PART 2

EXTRADITION FROM CANADA

MINISTER’S POWER TO RECEIVE REQUESTS

11. Provisional arrest request to go to Minister

(2) A request by an extradition partner for the provisional arrest of a person may also be made to the Minister through Interpol.

PART 2

EXTRADITION FROM CANADA

WARRANT FOR PROVISIONAL ARREST

12. Minister's approval of request for provisional arrest

The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that

(a) the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); and
(b) the extradition partner will make a request for the extradition of the person.

PART 2

EXTRADITION FROM CANADA

WARRANT FOR PROVISIONAL ARREST

13. Provisional arrest warrant

(1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person, if satisfied that there are reasonable grounds to believe that

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;
(b) the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and
(c) a warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.

PART 2

EXTRADITION FROM CANADA

WARRANT FOR PROVISIONAL ARREST

13. Contents of the warrant

(2) A provisional arrest warrant must

(a) name or describe the person to be arrested;
(b) set out briefly the offence in respect of which the provisional arrest was requested; and
(c) order that the person be arrested without delay and brought before the judge who issued the warrant or before another judge in Canada.

PART 2

EXTRADITION FROM CANADA

WARRANT FOR PROVISIONAL ARREST

13. Execution throughout Canada

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

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. Extension

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

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

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

ARREST OR SUMMONS FOLLOWING AUTHORITY TO PROCEED

16. When provisionally arrested

(2) If the person has been arrested pursuant to a provisional arrest warrant issued under section 13, the Attorney General need not apply for a summons or warrant under subsection (1).

PART 2

EXTRADITION FROM CANADA

APPEARANCE

19. Criminal Code

Part XVI of the Criminal Code applies, with any modifications that the circumstances require, in respect of a person arrested under section 13 or 16 or to whom a summons has been issued under section 16.

PART 2

EXTRADITION FROM CANADA

APPEARANCE

21. Date of hearing - provisional arrest

(1) If a person has been provisionally arrested, the judge before whom the person is brought shall

(a) order the person to appear before the court from time to time during the period referred to in paragraph 14(1)(b) or (c); and
(b) set a date for the extradition hearing if the Minister has issued an authority to proceed.

PART 3

EXTRADITION TO CANADA

78. Request for provisional arrest

(2) The Minister, at the request of a competent authority, may make a request to a State or entity for the provisional arrest of the person.
1999, c. 18, s. 78; 2002, c. 1, s. 192.

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the
arrest and surrender of the person under Part 9.

Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for arrest and surrender
shall immediately take steps to arrest the person in question in accordance with its laws and the
provisions of Part 9.
2. A person arrested shall be brought promptly before the competent judicial authority in the
custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial
State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the custodial
State shall consider whether, given the gravity of the alleged crimes, there are urgent and
exceptional circumstances to justify interim release and whether necessary safeguards exist to
ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be
open to the competent authority of the custodial State to consider whether the warrant of arrest
was properly issued in accordance with article 58, paragraph 1 (a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make
recommendations to the competent authority in the custodial State. The competent authority in
the custodial State shall give full consideration to such recommendations, including any
recommendations on measures to prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may request periodic
reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the
Court as soon as possible.

Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.

This provision follows the ICC Statute.

 

The Extradition Act 1999 provides that requests for provisional arrest may be transmitted by Interpol. In order for the minister to order a provisional arrest he must be satisfied that surrender will be requested. This is in accordance with the Rome Statute, which only allows provisional arrest when a request is pending. The warrant for provisional arrest must contain details that mirror those that must be transmitted by the ICC when issuing a request for provisional arrest. The detailed procedures that must take place following the reciept of a request for arrest and surrender do not apply to provisional arrests, but must take place once the provisional arrest has been converted into a request for arrest and surrender. A judge is empowered to hold hearings regarding provisionally arrested individuals during the period of thier detention and to decide when formal transfer proceedings will take place.