requesting State or entity in the name, definition or characterization of an offence would be irrelevant.

Clause 4 would stipulate that the discharge of a person at an extradition hearing would not preclude further attempts to extradite that person unless the judge was of the opinion that those further proceedings would be an abuse of process.

Clause 5 would provide that a person could be extradited even if the conduct for which extradition was sought had not occurred in the territory of the requesting extradition partner and even if Canada could not exercise jurisdiction in similar circumstances. This proposal seeks to address the problem of criminal activity with transnational dimensions. It would ensure that Canadian rules of prosecutorial jurisdiction would not be used to hamper prosecution by other jurisdictions with less restrictive rules; this would eliminate any potential incentive, on this score, to the use of Canada as a base of operations for such transnational criminal activity or as a place of refuge after the fact. Clause 5 would, in effect, leave the validity of the requesting extradition partner’s prosecutorial jurisdiction to be determined by the Minister or, after extradition, by the relevant internal law and processes of the extradition partner.(11)

Clause 6 would stipulate that conduct could be extraditable even if it had taken place before the coming into force of the proposed Act or of any relevant extradition agreement or specific agreement.

Clause 7 would affirm that the Minister of Justice [hereinafter, the Minister] would be responsible for the implementation of extradition agreements, the administration of the proposed Act and dealing with extradition requests made under the Act or any such agreements.

Clause 8 would provide that, not later than 60 days after its coming into force, any extradition agreement would have to be published in either the Canada Treaty Series or the Canada Gazette. Once so published, extradition agreements would be judicially noticed (i.e., their existence and content would not need to be proven in proceedings). This would change the current rule in section 8 of the Act whereby only those agreements published in the Canada Gazette may be judicially noticed. It would also eliminate the current statutory requirement in section 7 of the Act for such publication and for the laying of such agreements before both Houses of Parliament.

Clause 10(1) would provide for the making of agreements with other States or entities in order to give effect to extradition requests in particular cases. This would be a new provision available in cases where there was no general extradition agreement.

Such agreements could be made by the Minister of Foreign Affairs with the agreement of the Minister of Justice. Clause 10(2) would provide that the proposed Act would prevail to the extent of any inconsistency between it and any such specific agreement. Pursuant to clause 10(3), a certificate issued by or on behalf of the Minister of Foreign Affairs would be conclusive evidence as to the existence of any such specific agreement, and its contents.

Clause 11 would provide that a request by an extradition partner for the provisional arrest or extradition of a person would have to be made to the Minister of Justice and could be made to the Minister through Interpol. This clause would permit the relevant foreign or international authorities to transmit their requests directly to the responsible Minister, rather than through traditional diplomatic channels, as protocol would otherwise dictate.

After receiving a request from an extradition partner for the provisional arrest of a person, where the Minister of Justice was satisfied that such request was in respect of an offence which met the punishment threshold as set out in clause 3(1)(a) and that the extradition partner would make an extradition request, the Minister could, pursuant to clause 12, authorize the Attorney General of Canada [hereinafter, the Attorney General] to apply for a provisional arrest warrant.

Clause 13(1) would provide that a judge (of the superior court of the province or territory in question) could issue such a warrant on the ex parte (meaning in the absence of the other party, i.e., the alleged fugitive) application of the Attorney General. To do so the judge would have to be satisfied that to arrest the person was necessary and in the public interest, for example to prevent the person from escaping or committing an offence; the person was ordinarily resident in Canada; was in Canada or was on the way to Canada; and that a warrant for the person’s arrest or a similar order had been issued (by the requesting extradition partner) or the person had already been convicted of the offence. Clause 13(2) would set out certain technical requirements for the content of such provisional arrest warrants. Under clause 13(3), a provisional arrest warrant so issued could be executed anywhere in Canada without being endorsed; thus, a provisional warrant issued by a competent judge in one province or territory could be acted upon in another province or territory without the need for any further judicial involvement.

Clause 14(1) would set deadlines for the relevant authorities pursuing extradition proceedings with respect to a person arrested on a provisional warrant. First, an extradition request and supporting documents would have to be provided by the extradition partner and the Minister of Justice would then have to authorize the Attorney General to seek an order from the court, on behalf of the extradition partner, for the committal of the person for surrender. Where the period within which the extradition request would have to be made and the supporting documents provided was stipulated in the relevant extradition agreement, that deadline would apply (clause 14(1)(b)(i)). Where such a deadline had been observed, the Minister of Justice would then have 30 days to issue an authority to proceed to the Attorney General (clause 14(1)(b)(ii)). Where there was no extradition agreement, or no relevant provisions in such an agreement, the extradition partner would have 60 days from the provisional arrest of the person to make an extradition request and provide the supporting documents (clause 14(1)(c)(i)). Where this deadline had been observed, the Minister of Justice would then have a further 30 days to authorize the Attorney General to proceed in the case (clause 14(1)(c)(ii)).

Failure by the requesting extradition partner or the Minister of Justice to comply with these deadlines would result in the discharge of the arrested person (clause 14(1)), subject to the judge’s discretion to extend such deadlines, on the application of the Attorney General (clause 14(2)). In granting any such extension of time, the judge would also be allowed to grant, or vary the terms of, judicial interim release in respect of the arrested person (clause 14(3)). The arrested person would also be discharged if the Minister were to notify the court that an authority to proceed in the case would not be issued (clause 14(1)(a)).

Under clause 15(4), a faxed copy of the Minister’s authority to proceed would have the same evidentiary value as the original.

After receiving an extradition request and being satisfied that the extradition was being sought in respect of an offence which met the punishment thresholds with respect to the extradition partner (see clauses 3(1)(a) and 3(3) above), the Minister of Justice could issue an authority to proceed whereby the Attorney General could seek, on behalf of the extradition partner, an order committing the person for surrender (clause 15(1)). Pursuant to clause 15(2), it would be up to the Minister to determine the order in which any competing extradition requests would proceed.

Under clause 23, at any time before an extradition hearing, the Minister could substitute another order to proceed; all documents issued and orders made by the court would continue to apply to the new authority to proceed, unless, on application of the person or the Attorney General, the court ordered otherwise. Where a different authority to proceed had been substituted, the judge could, on application of the person, set a new hearing date. After the hearing had begun, an authority to proceed could be amended by the judge on the application of the Attorney General. The Attorney General could, at any time, withdraw an authority to proceed, whereupon the court would have to discharge the person and set aside any order made respecting the person’s detention or judicial interim release.

Pursuant to clause 16(1), after the Minister had issued an authority to proceed, the Attorney General could apply ex parte for a summons to appear or for an arrest warrant for the person involved. The application for a summons or arrest warrant would be to a judge of the province in which the Attorney General believed the person was, was last known to be, or to which the person was on his or her way. This procedure would be unnecessary where the person had already been arrested under a provisional arrest warrant (clause 16(2)).

A judge acting on such an application for a summons or an arrest warrant would be required, in accordance with section 507(4) of the Criminal Code (clause 16(3)), to issue a summons where a case had been made out by the Attorney General for compelling the appearance of the person; the judge would be required to issue an arrest warrant where there were reasonable grounds to believe that this would be necessary, in the public interest. Clause 16(4) would provide that any such summons could be served, and any such arrest warrant could be executed, anywhere in Canada. A summons would have to set an appearance date not less than 15 days after the issuance of the summons (clause 16(5)(a)) and would have to require the person to appear at a stated time and place for fingerprinting, photographs and any other identifying processes authorized under the Identification of Criminals Act(12) (to which a person who so appeared would be subject by virtue of clause 16(6)).

