Justice Committee on Feb. 1st, 2023

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

You brought up double criminality. Would you mind explaining that concept a bit more?

[Janet Henchey]

Double criminality is really a fundamental base of extradition. The principle is that we will not extradite to, and other countries will not extradite to us, unless we're satisfied that whatever the person is charged with in that country would also be a crime in our country.

That is assessed in Canada under something called a conduct test, which means that we look at the evidence that has been provided to us about the crime and we ask this question: If we had that same evidence of conduct in Canada, would a criminal offence arise from that conduct?

The approach is flexible because it takes into account the fact that the way an offence is characterized in one country might be different. If you say the offence is called “this”, we might not call it the same thing, but it might still be a criminal offence here. By looking at the conduct rather than the name of the offence, we have a lot more flexibility.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

You also brought up evidence. As you mentioned, extradition is a very specific judicial process. Extradition proceedings are not the same as criminal proceedings under Canada's court justice system. The same is true of evidence. The usual rules and procedures of evidence do not apply.

Can you talk more about that?

Does it involve some sort of evidentiary record?

[Janet Henchey]

That's right. It is a little bit different from what you'd see in a criminal trial. What's used for evidence is something called a record of the case. The record of the case summarizes the evidence in the foreign country. It will indicate that this witness will say one thing, and that witness will say the other thing.

Instead of putting forward actual witnesses—because they're far away and maybe they don't speak the language of the proceeding in Canada—their evidence is summarized and then the record of the case is certified, usually by the prosecutor who's putting it together. This says that he is satisfied with its accuracy and that evidence is available for trial at the time, if the person is surrendered. The rationale behind it is that it's too complicated to bring in witnesses from other countries.

At one point prior to the current legislation, affidavit evidence was provided, but we discovered that a lot of countries don't even understand the concept of an affidavit, which is a sworn statement from a witness. This approach has proven to be more effective in allowing other countries to understand how to provide us with evidence.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Now that we know things can be done virtually—with Zoom and the like—perhaps the rules could be changed to allow witnesses from other countries to testify.

[Janet Henchey]

I can't really respond to that.

There are also, of course, time changes and language differences. I think it would be complicated, but that's not for me to consider.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Given the double criminality and evidence principles, do you think the individual's rights are recognized and adequately protected?

[Janet Henchey]

As I mentioned in my introduction, there are a lot of provisions in the legislation to address the rights of the individual. The whole concept behind the Extradition Act is the importance of balancing the rights of the individual against the interests of the requesting state to have them brought there for prosecution.

Yes, there are a lot of provisions that allow for the rights of the person to be protected. They can make arguments before the extradition judge. They can make arguments before the Minister of Justice.

There are no restrictions, for example, to what can be said to the Minister of Justice, so they can bring forward concerns about their health, concerns about the treatment they will get in the foreign state, concerns about treatment in prison or concerns about the length of their sentence. There is pretty much nothing they can't raise before the minister, and the minister will consider and issue written reasons for his assessment of what they have said.

That, then, goes before the court, if they choose to bring a judicial review. Everything that happens is either before a judge or before the minister and then can be appealed before the court or judicially reviewed. Then there is the opportunity to go before the Supreme Court to seek leave if they are unsatisfied with the outcome of the appeal.

There are lots of opportunities to recognize the rights of the individual.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Henchey.

Thank you, Ms. Brière.

Next we'll go to Monsieur Fortin for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Good afternoon, Ms. Henchey.

As I understand it, an important phase of the process is determining whether the crime of which the individual is accused is also considered a crime in Canada. A hearing can be held to determine—

[The Chair, Liberal, Randeep Sarai]

I'm sorry, Monsieur Fortin. There is no translation. I'm just going to check if there is a problem with their hearing you or if there is a channel issue.

Just pause for a minute, and I'll reset your time.

Do you want to say something, and we'll just see if translation is okay? Maybe the interpreters can call the clerk on any issue.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I hope that the interpreters can hear me clearly and are able to interpret what I'm saying. I'm using House equipment, so in theory, they should be able to hear me clearly.

