Post-Committal Procedures

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 271-312

271

Post-Committal

Procedures

13

I. Report of the Extradition Judge .................................... 272

II. Sending Seized Property .......................................... 274

III. Bail Following a Committal Order .................................. 276

IV. Test for Bail Following Committal .................................. 278

A. The Matter Is Not Frivolous ................................. 278

B. The Applicant Will Surrender into Custody ..................... 279

C. Public Interest ............................................ 280

V. Funding of Counsel .............................................. 283

A. Desirable in the Interests of Justice ........................... 285

B. Financial Means .......................................... 288

VI. Timing for Appeals and Applications for Judicial Review ................ 290

Appendix 13.1 Sample Notice of Application for Release Pending

Appeal .......................................... 292

Appendix 13.2 Sample Notice of Application for Release Pending

Minister’s Decision ................................ 293

Appendix 13.3 Sample Notice of Application for Release Pending

Judicial Review ................................... 294

Appendix 13.4 Sample Affidavit of Person Sought for Bail Pending

Appeal .......................................... 296

Appendix 13.5 Sample Affidavit of Surety for Bail Pending Appeal ...... 299

Appendix 13.6 Sample Affidavit of Person Sought for Bail Pending

Submissions to Minister ........................... 302

Appendix 13.7 Sample Affidavit of Surety for Bail Pending Minister’s

Decision ........................................ 305

Appendix 13.8 Sample Notice of Application for Section 684 Funding . . . 308

Appendix 13.9 Sample Affidavit of Person Sought for Section 684

Funding ......................................... 311

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

An order of committal does not end the extradition judge’s jurisdiction at the judicial

phase of the extradition process. In fact, the Extradition Act1 states that once an order

of committal is made, an extradition judge must advise the person sought of their right

to appeal the committal order. The judge must also undertake prescribed administra-

tive tasks to ensure that certain material is forwarded to the minister of justice and, if

requested, consider applications to have property seized from the person sought trans-

ferred to the requesting state for use at trial. This chapter examines these functions as

well as the right of the person sought to seek bail before the executive phase begins.

When an order of committal is made, the extradition judge must inform the person

sought that they will not be surrendered for at least 30 days, that they may appeal the

committal order, and that they have the right to apply for bail pending submissions to

the minister or any appeal. In addition, section38(1) of the Act requires that the

extradition judge forward materials to the minister to be considered at the surrender

stage. In particular, the judge must transmit the following documents to the

minister:

1. a copy of the committal order;

2. a copy of the evidence adduced at the hearing that has not already been transmit-

ted to the minister; and

3. any report that the judge sees fit.

Counsel for the attorney general will often undertake to transmit the documents to

the minister for the judge.

I. Report of the Extradition Judge

The report of the extradition judge can include anything “that the judge thinks fit,”

but must be limited to issues that are relevant to the extradition hearing and do not

encroach on the independence and the role of the minister.2 There is very little case

law, however, with respect to the scope of the report and just how far the judge can go

with the nature of information to be transmitted. In Smida, the extradition judge

rejected the Crown’s submission that the limited powers of the extradition judge and

the division of power between the judiciary and executive required a restrictive

approach. In particular, the judge held:

The very fact that section 38(1)(c) allows the judge to transmit to the Minister any report

that he thinks fit, is by itself, a strong indication that the judge can add to the content of

the order of committal, observations that will touch within the Minister’s powers, without

attacking the independence and the role of the Minister.

1 Extradition Act, SC 1999, c18.

2 Smida (Re), 2005 CanLII 57070 (Qs CS).

Chapter 13 Post-Committal Procedures 273

It is a fine line but obviously, Parliament wanted the Minister to have a most complete

file that could include relevant comments in proper cases that exceed the finding of a

prima facie case by a section XVIII justice.3

In Smida, the extradition judge advised the minister in his report that there had been

unexplained delays by the prosecution in the requesting state. He did not suggest what

should be done about the delay; he simply drew it to the minister’s attention to deal with

it as the minister deemed necessary. The judge, however, refused the defence request

to include the alleged violations of section 6 of the Charter and, in particular, the factor

aecting the decision of whether there should be a domestic prosecution. The extradi-

tion judge stated that those arguments should be advanced by the person sought in their

submissions to the minister and need not be highlighted by the extradition judge.4

In Manningham, the Ontario Court of Appeal held that in cases where the authority

to proceed enumerated the category of oences corresponding to the conduct in the

requesting state but not the particulars, the extradition judge can provide some protec-

tion of the rule of specialty in his or her report by specifying the particulars of the

transactions for which committal is ordered.5 Such an attempt to preserve the rule of

specialty was also addressed in Saad:

It may be that where the Record of the Case sets out conduct showing a number of dif-

ferent transactions of very dierent levels of severity which, however, would all technically

fall within the description of the Authority to Proceed, and the extradition judge finds

that only certain of the transactions were made out, the judge could include his findings

in his report to the Minister under s.38(1) of the Act.6

Other examples of information that has been included in the judge’s report include:

1. the fact that the person sought had already served in custody the maximum time

he would have received had he been convicted for the comparable oence in

Canada;7

2. the fact that the requesting state had improperly influenced the timing and filing

of stay of proceedings with respect to Canadian charges that the person was

facing;8 and

3. concerns about the conduct of Canadian police ocers who had extracted a

confession from the accused for a murder in the United States on the promise

3 Ibid at paras10-11.

4 Ibid at paras12-13.

5 Manningham v United States of America, 2004 CanLII 27432 (Ont CA).

6 Saad v United States of America, 2004 CanLII 9931 at para20 (Ont CA).

7 United States of America v Wilson, 2002 CanLII 15558 (Ont CA).

8 United States of America v Sagarra, 2002 CanLII 18924 (NLSCTD).