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

EXTRADITION HEARING

29. Discharge of person

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

PART 2

EXTRADITION FROM CANADA

EXTRADITION HEARING

30. Duration of order

(2) The order of committal remains in force until the person is surrendered or discharged or until a new hearing is ordered under paragraph 54(a).

PART 2

EXTRADITION FROM CANADA

REASONS FOR REFUSAL

48.
Discharge

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

PART 2

EXTRADITION FROM CANADA

REMEDY


69. Remedy in case of delay

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

(a) the Minister has not made an order of surrender under section 40
(i) before the expiry of the period referred to in subsection 40(1) and any additional period referred to in subsection 40(5), or
(ii) if a notice of postponement has been filed under paragraph 41(1)(b), before the expiry of 45 days after the date of the decision of the court of appeal referred to in paragraph 41(1)(c); or
(b) the person is not surrendered and conveyed to the extradition partner
(i) within 45 days after the order of surrender is made by the Minister under section 40, or
(ii) if an appeal or judicial review in respect of any matter arising under this Act, or an appeal from such an appeal or judicial review, is pending, within 45 days after the final decision of the court is made,
over and above, in any case referred to in subparagraph (i) or (ii), the time required to convey the person to the extradition partner.

Article 92
Provisional arrest
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.

This provision follows the ICC Statute.

The Extradition Act 1999 provides that if the authority to proceed is withdrawn the accused must be released and any interim release conditions removed. If the Attorney-General fails to show that a committal should be ordered then the accused must be released. This shows the need for the ICC and the Canadian authorities to make sure that they have sufficient evidence to commit before commencing the proceedings. If the minister exercises his discretion not to make a surrender order, the accused must be released. If there is a breach of the time limits contemplated by the Extradition Act 1999, a court may remedy these breaches by ordering the release of the accused. In particular, if the accused is not surrendered within the time limits contemplated and the minister cannot provide a reason for the failure to surrender, which is usually the fact that there are continuing proceedings involving the accused, then the individual will be released.