Clause 17 would provide that a person arrested under the Act would be brought before a judge, provincial court judge or justice of the peace within 24 hours after the arrest. If no judge or justice was available during this time, the person would have to be brought before a judge or justice as soon as possible. However, the provincial court judge or justice could only order that the person be detained in custody and brought before a judge. A judge would have to either release the arrested person, with or without conditions, or order the person’s detention in custody (clause 18(1)). Pursuant to clause 19, the relevant provisions of the Criminal Code (Part XVI) dealing with the preliminary appearance and judicial interim release of accused persons would apply (with necessary modifications) to persons arrested or summoned under the proposed Act. Clause 18(2) would provide for the review of a judge’s decision on judicial interim release by a judge of the court of appeal for that jurisdiction.

Clause 21(1)(a) would provide that the judge would have to order a person provisionally arrested (i.e., arrested prior to the issuance of the Minister’s authority to proceed) to appear before the court from time to time during the period provided for the making of the extradition request and the forwarding of supporting documents by the requesting extradition partner and the Minister’s issuance of the authority to proceed (see clause 14 above). The judge would then set a date for an extradition hearing (clause 21(1)(b)). Where the person was arrested or summoned after the issuance of the Minister’s authority to proceed, the judge would have to set a date for an extradition hearing (clause 21(2)). Under clause 21(3), the judge would be required to set an early date for a hearing, without regard to the prescribed sessions of the court. Clause 22 would permit the transfer of extradition proceedings to another place in Canada on the application of the person or the Attorney General, where the judge was satisfied that such a transfer was required by "the interests of justice."

Clause 20 would provide that section 679 of the Criminal Code, dealing with judicial interim release of a criminal accused pending appeal, would apply to judicial interim release pending: a) the determination of an appeal from an order committing the person for surrender; b) the Minister’s decision on the surrender of the person; and c) the determination of a judicial review of the Minister’s decision to surrender the person.

Currently, the Act makes no provision for waiving or consenting to any of the steps in the extradition process. However, waiver of extradition proceedings does take place and it has been allowed by the courts.(13) Bill C-40 would make express provision for persons sought by extradition partners to consent to committal or surrender or to waive the extradition process entirely.

Clause 70 would permit a person to consent to committal to custody for surrender at any time after the Minister’s issuance of an authority to proceed. Such a consent would have to be given in writing before a judge, who would have to order the committal of the person into custody to await surrender and transmit a copy of the consent to the Minister.

Clause 71 would permit a person to consent to surrender any time after arrest or appearance in court. Such consent would also have to be given in writing and before a judge and the judge would then take the same steps as in the case of a consent to a committal. In the case of a consent to surrender, the Minister could, as soon as is feasible after receiving the consent, personally order that the person be surrendered.

Clause 72(1) would permit a person, at any time after arrest or appearance, to waive extradition in writing before a judge. The judge would be required to inform the person of the consequences of the waiver and specifically: the effect of the loss of the protection of "specialty" (a protection otherwise afforded by the extradition process) and the fact that the person would be conveyed without delay to the extradition partner (clause 72(2)). Specialty is the rule whereby a person extradited cannot be prosecuted or punished for any offence committed before surrender, other than that for which the person was surrendered (unless the person is given the opportunity to return to the state from which he or she has been extradited).(14) A person who waives the extradition process entirely is in effect consenting to be dealt with as if he or she had been apprehended within the jurisdiction of the foreign State or entity and is thereby forgoing protections afforded by relevant extradition agreements.

The judge would have to order a person who had waived extradition to be conveyed in custody to the extradition partner and transmit a copy of the waiver and the conveyance order to the Minister (clause 72(3)).

Clause 73 would provide that a person escaping while in custody for conveyance would be subject to the law applicable to escaped persons accused or convicted of a crime against the laws of Canada and the custodial agent would have the power to arrest the person in fresh pursuit. This stipulation would bring the situation under section 494(1)(b) of the Criminal Code and thus permit the person having custody, or anyone else, to arrest the escaped person without a warrant.

Subject to the rest of the proposed Act, and with such necessary modifications as the circumstances required, the judge conducting an extradition hearing would have all the powers of a provincial court judge or justice of the peace conducting a preliminary inquiry in a criminal case as set out in Part XVIII of the Criminal Code (clause 24(2)). Pursuant to clause 28, a judge conducting an extradition hearing or a judicial interim release hearing in an extradition case could compel the attendance of a witness at the hearing; sections 698 to 708 of the Criminal Code (which deal with the issuance and service of subpoenas, the issuance and execution of witness arrest warrants, absconding witnesses, detention of arrested witnesses and the punishment, as contempt of court, of absconding or defaulting witnesses) would apply with any necessary modifications.

Clause 25 would preserve 1992 amendments to the Extradition Act which gave extradition judges the power to adjudicate on issues pertaining to the Canadian Charter of Rights and Freedoms, which they previously could not do.(15)

Clause 26 would empower the judge at the extradition or judicial interim release hearing to make an order, on the application of the person or the Attorney General, restricting the publication or broadcast of evidence where the judge was satisfied that it would constitute a risk to the holding of a fair trial by the extradition partner. Such a restriction could remain in effect until the person was discharged or until the completion of the person’s trial by the extradition partner. Clause 27 would empower the judge at the extradition hearing or the judicial interim release hearing to exclude from the court any person where the judge was of the opinion that such exclusion was "in the interest of public morals, the maintenance of order or the proper administration of justice…"

In the case of a person sought for prosecution by an extradition partner, clause 29(1) would require a judge to order the committal of the person into custody to await surrender where: the judge was satisfied that the person was the person sought; and there was evidence (admissible under the proposed Act) of conduct that would in Canada justify the committal of the person for trial on the equivalent Canadian offence as set out in the authority to proceed. The judge would have to order the committal of a person who had already been convicted by the extradition partner and was being sought for enforcement of a sentence, if the judge was satisfied that the conviction pertained to that person and was for conduct corresponding to the offence set out in the authority to proceed. Subject to an extradition agreement to the contrary, the extradition of a person in respect of a conviction in absentia would be treated as an extradition for prosecution, rather than for the enforcement of sentence (clause 29(5)).

In all other cases, pursuant to clause 29(3), the judge would have to order the discharge of the person.

Clause 30(1) would provide that the order of committal constituted sufficient authority to keep the person in custody, subject to an order of judicial interim release. Pursuant to clause 30(2), an order of committal would remain in force until the person was surrendered or discharged, or until a new hearing was ordered on appeal.

A significant feature of the bill would be the creation of special rules of evidence to permit the admission of evidence from the extradition partner that would not otherwise be admissible in Canadian legal proceedings.

Sections 14 through 17 of the Act provide for the reception into evidence of oral testimony under oath or solemn affirmation; duly authenticated depositions or statements taken outside Canada on oath or solemn affirmation, or copies thereof; and duly authenticated foreign certificates or judicial documents stating the fact of conviction. However, subject to those provisions, the evidence used to establish the case for extradition must currently be admissible under Canadian evidence law, including the general rule against hearsay.

Bill C-40 would considerably relax the evidentiary burden on the requesting jurisdiction in this respect by permitting the extradition judge to receive as evidence a certified "record of the case" in which the requesting jurisdiction would merely have to attest to a summary of the available evidence against the person sought and certify that such evidence was available for trial and was sufficient to justify prosecution in that jurisdiction, or had at least been legally obtained according to the law of that jurisdiction. In short, evidence gathered outside Canada in support of an extradition request would no longer have to measure up to general Canadian evidentiary standards. Moreover, such evidence would only have to be described and not actually produced.

These provisions may prove controversial and may well be the subject of constitutional challenge in the courts by accused persons fighting their extradition. While the proposed evidentiary provisions appear to represent a significant departure from the current rules, the courts have recognized that the standards of fairness that apply to the extradition process are different from those demanded for criminal trials.(16) The courts have, for example, upheld as constitutional the existing provisions for the admission of affidavit and deposition evidence at extradition hearings, despite the fact that there is no opportunity for the fugitive to cross-examine the source of such evidence.(17) Moreover, the courts have indicated that the extradition process is not a means of subjecting other jurisdictions to Canadian standards and rules for criminal justice.(18) On the contrary, the Supreme Court of Canada, in particular, has indicated that in applying the due process guarantees in section 7 of the Canadian Charter of Rights and Freedoms in the extradition context, differences between the Canadian system of criminal justice and that of the requesting jurisdiction should be accommodated.

