Appeals from Committal

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 337-359

337

Appeals from

Committal

15

I. Bail Pending Appeal ....................................... 339

II. Powers of the Court of Appeal .............................. 339

III. Remedies on Appeals by the Person Sought ................... 342

IV. Remedies on Appeals by the Requesting State .................. 343

V. Leave to Appeal .......................................... 344

VI. Standard of Review ........................................ 345

A. Correctness ........................................ 346

B. Reasonableness ..................................... 347

VII. Fresh Evidence ........................................... 350

Appendix 15.1 Sample Notice of Appeal of Committal Order ..... 356

Appendix 15.2 Sample Notice of Application to Introduce

Fresh Evidence .............................. 359

338 Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook

The Extradition Act1 provides a person being sought for extradition with a statutory

right to appeal a committal order to the court of appeal of the province in which the

order was made.2 There is no right to bring an appeal for an interlocutory order, such

as a disclosure decision or a Charter ruling.3 Similarly, the attorney general may also

appeal to the court of appeal if the extradition judge orders the person discharged or

stays the proceeding. Either party can appeal as of right, without leave, on any question

of law. If, however, the ground of appeal relates to a question of fact or a question of

mixed law and fact, then leave to appeal is required. There is a third, residual ground

of appeal, in that the parties can appeal, with leave, on any basis that appears to be a

sucient ground of appeal. The right of appeal is governed by section 49 of the Act,

which states:

49. A person may appeal against an order of committal—or the Attorney General,

on behalf of the extradition partner, may appeal the discharge of the person or a stay of

proceedings—to the court of appeal of the province in which the order of committal, the

order discharging the person or the order staying the proceedings was made,

(a) on a ground of appeal that involves a question of law alone;

(b) on a ground of appeal that involves a question of fact or a question of mixed

law and fact, with leave of the court of appeal or a judge of the court of appeal; or

(c) on a ground of appeal not set out in paragraph (a) or (b) that appears to the

court of appeal to be a sucient ground of appeal, with leave of the court of appeal.

An appeal against committal commences with the filing of a notice of appeal. Sec-

tion 62 of the Act states that the person sought may not be surrendered until “after

the date of the final decision of the court on the appeal.” Accordingly, the filing of the

notice of appeal stays the execution of any surrender that may be made in the interim.

The time for filing a notice of appeal or application for leave to appeal is set out in

section 50(1) of the Act. Generally, it is 30 days after the decision of the judge with

respect to the committal, discharge, or stay of proceedings, although this time may be

extended in appropriate circumstances. In particular:

50(1) An appellant who proposes to appeal to a court of appeal or to obtain the leave

of that court to appeal must give notice of appeal or notice of the application for leave to

appeal not later than 30 days after the decision of the judge with respect to the committal

or discharge of the person, or the stay of proceedings, as the case may be, in any manner

that may be directed by the rules of court.

1 Extradition Act, SC 1999, c18.

2 Section 2 of the Act defines “court of appeal” as the Court of Appeal for all provinces except

for Prince Edward Island, where it is the Appeal Division of the Supreme Court.

3 Bezeredi v Canada (Minister of Justice), 2007 BCCA 443 at para 31; Canadian Charter of

Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB to the Canada Act

1982 (UK), 1982, c11.