PART 2

EXTRADITION FROM CANADA

EXTRADITION HEARING

29. Extradition when person not present at conviction

(5) Subject to a relevant extradition agreement, if a person has been tried and convicted without the person being present, the judge shall apply paragraph (1)(a).

Article 63
Trial in the presence of the accused
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it

This provision is wider than the ICC Statute.

Section 650 of the Criminal Code applies to proceedings under the CAHWCA 2000. The exceptions to the right to be present during trial are wider under Section 650 than under the Rome Statute. Whilst both start from the premise that the defendant should be present, the Criminal Code allows removal 'during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.' Such a removal is not provided for by the Rome Statute. Further, unlike the Rome Statute, Section 650 does not require that removal is a last resort and lasts for no longer than strictly necessary. Further, the Extradition Act 1999 stresses the importance attached to presence at trial. It requires that an extraditing court apply the same tests for surrender to a person tried in absentia as to an individual who has not been tried. This is unlikely to apply to proceedings concerning surrender to the ICC as individuals will not be tried in absentia by the ICC (Rome Statute, Article 63).