What Happens if the Surrender Order Is Upheld?

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 407-432

407

What Happens

ifthe Surrender

Order Is Upheld?

17

I. Application for Leave to Appeal to the Supreme Court of Canada .. 408

II. Bail Pending Application for Leave to Appeal to the

Supreme Court of Canada .................................. 408

III. Filing the Application for Leave to Appeal ...................... 409

A. Timing Requirements ................................ 410

B. Filing and Serving Requirements ....................... 410

IV. Physical Surrender of an Individual ........................... 413

A. Prevailing Order .................................... 414

B. Temporary Surrender ................................ 415

V. Conclusion .............................................. 417

Appendix 17.1 Sample Notice of Application for Release

Pending Application for Leave to Appeal to

the Supreme Court of Canada .................. 418

Appendix 17.2 Supreme Court of Canada Application for

Leave to Appeal ............................. 420

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

I. Application for Leave to Appeal to

the Supreme Court of Canada

If the court of appeal upholds the committal order and the order of surrender, the

person sought may seek leave to appeal to the Supreme Court of Canada. Similarly, if

the court of appeal orders the person discharged or quashes the surrender order, the

attorney general may also seek leave to appeal to the Supreme Court of Canada.

Pursuant to section62(1)(b) of the Extradition Act,1 the person being sought for

extradition may not be surrendered until “after the date of the final decision of the

court on the appeal or judicial review.” Although there is no case law on this point, it

could be argued that the filing of a notice of application to seek leave to appeal to the

Supreme Court could result in an automatic stay of execution of the surrender order.

II. Bail Pending Application for Leave to

Appeal to the Supreme Court of Canada

If the person sought is seeking leave to appeal to the Supreme Court of Canada, they

may apply for bail pending the leave application, pursuant to sections20 and 57(4) of

the Extradition Act. The test for bail is the same as the one in an application for bail

pending appeal or bail pending the hearing of the judicial review application, as dis-

cussed in Chapter13. As noted in that chapter, the test for bail is governed by section

679 of the Criminal Code2 with “any modifications that the circumstances require.”

The person sough must demonstrate that (1)the application for leave to appeal is not

frivolous; (2)that the person will attend court as required; and (3)that detention of

the person is not in the public interest.

Courts of appeal have recognized that it is dicult for a judge of the court of appeal

to determine whether an application to the Supreme Court is frivolous, because it is

dicult to determine what cases the Supreme Court will grant leave to appeal.3 Given

that the applicant must establish only that the application is not frivolous, bail is not

commonly denied on this ground alone.4

With regard to the issue of attending court as required, courts have recognized that

the risk of flight by the person sought is increased when the committal order and sur-

render order have been upheld. As explained by SaundersJA of the BC Court of Appeal

in Saxena:

1 Extradition Act, SC 1999, c18.

2 Criminal Code, RSC 1985, cC-46.

3 R v Drabinsky, 2011 ONCA 647 at para6; France v Ouzghar, 2009 ONCA 137 at para13;

and United States v Wakeling, 2013 BCCA 166 at para23.

4 United States of America v Bennett, 2014 BCCA 159; and United States of America v Virdi,

2016 BCCA 315.