Clause 32(1)(a) would allow the admission of a certified "record of the case" at the extradition hearing. According to clause 33, this would have to include a summary of the evidence available to the extradition partner for use in prosecution, in the case of a person sought for prosecution; and a copy of the record of the conviction and a description of the conduct to which the conviction related, in the case of a person sought for enforcement of a sentence. Other relevant documents respecting the identification of the person sought for extradition might also be included. Pursuant to clause 33(4), unless an extradition agreement provided otherwise, no authentication of such documents would be required.

Under clause 33(3), where a person was sought for prosecution, a judicial or prosecuting authority of the extradition partner would have to certify that the evidence summarized or contained in the record of the case was available for trial and that such evidence was either sufficient under the law of the extradition partner to justify prosecution, or had been gathered in accordance with the law of the extradition partner. Where a person was sought for the enforcement of a sentence, a judicial, prosecuting or correctional authority would have to certify that the documents in the record of the case were accurate.

According to clause 32(2), however, any evidence gathered in Canada would still have to satisfy Canadian rules of evidence in order to be admissible at an extradition hearing.

Other evidence which, pursuant to clause 32, could be admitted at an extradition hearing without regard to its admissibility in other Canadian legal proceedings would include the contents of documents submitted in conformity with an extradition agreement and any relevant evidence adduced by the person sought for extradition that the judge considered reliable.

The bill proposes some other specially relaxed rules of evidence for extradition hearings. Clause 34 would provide for the admission of documents with or without any solemn affirmation or oath, while clause 35 would dispense with any requirement to prove the signature of a judicial, prosecuting, correctional or other public official on a document. Under clause 36, a translation of a document into an official language of Canada could be admitted without further formality. In order to establish that the person before the court was the person sought, it would be sufficient for the name of the person before the court to be similar to the name in the documents submitted by the extradition partner and for the physical characteristics of the person before the court to be similar to those in a relevant photograph, fingerprint or other descriptive evidence (clause 37).

As is currently required by section 19(b) of the Extradition Act, clause 38(1) would require a judge who had made an order for the committal of a person for surrender to transmit to the Minister: a copy of the order; a copy of any evidence adduced at the hearing that the Minister did not already have; and any report that the judge thought fit.

Clause 38(2) would preserve the requirement of the judge under section 19(b) of the Act to inform the person that he or she had a right to appeal the committal order and that he or she would not be surrendered for 30 days. Clause 38(2) would add that the judge would also have to inform the person that he or she had the right to apply for judicial interim release (pending such appeal).

Subject to a relevant extradition agreement, clause 39 would preserve the power under section 27 of the Act to transfer to the extradition partner at the time of the surrender anything seized from the person that might be material evidence in the prosecution. Such a power would continue to be subject to the valid rights of third parties in such seized property. However, clause 39 would clearly establish that the decision to transfer such seized property was a judicial one. Clause 39(1) would provide for an order by the extradition judge for the transfer of such items to the extradition partner. Clause 39(2) would provide that the judge making such an order could include any conditions he or she considered desirable, including conditions respecting the preservation and return to Canada of a thing so transferred and the protection of the interests of third parties in it. Clause 39(1) would also clarify that for such property to be liable to transfer as evidence to the extradition partner, it need not have been found on the person in question. Clause 39(1) refers to "any thing seized when the person was arrested," whereas section 27 of the Act refers to anything "found in the possession of the fugitive at the time of his arrest..."

Clause 44 would stipulate grounds for refusing to surrender a person to an extradition partner which would apply to all cases, irrespective of any extradition agreement. Pursuant to clause 44(1), the Minister of Justice would have to refuse to make a surrender order where satisfied that this would be unjust or oppressive in the circumstances, or that the request for extradition had been made to prosecute or punish the person on grounds of race, religion, nationality, ethnic origin, language, colour, political opinions, sex, sexual orientation, age, mental or physical disability, or status, or where the person’s position could be prejudiced on such grounds. Clause 44(2) would specifically give the Minister the discretion to refuse to surrender a person for an offence in respect of which he or she could face the death penalty.

Subject to any contrary provisions in a multilateral agreement, the Minister would have to refuse to surrender a person where satisfied that: the person’s prosecution was barred by an applicable limitation period under the law of the extradition partner; the conduct in respect of which extradition was sought was a military but not also a civilian criminal offence; or the conduct in respect of which extradition was sought was a political offence or an offence of a political character (clause 46(1)). However, clause 46(2) stipulates that certain conduct could not constitute a political offence or an offence of a political character within the meaning of clause 46(1): murder or manslaughter; inflicting serious bodily harm; sexual assault; kidnapping, abduction, hostage-taking or extortion; attempting, conspiring, counselling, aiding, abetting or being an accessory after the fact, in relation to any of the foregoing conduct; and any conduct that constituted an offence which Canada, as a party to a multilateral extradition agreement, had an obligation to either prosecute or extradite an offender.

Pursuant to clause 47 (and subject to any contrary provision in a multilateral agreement) the Minister would have discretion to refuse to surrender, on the following grounds: if tried in Canada, the person would be entitled to be discharged by reason of a previous acquittal or conviction; the person had been convicted in absentia and, on surrender, could not have his or her case reviewed; the person had been under 18 at the time of the offence and the law of the extradition partner applicable to the person was not consistent with the fundamental principles governing the Young Offenders Act;(19) the conduct for which extradition was requested was the subject of criminal proceedings against the person in Canada; or none of the conduct on which the extradition request was based had taken place in territory over which the extradition partner had jurisdiction.

Pursuant to clause 48(1), where the Minister decided not to surrender a person, he or she would have to order the discharge of that person. In ordering the discharge of a person who claimed Convention refugee status under the Immigration Act, the Minister would have to forward copies of all relevant documents to the minister responsible for that Act (clause 48(2)).

Pursuant to clause 62(1)(a), no one could be surrendered prior to the expiry of 30 days from the committal order, unless the delay was waived by the person in writing in accordance with clause 62(2). There could also be no surrender of the person while any appeal or judicial review under the proposed Act was pending (clause 62(1)(b)).

Pursuant to clause 43(1), a person committed for surrender would have 30 days from the committal order in which to make submissions to the Minister of Justice regarding anything that would be relevant to the Minister’s decision on the surrender of the person. Clause 43(2) would permit the Minister to accept late submissions.

Where the person had claimed Convention refugee status under the Immigration Act, the Minister would have to consult with the minister responsible for that Act before deciding to surrender the person (clause 40(2)).

In accordance with clause 40(3), the Minister of Justice could seek any assurances from the extradition partner, or subject the extradition to any conditions, that the Minister deemed appropriate. Such conditions could include a stipulation that the person not be prosecuted for an offence other than the one referred to in the order of surrender or that a particular penalty not be imposed or enforced against a person. Where the Minister subjected the surrender of a person to such assurances or conditions, no surrender could take place until the Minister was satisfied that such assurances had been given or such conditions were agreed to by the extradition partner (clause 40(4)).

Pursuant to clause 40(1), the Minister would have 90 days from the person’s committal in which to personally order the surrender of the person to the extradition partner. Under clause 40(5), however, the Minister could extend this deadline for a further 60 days where he or she felt that further time was needed to consider a person’s submissions under clause 43. The Minister would have to file a notice of such an extension with the court of appeal where an appeal of the committal order had been filed (clause 40(6)). The Minister could also elect to postpone the making of a surrender order until the determination of any appeal of the committal order (clause 41) and would have to file a notice of postponement with that court (clause 41(1)(b)). In such a case, the Minister would then have 45 days from the court of appeal’s decision on the committal appeal in which to make the surrender order (clause 41(1)(c)). Clause 58 would set out the required content for a surrender order.