[The Chair, Liberal, Randeep Sarai]

Monsieur Fortin, they're saying that they are not able to interpret for online participation, as the sound quality is not there. I don't know how we're going to wrestle with this. I will maybe go to you in a subsequent round.

If you're okay with that, I'll go to Mr. Garrison while they figure it out.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I have a point of order, Mr. Chair.

Forgive me, but as you know, we feel strongly that bilingualism needs to be respected and that it be possible to use both official languages to take part in parliamentary proceedings. After all, Canada is a bilingual country, in theory. With all due respect, Mr. Chair, I would ask that you suspend the meeting right now if our comments can't be interpreted.

[The Chair, Liberal, Randeep Sarai]

Can you move your mike up a little bit?

Is that helpful to the interpreters? No.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

In that case, I don't know where the problem is coming from. If there's anything I can do on my end, I will do so gladly. If not, the issue may have to do with the House equipment.

[The Chair, Liberal, Randeep Sarai]

Mr. Fortin, the problem they're having is apparently with the sound quality from your end. I know you've done everything right, but that limits their ability to translate.

While they figure it out, I'm just going to ask if I can go to Mr. Garrison and then I'll come back to you. Hopefully we can resolve this in the next six minutes, if you're okay with that.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

My issue is that I don't agree with continuing the meeting while we are having interpretation problems. I'm not the only French speaker. Not only are there others around the table, but there are also francophones following today's proceedings. A problem with interpretation hurts more than just me. It hurts all francophones. If I didn't get an opportunity to speak with the witnesses during today's meeting, we would have a democracy problem on our hands.

With all due respect, Mr. Chair, I am again asking you to suspend the meeting until the interpretation problem has been fixed.

[The Clerk of the Committee, Mr. Jean-François Lafleur]

Good afternoon, Mr. Fortin.

We are going to try to get the problem fixed. Mr. Sarai is asking me whether we can continue the meeting in the meantime and give you back the floor to ask your questions once the problem has been fixed.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I just explained why I have a problem with that. I don't know whether you're able to hear me, but I said that carrying on with the meeting was disrespectful to the other francophones as well. I'm not the only French speaker taking part in today's proceedings. If it's not possible to interpret our comments, that is a problem of democracy. Furthermore, it puts the interpreters' hearing at risk. I wouldn't want to cause anyone any harm. I realize that an interpreter already had to go to hospital because of acoustic shock.

Again, I am asking that the meeting be suspended until the problem with the interpretation has been fixed.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Are the interpreters able to interpret what I am saying when I speak French?

I'm being told that they are. That means the problem isn't here, in the room, Mr. Fortin. They seem to think that it's an issue with your headset.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I'm using the headset and Surface device provided to me by the House of Commons. I'm using only House equipment, and I've never had a problem before. As you know, we met via Zoom for two years, and there was never an issue with the equipment. If my device is defective, they will have to send me a new one.

I'm not a computer technician, so I won't attempt to diagnose the problem, but I can tell you that I'm doing what I've been told to do, as we are all asked to do when participating virtually.

[The Chair, Liberal, Randeep Sarai]

Monsieur Fortin, I'm going to suspend for a few minutes while they resolve this.

[The Chair, Liberal, Randeep Sarai]

I call the meeting back to order and resume the meeting only to advise you that we will be adjourning, as we have not been able to resolve this interpretation issue. We will have to reschedule the subsequent witnesses. We will, perhaps, have to reschedule the current witnesses as well. Maybe it will be for a shorter period of time—half an hour—to get in the round of questions that remained for them. We will figure that out.

I'm sorry about that. It's a first for me. Apparently, it's a first for the clerk as well. Hopefully, we will get this situation resolved for the next time.

Thank you to the witnesses.

If the other witnesses are listening, I sincerely apologize. You have had to wait on Zoom or online for this. You are also dismissed.

Thank you.