Canada-China Relations Committee on Feb. 4th, 2020

[Emmanuel Dubourg, Liberal, Bourassa, QC]

Thank you.

[The Chair, Liberal, Geoff Regan]

Ms. Yip, you have the last minute.

[Jean Yip, Liberal, Scarborough—Agincourt, ON]

With respect to the coronavirus, is there adequate consular staff and planning to support the number of Canadians in the affected areas as well as the non-affected areas elsewhere in China?

[Heather Jeffrey]

Yes. You will have seen earlier this week that non-essential staff were drawn down from some of the missions in our China network. However, for us essential service—and the primary essential service in this context in China—is to provide consular services to Canadians.

We are increasing our consular staff and consular support in the China network, and full services remain available. We have a call centre staffed with over 50 people receiving calls on a 24-7 basis, and our emergency watch and response centre has been working shifts since the beginning of this crisis, fully staffed to respond to needs.

Calls come into the response centre, and we triage them so that our missions on the ground can respond to the most sensitive and difficult cases. We respond to requests for information through the call centre so that everyone can have consistent and timely information.

It's a network that we're using to support, and it isn't just within China. It's also through our standing rapid deployment team, which is increasing the number of consular officers in China. We have also deployed on the ground to Wuhan, so actually our consular support is much more extensive than it was before this outbreak.

[The Chair, Liberal, Geoff Regan]

Ms. Jeffrey and Mr. Szwarc, thank you so much for appearing this morning.

We will now suspend and allow the witnesses to depart and the next set of witnesses to take their places.

The meeting is suspended.

[The Chair, Liberal, Geoff Regan]

We'll come to order for our second hour.

We have witnesses from the Department of Justice to talk about extradition. We have Mr. Owen Rees, deputy assistant deputy attorney general; and Ms. Janet Henchey, senior general counsel and director general, international assistance group.

[Rob Oliphant, Liberal, Don Valley West, ON]

Mr. Chair, on a point of order, could I ask the members to actually take their seats so we could hear the testimony?

Thank you.

[The Chair, Liberal, Geoff Regan]

Thank you.

I think members are now taking their seats, so I'll ask the witnesses to begin their 10-minute presentation.

[Owen Rees, Deputy Assistant Deputy Attorney General, Department of Justice]

Thank you, Mr. Chair.

Good morning.

Thank you for your invitation to provide a technical briefing to the committee on the extradition framework in Canada.

My colleague, Ms. Henchey, is senior general counsel and director general of the criminal law operations section. Ms. Henchey and her colleagues at the international assistance group are responsible for the administration of the Extradiction Act and the Mutual Legal Assistance in Criminal Matters Act on behalf of the Minister of Justice.

The IAG reports to the assistant deputy attorney general of the national litigation sector, whom I support. The national litigation sector is responsible for the conduct of litigation involving the Government of Canada or any department.

You'll see we've distributed a deck, which may assist you in following our presentation this morning.

Extradition is the process—

[Rob Oliphant, Liberal, Don Valley West, ON]

Just one moment.

Mr. Chair, do we have that deck?

[The Chair, Liberal, Geoff Regan]

I certainly do. I think members may find it in the folder that's in front of them. I see you have it, Mr. Oliphant.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you. Sorry.

[The Chair, Liberal, Geoff Regan]

Thank you very much.

Carry on, please. We'll try not to have any further interruptions.

[Owen Rees]

Extradition is the process by which an accused or convicted person located in one country is surrendered to another country, pursuant to a request by an extradition partner, to face trial or the imposition or enforcement of a sentence. Extradition is an important tool of international cooperation used by Canadian and foreign police and prosecutors to fight serious crime at a global level.

The Minister of Justice is responsible for the administration of the Extradition Act and the implementation of Canada's extradition agreements, and for dealing with requests for extradition to and from Canada. At the surrender stage, the minister must personally determine whether to order the person surrendered to the requesting state. The minister's authority under the Extradition Act is otherwise, in large part, delegated to legal counsel in the international assistance group, or IAG, a group within the Department of Justice. The IAG receives the request for extradition and the request for provisional arrest warrants, which are used in urgent circumstances to arrest a person before the extradition request is received. The IAG determines whether to seek a provisional arrest warrant and whether to proceed with an extradition request. In this function, the IAG's role can be likened to prosecutorial discretion and is not subject to political influence.

Canada may extradite only to an extradiction partner, which is defined in the Extradition Act as a state or entity with which Canada has a bilateral or applicable multilateral treaty, with which Canada has entered into a specific agreement, or whose name is listed in a schedule to the act. Canada has 51 bilateral extradition treaty partners, and there are 34 designated partners identified in the Extradition Act. Canada is also party to several multilateral conventions containing provisions on extradition, such as the United Nations Convention against Transnational Organized Crimes, the United Nations Convention against the Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, and the United Nations Convention against Corruption.

There are three key stages to the extradition process in Canada. First is the issuance of the authority to proceed, the decision by the IAG exercising the delegated function of the minister to authorize the commencement of extradition proceedings before the Canadian courts. Second is the extradition hearing, which is also referred to as the judicial phase of the extradition process. Finally, there is the ministerial phase. This is the decision of the minister on whether to order the surrender of the person sought for extradition to the requesting state.

Having provided that general overview, I'll hand it over to my colleague, Ms. Henchey.

[Janet Henchey, Senior General Counsel and Director General, International Assistance Group, Department of Justice]

We started by mentioning that there are three phases, but there is a possible preliminary phase, which is a request for a provisional arrest warrant. The Extradition Act and Canada's extradition agreements allow parties to apply for provisional arrest under urgent circumstances in order to avoid the flight of a particular person.

