PART 2

EXTRADITION FROM CANADA

WARRANT FOR PROVISIONAL ARREST

14. Discharge if no proceedings

(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.

PART 2

EXTRADITION FROM CANADA

WARRANT FOR PROVISIONAL ARREST

14. 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. 14; 2000, c. 24, s. 49.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

18. Decision of judge

(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.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

18. 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.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

18. 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.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

18. Review by court of appeal

(2) A decision respecting judicial interim release may be reviewed by a judge of the court of appeal and that judge may

(a) confirm the decision;
(b) vary the decision; or
(c) substitute any other decision that, in the judge’s opinion, should have been made.

1999, c. 18, s. 18; 2000, c. 24, s. 50.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

20. Section 679 of the Criminal Code

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.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

22. Application for transfer

(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.

PART 2

EXTRADITION FROM CANADA

SUBSTITUTION AND AMENDMENT OF AUTHORITY TO PROCEED

23. 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.

PART 2

EXTRADITION FROM CANADA

EXTRADITION HEARING

26. Order restricting publication of evidence

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.

PART 2

EXTRADITION FROM CANADA

EXTRADITION HEARING

27. Exclusion of person from hearing

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.

PART 2

EXTRADITION FROM CANADA

EXTRADITION HEARING

28. Power to compel witnesses

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.

PART 2

EXTRADITION FROM CANADA

EXTRADITION HEARING

30. Authority to keep person in custody

(1) The order of committal constitutes the authority to keep the person in custody, subject to an order of judicial interim release.

Article 59
Arrest proceedings in the custodial State
3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

This provision is narrower than the ICC Statute.

 

The grant of interim release under the Extradition Act 1999 is not restricted in the manner indicated in Article 59(4) of the Rome Statute, which provides that the competent authority in the custodial State shall consider a range of factors in deciding whether or not to grant the application. The Extradition Act does not provide that the national judge should heed the recommendations made by the Pre-Trial Chamber of the ICC, in accordance with Article 59(5) of the Rome Statute. A decision regarding interim release may be the subject of an appeal. The provisions of the Criminal Code regarding interim release are applied in respect of those crimes addressed under the Extradition Act 1999, with any necessary modifications. Relevant provisions address matters such as failure to attend and conditions. The national provisions regarding interim release apply during an appeal period. If the authority to proceed is withdrawn, the accused must be freed from any conditions that accompany his interim release. The Canadian Court may order that hearings regarding the interim release of accused individuals are not to be the subject of publication, in order that the trial at the ICC is fair. Once a committal order has been issed the court may still order interim release, although the presumption is in favour of detention.