Subject to a relevant extradition agreement, where an extradition request was based on more than one offence, clause 59 would permit the Minister to order the surrender of the person sought for all the offences whether or not they met the punishment thresholds in clause 3. All the offences would have to relate to conduct that would constitute offences in Canada and at least one of the offences for which the person was being surrendered would have to meet the punishment thresholds in clause 3.

Clause 60 would authorize the reception, holding in custody and conveyance of the person into the territorial jurisdiction of the extradition partner by the persons designated in the surrender order pursuant to clause 58(e).

A person escaping while in custody would be subject to the law applicable to escaped persons accused or convicted of a crime against the laws of Canada (clause 61). In such a situation, the person or class of persons (as designated in the surrender order pursuant to clause 58(e)) in whose custody the person was placed for conveyance to the extradition partner would have the power to arrest the person in fresh pursuit.(20)

Clause 63 would provide that a surrender could take place anywhere within or outside of Canada as is agreed by Canada and the extradition partner.

Unless the Minister were to order otherwise (as in the case of a temporary surrender pursuant to clause 66, as discussed below), a surrender order would not take effect until the person had been discharged – by reason of acquittal, expiry of sentence or otherwise – in respect of any Canadian charges or convictions relating to conduct other than that for which surrender was ordered (clause 64). Clause 65 would provide that a person who was serving a sentence in Canada at the time of his or her surrender and who subsequently returned to Canada would have to serve any remaining part of the Canadian sentence.

According to clause 42, the Minister could amend a surrender order at any time before its execution.

As is currently the case under section 19.2 of the Extradition Act as a result of the 1992 amendments, both the person and the Attorney General, on behalf of the extradition partner, would have the right to appeal to the court of appeal for the province in which the extradition hearing was held (clause 49). The grounds of appeal set out in clause 49 would be virtually identical to those in section 19.2 of the Act: a question of law; a question of mixed fact and law, with leave of the court of appeal or a judge thereof; or any other ground of appeal, with the leave of the court of appeal, which appeared to that court to be sufficient.

Clause 50 of the bill would re-enact section 19.3 of the existing Act, which requires notice of an appeal or of an application for leave to appeal to be made within 30 days from the decision of the extradition hearing judge, subject to the discretion of the court of appeal, or a judge thereof, to grant an extension of time.

Clause 51 is identical to section 19.4 of the Act which requires a court of appeal hearing an extradition appeal to set an early date for the hearing, without regard to the prescribed sessions of the court. Clause 51 would also preserve the existing option of the court to defer the hearing of an appeal in respect of a committal order until the Minister of Justice has made a decision on the surrender of the appellant. However, as is currently stipulated in section 25.1(2) of the Act, clause 41(2) of the bill would preclude such a deferral by the court of appeal where the Minister filed a notice of postponement of the surrender decision (see discussion of clause 41, above), pending the court of appeal’s decision in the case.

Clause 52 would re-enact the provisions of section 19.5 of the Act which provide that sections 677, 678.1, 679, 682 to 685 and 688 of the Criminal Code,(21) as well as the rules of court for the relevant court of appeal made under section 482 of the Criminal Code, apply to extradition appeals.

Clause 53, which deals with the powers of the court of appeal on an appeal of an order for committal, would maintain the provisions of section 19.6 of the existing Act. Under these provisions, the court of appeal may allow an appeal in respect of a committal for an offence where the court is of the opinion that the order of committal should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; the order of committal should be set aside on the basis of a wrong decision on a question of law; or, on any other ground, that there has been a miscarriage of justice. The court of appeal can dismiss an appeal of a committal order where: the court does not allow the appeal on any of the foregoing grounds; or, where the court finds that there has been a wrong decision on a question of law, but is nonetheless of the opinion that there has been no substantial wrong or miscarriage of justice and that the committal order should be upheld. The provision is essentially the same as that which governs criminal appeals in indictable cases (see Criminal Code, section 686(1)(a) and (b)).

If an appeal of a committal order was allowed, clause 54, like section 19.7 of the existing Act, would require the court of appeal either to set aside the order of committal and discharge the person or order a new hearing, or delete from the order of committal an offence in respect of which the court believed the committal was not proper on the grounds described in clause 53 (above).

With respect to the powers of the court of appeal on an appeal from a discharge of the person or a stay of proceedings(22) by the extradition judge, clause 55 would maintain the provisions of section 19.8 of the existing Act. These provide that the court of appeal may allow the appeal where it is of the opinion that the discharge should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; the discharge or stay of proceedings should be set aside due to a wrong decision on a question of law; or, on any other ground, that there has been a miscarriage of justice. Otherwise, the court of appeal can dismiss the appeal. If the court of appeal sets aside a stay of proceedings, it can order a new extradition hearing. Where it sets aside a discharge, however, the court of appeal can order a new extradition hearing or it can itself order the committal of the person for surrender. The reason for the difference is that, in the case of a stay of proceedings, it is more likely that the extradition hearing would not have generated an adequate evidentiary record upon which the court of appeal could render its own judgment on the merits of the case for committal.

Like the current section 19.9 of the Act, clause 56 would permit the Supreme Court of Canada to defer the hearing of any appeal or of any application for leave to appeal in an extradition matter until the Minister of Justice had made a decision on the surrender of the person or until the relevant provincial court of appeal had adjudicated on any application for judicial review from the Minister’s decision.

Clause 57 of the bill would maintain the provisions found in section 25.2 of the current Act with respect to judicial review of a surrender order of the Minister of Justice. Those provisions were enacted as part of the 1992 amendments to the Act and provide for the consolidation of judicial review proceedings in respect of the Minister’s order with the appeal proceedings in respect of the committal order of the extradition judge. This consolidation is achieved in two ways. First of all, pursuant to section 25.2(1) of the Act (clause 57(1) of the bill), exclusive original jurisdiction to hear and determine applications for judicial review of the Minister’s surrender order is vested in the court of appeal for the province where the person was ordered committed by an extradition judge. But for this provision, judicial review of a federal minister’s decision would come under the exclusive jurisdiction of the Federal Court, Trial Division, pursuant to section 18(1) of the Federal Court Act.(23) Second, section 25.2(9) of the Act (clause 57(9) of the bill), permits a provincial court of appeal which has pending before it an appeal of a committal order, to join the hearing of an application for judicial review of the Minister’s surrender order with the hearing of the committal appeal. Prior to the 1992 amendments, there were often parallel legal proceedings in the federal and provincial court systems in respect of the same case. The other provisions respecting the procedure for judicial review of a surrender are as follows.

An application for judicial review of a surrender decision can be made by the person in respect of whom the order is made (clause 57(2)/section 25.2(2)). In other words, there is no provision for judicial review of a decision by the Minister to refuse to surrender the person.

Clause 57(3)/section 25.2(3): there is a 30-day deadline for making an application for judicial review of the Minister’s decision, although this deadline can be extended by the court of appeal.

Clause 57(4)/section 25.2(4): with respect to judicial interim release pending the judicial review application, the Criminal Code provisions governing judicial interim release pending appeal in indictable cases (section 679) apply with any necessary modifications.

Clause 57(5)/section 25.2(5): as with the other judicial proceedings relating to extradition, the court of appeal is required to schedule an early date for a hearing on an application for judicial review, regardless of the prescribed sessions of the court.

Clause 57(6)/section 25.2(6): on an application for judicial review, the court of appeal may order the Minister to do anything that the Minister has unlawfully failed or refused to do, or has unreasonably delayed doing; overturn a decision of the Minister; refer the matter back to the Minister for a new determination in accordance with any directions the court considers appropriate; or prohibit or restrain the Minister from ordering the surrender of the person.

