Extradition Bail

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 69-91

69

Extradition Bail

3

I. Jurisdiction and Forum .................................... 70

II. The Legal Framework ...................................... 70

III. Onus ................................................... 72

IV. Evidentiary Issues at Extradition Bail Hearing .................. 73

V. Publication Bans ......................................... 74

VI. Grounds for Detention ..................................... 75

A. Primary Ground ..................................... 75

B. Secondary Ground .................................. 77

C. Tertiary Ground ..................................... 77

VII. Release Plans ............................................ 79

A. Sureties ........................................... 79

B. Terms of Release .................................... 81

VIII. Bail Reviews ............................................. 83

A. Forum for Bail Review ................................ 83

B. Standard of Review .................................. 84

C. Material Change in Circumstances ..................... 84

Appendix 3.1 Sample Surety Caution ....................... 86

Appendix 3.2 Sample Affidavits of Person Sought and of

Proposed Surety ............................. 88

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

I. Jurisdiction and Forum

A person arrested in Canada for extradition to another country has the right not to be

denied bail without just cause. These bail hearings are conducted in the Superior Court

of the province in which the person is arrested and, as such, are governed by the rules

of criminal proceedings for that jurisdiction.1

The steps in the bail process are illustrated in Figure 3.1 and explained in detail in

the balance of the chapter.

II. The Legal Framework

Once brought before the Superior Court, bail pending an extradition hearing is gov-

erned by sections 18 and 19 of the Extradition Act.2 Section 18 provides:

18(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 Crim-

inal Code, that their detention in custody is not justified, and

(ii) the judge is satisfied that, given the gravity of the alleged oence, 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.

The standard for releasing a person pending the extradition hearing depends, in

part, on the nature of the request. In other words, section 18 distinguishes between

persons who are arrested on the request of the International Criminal Court (ICC)

and those who are not. For those cases in which the ICC is seeking extradition, section

18(1)(a) puts a heavy onus on the person sought to demonstrate that there are “urgent

and exceptional circumstances” that justify the person being released and to demon-

strate that the person will appear in court as required.3

Assuming that the request is not made at the behest of the ICC, section 18(1)(b)

applies and a judge must then address the issue of bail through the lens of section 19,

1 For example, in the Toronto jurisdiction, all applications for bail must be in writing and

include adavits of all proposed sureties.

2 Extradition Act, SC 1999, c18.

3 To date, there are no known cases of anyone having been extradited from Canada as a result

of a request from the ICC. (See Gary T Trotter, The Law of Bail in Canada, 3rd ed (Toronto:

Carswell, 2010) (loose-leaf ) 14.2(b) at 14-5.) As a result, there are currently no guidelines

with respect to how these standards will be applied.