In such circumstances, the provisional arrest, if it's approved through the issuance of an authority to arrest, precedes the other three steps. The material submitted to Canada by the requesting state in support of a request for provisional arrest is reviewed by the IAG, the international assistance group, acting on behalf of the minister. The IAG determines whether there is sufficient basis to proceed with this provisional arrest request and, if so, proceeds to request from a judge the issuance of a warrant.

A provisional arrest warrant may be issued by a superior court judge if he or she is satisfied that there are grounds of urgency, the person is in Canada or on their way to Canada and a warrant for the person's arrest has been issued in the requesting state. Where a person has been provisionally arrested, the requesting state must submit a formal request for extradition within a specific period of time following the provisional arrest, and that period is specified in the applicable treaty. Otherwise, the person must be discharged from the extradition process.

When a formal extradition request is received, it is reviewed by the IAG to determine if it meets the requirements of the Extradition Act and the treaty. In assessing whether an authority to proceed should issue, the IAG will check that the request concerns extraditable conduct within the meaning of section 3 of the act. This means that the party seeking detention is an “extradition partner”; that the person is being sought for prosecution or for the imposition of a sentence; that, subject to a relevant extradition agreement, the foreign offence in respect of which the extradition is requested is punishable by the extradition partner by imprisoning or otherwise depriving them of their liberty for a maximum term of two years or more; and that the alleged criminal conduct, had it occurred in Canada, would have constituted an offence in Canada.

As a matter of practice, the IAG also examines whether the request is likely to be successful at the extradition hearing and before the minister by looking at factors that are taken into consideration at those stages, such as the sufficiency of the evidence and the country conditions in the requesting state. If the IAG does issue the authority to proceed, this authorizes the commencement of the extradition proceedings before a superior court judge in the province where the person is located. The authority to proceed constitutes the authority of the judge to embark upon the hearing.

The extradition hearing, which is also known as a committal hearing, takes place before a superior court judge, who must decide whether to commit the person for extradition based on the evidence provided by the requesting state. Counsel for the Attorney General of Canada will file this evidence before the court at the hearing, normally in the form of something called “the record of the case”, which is a certified summary of the evidence available in support of extradition. This is also provided to the person sought, in advance of the hearing. As Canada has an open court system, all materials filed before the courts are generally available to the public unless otherwise ordered by the court.

At the hearing, the judge decides if the evidence presented on behalf of the requesting state by the Attorney General of Canada would justify a committal for trial in Canada had that conduct taken place here. This is known as the double criminality test. If the judge is satisfied that the evidence meets this test, he or she will order the person committed for extradition and the matter will move on to the ministerial phase. If the judge discharges the person from the extradition process, that concludes the proceedings.

At the committal hearing, the counsel for the person sought may bring various motions, raise objections and seek additional time to prepare, all of which makes it difficult to predict how long any given extradition hearing will take to run its course.

Once the extradition hearing is concluded, if there's a committal it moves on to the ministerial phase, where the Minister of Justice must personally determine whether to order the person surrendered to the requesting state. The grounds on which the minister may order or refuse surrender derive from three sources: the Extradition Act, the relevant treaty or agreement and the Canadian Charter of Rights and Freedoms. Counsel for the person sought for extradition may choose to make written confidential submissions to the minister to assist him in making his decision. These submissions may be in respect of any ground that might justify a refusal of surrender or justify placing a condition on an order of surrender.

The submissions made to the minister are not public, unless the minister orders the person's surrender and that person then seeks a judicial review of the decision. Then it would be filed in court.

[The Chair, Liberal, Geoff Regan]

You're at the 10-minute point. I'm going to ask you to try to wrap up relatively quickly, please.

[Janet Henchey]

Thank you.

The minister's decision balances the interests of the person sought against Canada's international obligations. He applies the mandatory and discretionary grounds of refusal in the Extradition Act. If the minister orders surrender, his decision is subject to judicial review in the provincial court of appeal. The decision of the extradition judge is also subject to appeal in the provincial court of appeal.

Finally, if the committal and the surrender order are upheld by the courts, it's possible to seek leave to appeal further to the Supreme Court of Canada.

That's a basic overview of the process.

[The Chair, Liberal, Geoff Regan]

Thank you very much.

Mr. Godin, did you have a point of order?

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

Yes, Mr. Chair.

As Canada is a bilingual country, all the documents in committee must be distributed in both official languages. However, I have received a document titled “Extradition in Canada”. Perhaps a handling error has occurred, but unfortunately, I don't have the French version.

[Janet Henchey]

That document is available in French. I believe we provided it in both languages.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Godin.

I don't see a French copy in my documents. I must advise the witnesses and all future witnesses that, if they want their documents to be distributed, they must provide them in both official languages. Documents should not be distributed if copies in both languages are not available.

On the same point of order, Mr. Albas.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

It just seems to me, because I have two English copies that have been supplied here, that Mr. Godin's concerns are well founded.

[The Chair, Liberal, Geoff Regan]

So do I. I presume that's an error, but I want to highlight again to witnesses that it's essential that if you want documents distributed, they have to be in both languages. We have the deck in both languages—I realize Mr. Harris is holding up the French language deck—but this document is only in English, as far as I can see. I think that's perhaps an error.

[Owen Rees]

Mr. Chair, I think it is an error. I thought that the documents were submitted in both official languages. We will look into this for the committee.

[The Chair, Liberal, Geoff Regan]

The chair will ensure that no document is distributed until copies in both languages are available. That is paramount.

Thank you very much, Mr. Godin. Go ahead.