Clause 57(7)/section 25.2(7): on such an application for judicial review, the court of appeal may grant the aforementioned relief for the same reasons as a judge of the Federal Court pursuant to section 18.1(4) of the Federal Court Act, i.e., that the Minister:

Clause 57(8)/section 25.2(8): where the only ground established for judicial review is a defect in form or technical irregularity, the court of appeal may refuse to grant any relief if it finds that no substantial wrong has occurred, or it may make an order validating the surrender order to be effective at a time and on such terms as it considers appropriate. This latter option allows the court of appeal to give the Minister a chance to correct any such defect or irregularity without invalidating the surrender decision and unduly delaying the matter.

Clause 57(10)/section 25.2(10): except as otherwise provided in the Act, provincial laws and rules of court applicable to judicial review proceedings apply to judicial review of a surrender order, subject to any necessary modifications.

Under both the current Act and Bill C-40, a person committed for surrender who has not been ordered to be surrendered or has not been surrendered pursuant to such an order within the applicable timeframes provided under the Act, can have the validity of his or her continued detention determined by the courts. In such cases, clause 69 of the bill would preserve the provision in section 28 of the Act whereby the person committed for surrender can apply to a judge of the superior court of the province in which he or she is detained for an order for discharge from custody unless sufficient cause can be shown against this.

Provision for the temporary surrender of persons serving prison sentences in Canada in order that they may be prosecuted for offences elsewhere would be a new feature of extradition law in Canada. Bill C-40 would also make provision for Canada to request temporary surrender of persons from other jurisdictions in similar circumstances. Temporary surrender has the advantage of permitting the resolution of outstanding criminal charges in a timely fashion without compromising the integrity of sentences already imposed. Timely resolution of criminal charges helps to avoid, among other things, the deterioration or compromising of evidence – including, for example, witness recollection – and is therefore in the best interests of both the prosecution and the accused.

Clause 66(1) would permit the Minister to order the surrender of a person committed for surrender who was serving a term of imprisonment in Canada to an extradition partner for prosecution or for appeal proceedings affecting that person. The Minister’s temporary surrender decision would be subject to the same deadlines as a regular surrender (clause 66(2)).

The Minister could only order a surrender in such a case where the extradition partner gave assurances that the person would remain in custody during the temporary surrender and, subject to different time limits set in an extradition agreement, that the person would be returned to Canada within 30 days of the end of the proceedings for which he or she was temporarily surrendered (clauses 66(1) and 66(3)). The Minister would also have the discretion to require the extradition partner to give an assurance that the person would be returned by a specified date or on request (clause 66(4)). On the other hand, clause 66(10) would permit the Minister, after consulting with the Solicitor General of Canada or the relevant provincial minister responsible for corrections, to waive the return of a person temporarily surrendered.

Subject to a ministerial discretion to revoke the surrender order and discharge the person (clause 66(7)), a person temporarily surrendered and returned to Canada who was convicted by the extradition partner and sentenced to a term of imprisonment would have to be finally surrendered to the extradition partner, without a further request, upon the person’s completion of his or her Canadian prison term (or sooner, if the Minister so ordered (clause 66(6)). Pursuant to clause 66(11), the Minister could order the "final surrender" of a person to the extradition partner, even though the term of imprisonment imposed by the latter did not meet the relevant punishment thresholds in clause 3.

To facilitate this "final surrender," clause 66(8) would require the authorities having custody of such a person to give the Minister reasonable notice of the time when the custodial portion of the person’s sentence was to expire. However, under clause 66(9), if the person’s Canadian sentence expired during the period that the person was temporarily surrendered to the extradition partner, the temporary surrender would become a final surrender.

Clause 68 would provide that a person subject to a temporary surrender order would be credited with any time served in custody outside Canada during the temporary surrender and would remain eligible for remission in accordance with the laws of the correctional system under which the sentence was being served.

Clause 67 would provide that a surrender order would prevail over any prior warrant or other order under which the person was detained in Canada or was at liberty under terms and conditions. As indicated above however, clause 64(1) would delay the effect of a surrender order until the expiry of any Canadian sentence, unless the Minister ordered otherwise. The net effect would be that a surrender order would override all warrants and orders for the custody or conditional liberty of a person that did not pertain to a sentence, such as pre-trial detention or judicial interim release (bail); and warrants or orders pertaining to a sentence, where the Minister so ordered. This would essentially preserve the current rules in sections 25(4) and 25(5) of the Act.

With the addition of the above provisions for temporary surrender, the law would give the Minister more flexibility. If the Minister wanted to surrender a person serving a Canadian sentence to an extradition partner for prosecution, but also wanted to ensure that the person returned to finish a Canadian sentence, the Minister could proceed under the temporary surrender provisions, thereby invoking the applicable assurances for the return of the person after prosecution. But, where the Minister was less concerned that the person complete his or her Canadian sentence, the Minister could simply "order otherwise" under clause 64(1) and the surrender order would override the continuation of the Canadian sentence; the person so surrendered would, however, still have to complete the balance of the Canadian sentence if he or she subsequently returned to Canada (clause 65).

Bill C-40 would provide for the disposal of certain claims for refugee status within the extradition process.

Clause 96 of the bill would amend section 69.1 of the Immigration Act to provide that a refugee determination hearing would not be commenced, or would be adjourned (as the case might be), where an authority to proceed was issued by the Minister of Justice (under clause 15 of the new Extradition Act, discussed above) in a case where the extradition was sought for an offence that would be punishable in Canada by imprisonment for up to ten years or more. Where such a claimant was finally discharged from the extradition proceedings, the refugee hearing could proceed.

However, where the Minister of Justice ordered surrender of a refugee claimant who had been committed by the extradition judge for an offence punishable in Canada by imprisonment for up to ten years or more, under proposed section 69.1(14) of the Immigration Act the surrender order would be deemed to be a decision by the Refugee Division of the Immigration and Refugee Board that the claimant was not a Convention refugee by virtue of article 1.F.(b) of the Convention.(24) Such a decision would not, however, be subject to the appeal or judicial review process for Refugee Division decisions. Of course, the person would still have full rights to seek judicial review of the surrender order as such. However, this new provision appears to require a committal by an extradition judge in order for the Justice Minister’s surrender decision to have the effect of disposing of the refugee claim. Thus this provision would seem not to apply where the refugee claimant waived extradition under clause 72, in which case, there would be no committal order or surrender. A new section 69.1(15) would provide that a claim for refugee status could not be made after the person’s surrender had been ordered by the Minister of Justice.

Clause 96 recognizes that, since the appropriateness of a person’s committal and surrender for extradition purposes, on the one hand, and the validity of the person’s refugee claim, on the other, seem to raise the same issues it would make sense to merge, to some extent, the two determinations (i.e., surrender and refugee status) – and especially the respective appeal and review processes. Even serious criminal conduct, however, will not always permit the surrender or removal of persons to other jurisdictions. At least in cases where there is an issue of possible torture in the requesting jurisdiction, the removal of a person under the Immigration Act without a proper risk assessment, even where there has been even serious criminal conduct, may violate the Canadian Charter of Rights and Freedoms, especially as interpreted in light of Canada’s international human rights obligations.(25) Of course, how the person is likely to be treated in the requesting country is a proper consideration by the Minister of Justice in deciding on surrender. Moreover, clause 44(1) of the bill would require the Minister to refuse surrender where to do so would be "unjust or oppressive having regard to all the relevant circumstances."

Under clause 78, the Minister of Justice could, at the request of a competent authority, make a request to a State or entity for the extradition or provisional arrest of a person for the purposes of prosecuting or imposing or enforcing a sentence on that person in respect of an offence over which Canada had jurisdiction. "Competent authority" in the case of a person sought for prosecution or imposition of sentence is defined by clause 77 as the Attorney General for Canada or the Attorney General for the province responsible for the prosecution. "Competent authority" in the case of a person sought for enforcement of a sentence is defined in the case of a penitentiary sentence as the Solicitor General for Canada, and in any other case as the relevant provincial minister responsible for corrections.

