Evidence of meeting #4 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was schreiber.
A recording is available from Parliament.
NDP
Pat Martin NDP Winnipeg Centre, MB
Well, I do have a question. I won't debate it. The question I have is for Mr. Walsh.
Is it not true that the Speaker's warrants issued—one to release Mr. Schreiber and one to the head of the institution to cooperate and release Mr. Schreiber—would override and have primacy over the extradition date and deadline?
That's my question.
Liberal
The Chair Liberal Paul Szabo
Before you answer, I would like to offer to Mr. Martin that I did not choose to do anything.
Liberal
The Chair Liberal Paul Szabo
If we look at the transcripts of our last meeting, we'll see that I was ordered and instructed by the committee to do some things, including the summons.
NDP
Liberal
The Chair Liberal Paul Szabo
Mr. Martin, we can check the transcripts, but I can assure everyone that I made no unilateral decisions; I have no authority; I am the servant of the committee. I believe I discharged my responsibilities precisely in accordance with the motions passed by the committee.
Mr. Walsh, you may address further, if you wish, Mr. Martin's question.
Law Clerk and Parliamentary Counsel, House of Commons
The issue isn't so much a Speaker's warrant as an order of the House. A Speaker's warrant is issued pursuant to an order of the House, and I believe it's sound law to say that an order of the House has the standing of an order of the Superior Court. It would have equal standing with, if not priority over, the order of any court affecting Mr. Schreiber.
Currently, there is no order of a court affecting Mr. Schreiber. We're now under an order of surrender.
I would take the view that, yes, the jailers—if I want to use that term, and it's not a very nice term—or the persons responsible for keeping Mr. Schreiber in custody would be obliged to respect the Speaker's warrant pursuant to a House order. Failing to do so would be potentially, or could be taken as, a contempt of Parliament by those responsible officials.
Conservative
Dean Del Mastro Conservative Peterborough, ON
Thank you, Mr. Chair.
Because we're not actually speaking with respect to his official appearance—I do have some questions on that—my first question relates back to something you said just a moment ago. I think it's very important, and I want to highlight this.
You indicated that should this stay of extradition extend for a prolonged period of time, we could in fact be giving Mr. Schreiber an argument that he's been denied due process in German court, and therefore be giving him an argument whereby he shouldn't face those charges in Germany because he was not delivered before German courts in appropriate time to face those charges.
Is that correct? That's essentially what you just said, that we're giving him a defence in Germany?
Law Clerk and Parliamentary Counsel, House of Commons
Well, no, I think you're taking what I said and putting it into a context that I didn't offer. But that's not to say that what you're saying isn't true. Ultimately it may prove to be the case, but it's speculative in nature.
All I'm saying is that when you keep anyone in jail, the onus is on the jailer, the lawful authorities, to demonstrate justification for that. You can't just go on indefinitely keeping somebody in jail without exercising proper obligations towards that individual.
Yes, at some point, Mr. Schreiber may go to court and say he's been here all this time, and he's not going through the extradition, and he's entitled to have his liberty and get bail or something so he can live a normal life, I suppose. But I didn't mean to suggest that it would necessarily give rise to arguments in Germany. Maybe it would, maybe it wouldn't; I wouldn't know.
Conservative
Law Clerk and Parliamentary Counsel, House of Commons
That's only speculation. I don't know,
Liberal
Liberal
Robert Thibault Liberal West Nova, NS
Thank you, Mr. Chair.
I have a number of questions. I recognize you're taking one question per round, but I hope we'll have an opportunity to ask further questions of you and Mr. Walsh.
First I just want to mention something regarding what Mr. Del Mastro said. There has been a request for Mr. Schreiber's presence in Germany for a long time, which he has been refusing, and he has been taking any measure he possibly can to stay in Canada. So I don't think he could make a speed-of-justice argument in Germany, because it's his refusal to go there that has kept him here.
I would like to ask you a question. You pointed out that the Minister of Justice has the authority and power to make him available. He is under surrender order by the Minister of Justice. The House has duly summoned him to appear at the House. We'd like him to be able to appear at the committee, maybe not just at one meeting, but throughout the process of our study. We are in the uncomfortable situation that as of December 1 the minister is threatening to send him out of the country. We understand that this is the minister's ultimate goal. Is there an authority of process by which we can...?
First of all, does the House supersede the minister, and second, is there a process to ensure that? Can we apply to the court for an injunction for a stay of extradition? Is there a tool the committee should be using at the present time?
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, I would expect that the lawyers for Mr. Schreiber might be exercising the options available to them, perhaps later this week, relative to seeking a stay of any extradition pending the application for leave to appeal being decided, and, if it is allowed, then the appeal that follows. I would expect them to be doing that. I don't think it's the House's place to be seeking a stay of the extradition order in the courts.
Liberal
Robert Thibault Liberal West Nova, NS
But the point I tried to make, Mr. Walsh, is the House has an order for his presence, or the committee does, but there is a chance the minister is refusing to make him available. He could be extradited on December 1 before the House can hear him.
Is there some preventative measures that the House committee could take?
Law Clerk and Parliamentary Counsel, House of Commons
In my respectful view, once again referring to the comment of the Ontario Court of Appeal—which doesn't surprise me, but it's convenient that they had the wherewithal to say this—the ultimate decision is essentially a political decision. So also that's what you have here. You have a situation where the House summons the witness. It wants that witness before it. In my view, it's within the power of the minister to facilitate that witness being here. If that doesn't happen, then it's a difference between the House, on behalf of the committee, and the minister, and it's handled in that context. It's not an issue that goes before the courts. It's for the House to decide and then, on the recommendation of the committee, the House may well decide to call upon the minister for some accounting or take some other measure.
Liberal
Charles Hubbard Liberal Miramichi, NB
Thank you, Mr. Chair.
First of all, we talk about a summons being delivered.
Mr. Chair, do we in fact know that it has been received? There's a big difference between when it's prepared and when it's received.
Secondly, I seem to understand that what Mr. Walsh is saying is that the future of Mr. Schreiber and Mr. Schreiber's appearance before this committee rests with the Minister of Justice. The courts have said that, his opinion is that, and I guess our minister is one who has to decide whether or not the summons can be fulfilled.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, that is my view; it's within the power of the minister to put off effecting execution of the extradition pending completion of these proceedings. It's his call. It's his judgment as to what he thinks is appropriate.
I don't believe it's fully correct to say that since the Extradition Act provides him with no authority to delay, therefore he can't delay. It's true the Extradition Act does not expressly provide that authority, but it does give authority to amend a surrender order and the court has indicated it's a political decision, and the order itself has no date in it. To me, an order that has no date in it is an order that's pending execution at the discretion of the person having the authority to make the order.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I want to be clear on the terminology that's being used. I've heard the word “summons”. I've heard the word—
Liberal