Part VIII INTERNATIONAL ASSISTANCE Chapter 41

41 EXTRADITION: PROVISIONAL ARREST

41.1 Introduction

Most of Canada's extradition treaties provide for a request to Canada, in urgent circumstances, for the provisional arrest of a person pending an extradition hearing. Canada may request similar assistance of its extradition partners.

This chapter sets out relevant considerations for deciding whether sufficient grounds exist to seek a warrant to arrest a person in Canada. It also describes the procedure for a Canadian authority to request the arrest of a person in the territory of an extradition partner, in urgent circumstances.

Extradition treaties do not themselves create an obligation or a power to arrest in Canada. They merely define the basis on which provisional arrest may be requested. The judicial power to order provisional arrest arises under section 13 of the Extradition Act, once the Minister of Justice approves the request for provisional arrest (section 12).

Canada's extradition treaties provide that a person arrested in Canada must be released after a specified period of time if Canada has not received a request for extradition and supporting evidence. For example, article 11 of the Canada - U.S.A. Treaty sets the limit at 60 days.

Under section 14 of the Extradition Act, a person arrested in Canada, must be discharged from custody if the request for extradition and supporting evidence are not provided within the time period set out either in the relevant extradition treaty or the Act. In addition, the person arrested must be discharged if the Minister has not issued an authority to proceed within the time period provided by the Act. The Act gives a judge the discretion to extend the time period.

41.2 Requests for Seeking Provisional Arrest of a Person in Canada

The International Assistance Group (IAG) at Headquarters^{Footnote 1} is responsible for determining whether to proceed with a request for the provisional arrest of a person in Canada. To decide this issue, the IAG will consult with the requesting partner^{Footnote 2} and Counsel acting on its behalf, to ensure that all relevant considerations are taken into account.

Requesting partners should send requests for provisional arrest to the IAG, which acts for the Minister in a delegated capacity. If the requesting partner contacts Counsel in a regional office, either directly or through a local police force, Counsel should advise the IAG of the request as soon as possible.

Generally, requests from the United States are sent by the Office of International Affairs in Washington to the IAG. Requests from countries other than the United States are often sent by Interpol to the IAG.

In both cases, the IAG determines if the person sought is in Canada or on their way to Canada and assesses the situation. If the IAG concludes that the request for provisional arrest is justified, it sends an authority to arrest and supporting documentation to the regional office for an application to the court. Counsel acting for the requesting partner will apply to the judge for the provisional arrest warrant.

In deciding whether to seek a provisional arrest warrant, consideration is given to the following:

41.2.1 Factors that support seeking a provisional arrest warrant

1. a basis to believe that the person may flee the jurisdiction or fail to appear in court if no arrest is made;
2. previous flight from another jurisdiction;
3. attempts by the person to keep their presence in Canada or abroad secret, or the ability to do so;
4. the possibility that the person will compromise or otherwise adversely affect the proceedings or the investigation abroad, for example, by intimidating or harming witnesses or destroying physical evidence;
5. the person's involvement in crimes in Canada;
6. the possibility that the person will carry out criminal offences in Canada;
7. the existence of accomplices abroad or in Canada;
8. the existence of passports, or assets in another jurisdiction;
9. any other factor suggesting that arrest would be in the public interest.

41.2.2 Factors militating against seeking a provisional arrest warrant

1. a basis to believe that the person will not flee and will show up for court;
2. the likelihood that the request for extradition and supporting evidence will not be received in time, thus resulting in proceedings being terminated;
3. the person is detained in custody in Canada in respect of another matter, and will not be released in the near future.

41.2.3 Factors which may support or militate against seeking a provisional arrest warrant, depending on the circumstances

1. the extent of the person's roots in the community and the likelihood of bail being granted;
2. the seriousness of the offence covered by the request;
3. the period for which the person may be detained under the treaty before the request for extradition and supporting evidence must be produced.

41.3 Requests by Canada for Provisional Arrest of a Person Sought by Canada

Crown counsel conducting a prosecution in Canada and seeking the provisional arrest of a person in the territory of an extradition partner, must provide to the IAG the information supporting the request. The information required is set out in the applicable treaty. The IAG reviews the request and, where appropriate, sends it to the extradition partner directly, through Interpol, or any agreed channel.