While the current Act also provides for requests by the Minister for surrender of persons from other jurisdictions, unlike Bill C-40 it does not specify the request from the responsible prosecuting or correctional authority and does not provide for a request for provisional arrest pending the preparation of a complete extradition request (see section 30 of the Act).

Like the current section 31 of the Act, clause 79 would provide for the judicial taking of evidence in support of an extradition request and would empower a judge, for this purpose, to compel the attendance of witnesses and the production of documents. Under clause 79, however, the same judges competent to conduct extradition hearings (i.e., superior court judges) would take evidence for an extradition request; under section 31 of the Act, this is the responsibility of justices of the peace or provincial court judges. Moreover, clause 79(1)(b) would provide for securing the production of "data that is recorded in any form," rather than the narrower concept of "writings or other documents" specified in section 31(2) of the Act. Clause 79(1)(d) would make express provision that the judges conducting these proceedings could certify or authenticate the evidence taken in a manner required by the requested jurisdiction.

Clause 79(2) would provide for the application of Part XXII of the Criminal Code to any orders for securing the attendance of witnesses; securing the production of evidence; receiving and recording the evidence; or certifying or authenticating the evidence according to the requirements of the requested jurisdiction. Part XXII of the Criminal Code contains rules for the issuing, service and execution of subpoenas; absconding or defaulting witnesses; taking and use of commission evidence; use of previously taken evidence; and use of videotaped evidence.

Clause 81 would provide for the conveyance into Canada of persons being surrendered to Canada and their delivery to the proper Canadian authorities. This is currently covered in section 32 of the Act. However, clause 81 would address more specifically the authority of agents from the requested jurisdiction to bring the person being surrendered into Canada and to exercise lawful custody over him or her. Clause 81(1) would specify that such entry would have to be subject to approval by the Minister of Justice. Clause 81(2) would expressly authorize the agent bringing such a person to hold the person in custody in Canada until delivery to Canadian authorities. Clause 81(3) would provide that a person escaping from such an agent would be subject to the law of Canadian criminal law provisions respecting escape from lawful custody. Finally, clause 81(4) would provide express legal authority for the authorized agent of the requested jurisdiction to arrest a person so escaping while in fresh pursuit. The combined effect of the last two provisions would be to enable such agents, or anyone else, to arrest these escaped persons without a warrant, as provided in section 494(1)(b) of the Criminal Code.

Clause 80 of the bill would preserve the application of the rule of specialty to the prosecution or punishment of persons extradited to Canada. In accordance with this rule – currently provided for in section 33 of the Act – persons who are extradited in respect of certain offences are only to be tried or punished for those offences by the requesting jurisdiction, unless they are first returned to the extraditing jurisdiction or given a reasonable opportunity to return. As with section 33 of the Act, the application of the rule of specialty in clause 80 would be subject to the provisions of an extradition agreement.

Clause 80 would, however, refine the rule as currently stated in section 33 of the Act in certain respects to clarify that the person’s departure from Canada for the purposes of complying with the specialty rule, must be voluntary. Clause 80 would extend specialty protection to cover detention as well as prosecution, sentencing and punishment. In other words, an extradited person could not, for example, be subjected to pre-trial detention for an offence other than that for which he or she had been extradited. Clause 80(b) would further extend the application of the specialty rule to the detention of persons extradited to Canada who were being held for surrender to a third jurisdiction. On the other hand, clause 80(a)(i) would expressly provide that a person extradited for a particular offence could be prosecuted, sentenced or punished for an included offence. Moreover, clause 80(a)(ii) and (iii) would provide for the waiver of specialty by either the extraditing jurisdiction or by the person extradited.

Clauses 82 and 83 would deal with persons in custody in other jurisdictions who had been temporarily surrendered to Canada for prosecution or related appeal proceedings.

Clause 82(1) would require a judge, on an application of the "competent authority" (i.e., the federal or relevant provincial Attorney General conducting the prosecution) made at any time prior to the temporary surrender, to order that the surrendered person be detained in custody. Pursuant to clause 82(2), the order would have to provide that the person would not be detained in custody after: a specified date, or 45 days after the completion of the trial (in the case of a surrender for a trial), or 30 days after the completion of the proceedings for which the person’s presence was required (in the case of a surrender for an appeal). Pursuant to clause 82(3), a detention order under clause 82(1) would prevail over any other order by a Canadian court in respect of anything that had taken place prior to the person’s temporary surrender to Canada. However, these deadlines and the other terms and conditions of the detention order could be changed by the court (clause 82(4)).

Under clause 82(5), a person temporarily surrendered to Canada would have to be returned to the surrendering jurisdiction on either the completion of the proceedings for which he or she had been temporarily surrendered or the expiry of the detention order under clause 82(1), whichever was sooner. However, clause 82(6) would provide for a delay of up to 30 days after a trial judgment in order for an appeal to be filed, unless the person and/or the prosecution, as the case may be, declared that there would be no appeal. Where there was to be an appeal and the person was returned to the surrendering jurisdiction, the court of appeal could recommend, on an application, that the Minister request another temporary surrender of the person, provided the court was satisfied that the person’s presence was required in the interests of justice (clause 82(7).

Once a person convicted in Canada on a temporary surrender had completed the sentence in the surrendering jurisdiction, he or she would be subject to "final extradition" to Canada to serve any sentence of imprisonment imposed in respect of that conviction. Clauses 83(1) and (2) would provide that such a person’s Canadian term of imprisonment would commence and run from the moment of final extradition to Canada. However, under clause 83(3), the sentencing judge would have the option of ordering the person’s Canadian sentence to run concurrent to the sentence in the surrendering jurisdiction. In such a case, the person would only serve any remainder of the Canadian sentence on final extradition to Canada.

Clauses 74 through 76 would provide for the regulated transit through Canada of persons surrendered by one jurisdiction and for their lawful custody in Canada on their way to the receiving jurisdiction. Existing treaties already provide for Canada’s facilitation of extradition between other jurisdictions in this manner.(26)

Under clause 74(1), the Minister of Justice could consent to the transit through Canada of a person surrendered by one State or entity to another, on such terms and conditions as the Minister considered appropriate. Such a consent would authorize the officer of the surrendering or receiving jurisdiction to keep the person in custody while in Canada (clause 74(2)).

Clause 74(3) would, with any necessary modifications, make certain provisions of the bill respecting Canada’s surrender of persons applicable to a consent to transit: required content of order (clause 58); power of designated persons to receive, hold in custody and convey surrendered persons to the receiving jurisdiction (clause 60); application of Canadian law concerning escape from lawful custody to persons who escaped during surrender process (clause 61(1)); power of persons who had custody of such an escaped person to arrest the person in fresh pursuit (clause 61(2)); and the right of a person held in custody for surrender to challenge the validity of his or her continued detention where surrender, or a decision thereon, was delayed beyond the permitted timeframes (clause 69). These provisions are treated above (see parts A.16 and A.19 of this document).

Clause 75(1) would permit the Minister to authorize the entry into Canada, in order to effect a transit for extradition, of a person who would otherwise be inadmissible to Canada under section 19 of the Immigration Act. The inadmissible classes under section 19 of the Immigration Act include persons who have been involved in serious criminal conduct. The Minister’s authorization for entry of such a person could be subject to any conditions that the Minister considered desirable and would designate the place of entry of such a person as well as the place where he or she would remain pending completion of the transit and the period during which the person’s presence was authorized (clause 75(1)). Any of the terms of such an authorization, including, in particular, the specified period of the authorization, could be varied by the Minister (clause 75(2)). Pursuant to clause 75(3), a person outside or in violation of the terms of such an authorization would be deemed, for the purposes of the Immigration Act, to be a person who had remained in Canada after the termination of visitor status and therefore liable to a departure order or deportation under that Act.

A person who was being extradited from one jurisdiction to another and arrived in Canada without a prior consent to transit could, at the request of the officer having custody, be held in the custody of a Canadian peace officer for up to 24 hours, pending the Minister’s receipt of a request from the requesting jurisdiction for transit consent (clause 76).

The Mutual Legal Assistance in Criminal Matters Act(27) provides for Canadian participation in an international regime of reciprocal assistance in the investigation and prosecution of crimes. It is a regime analogous and complementary to extradition. States that are parties to mutual legal assistance agreements can call upon each other to help them in a case by obtaining evidence in their jurisdiction (for example, by obtaining and executing search warrants or by obtaining court orders for the taking of oral evidence from witnesses).

Bill C-40 would amend the Mutual Legal Assistance in Criminal Matters Act to provide for assistance to and from international authorities, such as international criminal tribunals. A definition of the new term "state or entity" would be added to section 2(1) of the Act to replace the term "foreign state"; it would cover any international criminal court or tribunal listed in the schedule (clause 97(3)). Also, a new section 4, proposed in clause 99 of the bill, would provide that the international courts or tribunals appearing in the proposed new schedule would be designated as states or entities for the purposes of the Act. The proposed schedule to the Act in clause 128 of the bill lists the current ad hoc United Nations war crimes tribunals established in respect of the former Yugoslavia and Rwanda.

Furthermore, by clause 101, a new section 8(2) would be added to the Act to ensure that international criminal courts or tribunals could receive the broadest cooperation. Under section 8 of the Act (proposed section 8(1)), mutual legal assistance requests made under an agreement are restricted to the subject-matter provided for in that agreement; however, the proposed section 8(2) would permit the Minister of Justice to give effect to a request by a state or entity whose name was in the schedule to the Act (which would, pursuant to clauses 2, 4 and 128, be international criminal courts and tribunals), regardless of the subject-matter of the request.

The bill would also replace the current term "treaty" and its definition with the new term "agreement" (clause 97(3)). Like the analogous proposed changes to the Extradition Act, the new term would cover bilateral, multilateral and international agreements containing any provision respecting mutual legal assistance in criminal matters; the current term covers only those agreements where mutual legal assistance is "the primary purpose or an important part" of the agreement.

Clause 99 would amend section 4 of the Act and would eliminate the current requirement for the Governor in Council to maintain and amend, by orders, in a schedule to the Act, a list of all the parties to relevant multilateral agreements and their accession dates. Instead, the schedule would contain only the names of the relevant international criminal courts and tribunals and could be amended by the Minister of Foreign Affairs with the agreement of the Minister of Justice.

Clause 99 would also amend section 5 of the Act to provide an alternative method for the official publication and judicial notice of relevant agreements in this area involving Canada. Such agreements could be published in the Canada Treaty Series within 60 days of coming into force and such publication would have the same effect as publication in the Canada Gazette; such agreements would have to be judicially noticed.

Clause 113 would amend the Act by adding new sections to provide for the procuring of testimony by audio-visual link for use in foreign or international criminal proceedings outside Canada.

Under a new section 22.1 of the Act, the Minister of Justice would receive and could approve requests by a State or entity to compel a person in Canada to provide evidence or a statement via an audio-visual link in criminal proceedings in the territory where the requesting State or entity had jurisdiction. Where the Minister approved such a request, he or she would have to provide a "competent authority" (according to section 2(1) of the Act: the Attorney General of Canada, the attorney general of the relevant province or any prosecutorial or investigative agents thereof) with any documents or information necessary to apply for such an order. The authority thus provided with such documents or information would have to apply, without notice to the person whose evidence was sought, to a judge of the province where the person might be found, for an order for the taking of such evidence.

New section 22.2(1) of the Act would provide that the judge receiving such an application could make such an order where he or she was satisfied on reasonable grounds both that an offence had been committed over which the requesting State or entity had jurisdiction and that the requesting State or entity believed that the person’s evidence would be relevant to the investigation or prosecution of the offence.

In accordance with new section 22.2(2) such an order would require the person to attend at the place fixed by the judge for the taking of such evidence and to remain in attendance until excused by the authorities of the requesting State or entity; to answer the questions put by the authorities of the State or entity according to the law applicable to the State or entity; to make a copy of a record and/or to bring a record or a copy of a record; and to bring any record or thing in his or her possession or control in order to show it to the authorities of the State or entity. According to new section 22.2(3), such an order could be executed anywhere in Canada.

New section 22.2(4) would provide that in the order for the taking of such evidence the judge could include any terms and conditions that he or she considered desirable, including terms and conditions for the protection of the interests of the person whose evidence was sought and of third parties. The judge, or any other judge of the same court, would be able to vary the terms and conditions of such an order (new section 22.2(5)). Pursuant to new section 22.2(6), the person who was the subject of such an order would be entitled to be paid the same travel and living expenses as if he or she were required to attend as a witness before the judge making the order.

Pursuant to the proposed new section 22.3 of the Act, the relevant laws of evidence and procedure of the State or entity receiving the evidence would apply to the giving of such evidence, except that the person could not be required to disclose information that would otherwise be protected by Canadian laws of non-disclosure of information or privilege. Under proposed new section 22.4, however, Canadian law of contempt of court would apply where a person refused to answer a question or produce a record or thing as ordered by the judge under new section 22.2. Consequentially, clause 114(1) would amend section 23(1)(c) of the Act to provide for the issuance of an arrest warrant for anyone who failed to attend or remain in attendance as ordered under new section 22.2, or who was about to abscond.

Clause 89 of the bill would amend the Canada Evidence Act to enable Canadian courts to order the examination of witnesses for foreign court proceedings via audio-visual link in cases of a civil or commercial nature, as well as in criminal cases. As with such testimony under the provisions proposed for the Mutual Legal Assistance in Criminal Matters Act, the giving of the testimony would be subject to the laws of evidence and procedure of the foreign or international tribunal, except that the person could not be required to disclose information that would otherwise be protected by Canadian laws of non-disclosure of information or privilege; refusal to cooperate would subject the person to Canadian contempt laws (clause 90).

In addition to providing for the furnishing of audio-visual link testimony for non-Canadian judicial proceedings, Bill C-40 would provide for the taking and admission of such evidence in Canadian criminal proceedings. Clause 95 of the bill would add sections to the Criminal Code governing the provision of such evidence for proceedings in Canada.

New section 714.1 would permit a court to order testimony of a witness via audio-visual link in proceedings elsewhere in Canada, where the court considered it appropriate in all the circumstances, including: the location and personal circumstances of the witness; the costs that would be incurred if the witness had to be physically present; and the nature of the witness’s anticipated evidence.

New section 714.2(1) would require a court to receive such evidence where the witness was outside Canada, unless one of the parties could satisfy the court that this manner of receiving testimony would be contrary to the principles of fundamental justice. New section 714.2(2) would require the party seeking to call such evidence to give ten days’ prior notice to the court and the other parties to the case.

New sections 714.3 and 714.4 would provide for the possibility that courts would receive testimony by audio link only where the circumstances warranted. Where the proposed witness was elsewhere in Canada, the court could receive such evidence on the basis of the same factors as were applicable to the admission of audio-visual link testimony in new section 714.1; however, the court would also have to weigh any potential prejudice to either party resulting from the fact that the witness would not be seen. In the case of a witness outside Canada, unlike the case of an audio and visual link (see proposed new section 714.2, above), there would be no presumption in favour of receiving testimony by audio link only. The court would have to consider all the circumstances, including the nature of the witness’s anticipated testimony, as well as any potential prejudice to either party resulting from the fact that the witness could not be seen.

Notwithstanding the foregoing, according to new section 714.8, nothing would preclude the reception of audio or audio-visual link testimony where all parties consented. New section 714.7 would provide that the party wishing to introduce such evidence would have to pay the costs associated with the use of that technology.

New section 714.5 would provide that, where such evidence was provided outside Canada, the evidence would have to be given under oath or affirmation in accordance with Canadian law, under oath or affirmation in accordance with the law of the place where the witness was located, or in any other manner capable of demonstrating to the witness that he or she would have to be truthful. Furthermore, under new section 714.6, such evidence would be deemed to be given in Canada, and under oath or affirmation in accordance with Canadian law, for the purposes of the laws of evidence, procedure, perjury and contempt.

Clause 92 of the bill would amend the section of the Criminal Code dealing with the offence of perjury (sections 131) by adding a new subsection (131(1.1)) to ensure that witnesses in Canada giving evidence via audio-visual link in relation to proceedings outside Canada under the proposed new provisions of the Mutual Legal Assistance in Criminal Matters Act and Canada Evidence Act (described above) could be subject to prosecution for perjury in Canada. The new subsection would make it clear that the Criminal Code offence of perjury would be applicable regardless of whether the evidence was given on oath or affirmation in accordance with Canadian law, so long as it was given in accordance with any formalities required by the law of the site of the proceeding.

Similarly, clause 93 would amend the Criminal Code section (136) relating to the offence of giving contradictory evidence in judicial proceedings with intent to mislead. A new subsection (136(1.1)) would be added to deem any evidence given via audio or audio-visual link under any of the proposed new sections of the Mutual Legal Assistance in Criminal Matters Act, the Canada Evidence Act or the Criminal Code, to be evidence given in a judicial proceeding and thus within the reach of this offence.

Clause 94 would further amend the Criminal Code by adding a new section (700.1) to provide for the issuing of subpoenas for persons in Canada called upon to testify via audio or audio-visual link pursuant to the relevant provisions (described above) of the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act or the Canada Evidence Act. Pursuant to proposed new section 700.1(1), a court of criminal jurisdiction with jurisdiction over the place where such a witness was to testify and where such technology was available would have to issue a subpoena ordering the person to give evidence at the place in question. New section 700.1(2) would provide that the Criminal Code sections governing the issuance, content, service and enforcement of subpoenas – specifically, sections 699 to 703.2 – would apply in such a case. This provision is designed to ensure that the courts and law enforcement authorities with jurisdiction over the place from which the witness would be testifying would have the authority to enforce that witness’s attendance to give such evidence.

Bill C-40 would represent a significant overhaul and consolidation of the Canadian law of extradition. Much of the current law and practice would be preserved, but some new features are being proposed. Media reaction at the time of the bill’s introduction tended to emphasize the provisions of the bill that would permit Canada’s extradition of persons to international criminal tribunals.(28) As expected, this aspect of Bill C-40 has been uncontroversial and, indeed, has been applauded by the various interested groups that have thus far made submissions on the bill: the Canadian Council for Refugees; the Inter-Church Committee for Refugees; the Representative of the United Nations High Commissioner for Refugees; Amnesty International; and the Criminal Lawyers’ Association of Ontario. However, these groups have concerns about other aspects of the bill.

(3) Schmidt v. The Queen (1987), 33 C.C.C. (3d) 193 (S.C.C.), and Republic of Argentina v. Mellino (1987), 33 C.C.C. (3d) 334 (S.C.C.) at p. 353.

(4) There are currently two ad hoc international criminal tribunals (the war crimes tribunals in respect of the former Yugoslavia and Rwanda). Moreover, at a United Nations Diplomatic Conference in Rome in July 1998, the international community agreed to the establishment of a permanent international criminal court.

(9) A "specific agreement" is defined by reference to clause 10 of the bill which provides for the making of a specific extradition agreement in order to give effect to an extradition request in a particular case.

(10) Remember, however, the definition of "extradition agreement" (above) excludes "specific agreements" that relate to individual cases. So the clause 3 thresholds could only be lowered vis-à-vis an extradition partner by a general agreement and not just waived in a particular case.

(11) This is, in fact, the approach to be taken under the law as it exists today. See: United States of America v. Lépine, [1994] 1 S.C.R. 286, 87 C.C.C. (3d) 385, 111 D.L.R. (4th) 31.

(13) Anne Warner LaForest, LaForest’s Extradition to and from Canada, 3^rd ed., Canada Law Book Inc., Aurora, Ont., 1991, p. 45-46; and Government of Canada, Press Release, "Extradition Reforms Tabled," Ottawa, 5 May 1998, attached backgrounder.

(14) LaForest, (1991), p. 31-32. Of course, the rule only relates to offences committed in the requesting jurisdiction before extradition.

(15) S.C. 1992, c. 13, s. 2. Legislation was needed to do this since the judges presiding at extradition hearings were so acting under special statutory authority and not pursuant to any of their inherent jurisdiction as superior court judges (even though they invariably were superior court judges). Their role under the Act being equivalent to that of a provincial court judge or justice of the peace on a preliminary inquiry in a criminal case, they were deemed not to be a court competent to grant remedies under the Charter within the meaning of section 24 of the Charter: Mills v. The Queen (1986), 26 C.C.C. (3d) 481, [1986] 1 S.C.R. 863; Mellino supra., United States of America v. Allard and Charette (1987), 33 C.C.C. (3d) 501 (S.C.C.).

(16) Re Kindler and Canada (Minister of Justice) (1991), 67 C.C.C. (3d) 1 (S.C.C.), at p. 51 per McLachlin J. (L’Heureux-Dubé and Gonthier JJ., concurring).

(17) Re Decter and United States of America (1983), 5 C.C.C. (3d) 364 (N.S.S.C.), affirmed 5 C.C.C. (3d) 381n (N.S.C.A.) and Re United States of America and Smith (1984), 10 C.C.C. (3d) 540 (Ont. C.A.).

(20) In conjunction with section 494(1)(b) of the Criminal Code, these provisions of the bill would enable such agents, or anyone else, to arrest these escaped persons without a warrant.

(21) These sections deal with the following matters in respect of Criminal Code appeals in indictable cases: duty of dissenting judge to give reasons; substitutional service of notice of appeal or of application for leave to appeal; release from custody pending appeal; transmission and distribution of copies of the trial record; powers of the court of appeal to compel and receive various types of evidence; power of the court of appeal to assign counsel and order public funding of counsel for a party to the appeal in certain cases; summary disposition of frivolous appeals; and the right of accused persons to attend and participate at their appeals.

(22) In the context of an extradition hearing, a stay of proceedings would be granted as a remedy for a breach of the person’s rights under the Canadian Charter of Rights and Freedoms. References in the Act to an extradition hearing ending in a stay of proceedings were introduced with the 1992 amendment, which is also when the Act was amended to make extradition judges, as such, competent to deal with applications for remedies under the Charter.

(24) Article 1.F(b) of the United Nations Convention Relating to the Status of Refugees reads as follows:

(25) Farhadi v. Canada (Minister of Citizenship and Immigration) (20 March 1998), IMM-3846-96 (F.T.D.). See, in particular, Article 3 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1987 Can. T.S., No. 36, which reads: "No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

(28) Anne McIlroy, "Overhaul of Old Law Removes Loophole," Globe and Mail (Toronto), 5 May 1998; Stephen Bindman, "Canada Allows War Crime Suspects to Be Extradited," Ottawa Citizen, 5 May 1998; Gilles Toupin, "Un projet de loi fédéral vise à autoriser désormais l’extradition des présumés criminels de guerre," La Presse (Montréal), 6 May 1998.

(29) Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1987 Can. T.S., No. 36, Article 3.

(31) Brian Laghi and Erin Anderssen, "War-crimes Extradition Bill Called Weak," The Globe and Mail (Toronto), 23 November 1998.