Justice Committee on Feb. 6th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 47 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to Standing Order 108(2) and the motion adopted on January 30, 2023, the committee is beginning its study on extradition law reform.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I would like to take a few moments for the benefit of the witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your microphone, and please mute yourself when you are not speaking. For interpretation for those on Zoom, you have the choice at the bottom of your screen of floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

All comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

Before we begin, the technical difficulties we experienced at the last meeting will have minimal repercussions on our agenda, which I wish to manage in the following way. First, the officials from the Department of Justice with us last week agreed to come back to complete their appearance in front of committee on Wednesday, February 8. They will be with us during the second hour of the meeting. Also, you may have realized from today's notice of meeting that we are able to welcome again all of our second panel from last Wednesday. They will appear today for the second hour of this meeting.

For the benefit of the witnesses and members, I have cue cards, so when you have 30 seconds remaining, I will raise this yellow card. When you are out of time, I will raise the red card. I just ask that you end it, so I don't have to interrupt your speech.

Finally, we will hear witnesses on our extradition study on Monday, February 13 for the first hour. The second hour will be drafting instructions for our analysts. On February 15, we will begin the study on the bail system with the Minister of Justice in the first hour. For the second hour, we will have officials with us for more questions.

Without further delay, let me welcome our witnesses today. We have Mr. Matthew Behrens and Rania Tfaily. From the World Sikh Organization of Canada by video conference, we have Balpreet Singh, legal counsel.

Each of you will have five minutes for your opening statements followed by questions from the rest of the members.

I will begin with you—

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

Mr. Chair, before we begin, can you confirm that the tests have been done with the witnesses and that the results were positive?

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin. They were carried out, and I've confirmed that they are effective and positive.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Mr. Behrens, five minutes go to you.

[Matthew Behrens, As an Individual]

Thank you.

My name is Matthew Behrens. I represent the group Women Who Choose to Live, which works with women who are criminalized and punished for trying to survive male violence. I've worked on extradition cases for over 20 years, largely with the families and those who have been victimized by a process that is fundamentally flawed and violates the Charter of Rights and Freedoms on many levels.

Today I'm very honoured to be here with Rania. We're here to talk about the human face of extradition and the consequences of this fundamentally flawed Extradition Act.

This act has been used as a bludgeon to batter abused women, as in the cases of M.M. and K.T. It has led to the potential for and actual torture of Canadian citizens, as in the Boily case. Mr. Boily was recently awarded $500,000 for the minister's complicity in his torture in an extradition to Mexico case. It's also been a back door to forcibly remove people who are in need of protection to states where they had fled from persecution.

I'm happy to address broader issues related to the case, but I'd specifically like to tell you the story of one of the most significant extradition cases in the last 20 years.

This is Michele Messina. She can't be here today because she took her life at the age of 58 in a Quebec prison in November 2019 after having spent nine years fighting extradition. Michele is not here because she lost her life in that prison. She took her life because she was so afraid of being extradited back to Georgia, where she knew she would not get a fair trial for the charges of rescuing her children from clear signs of abuse from a very abusive man.

In 2010 she rescued her three dual-citizen children from Georgia and brought them here for safety. All the children are now adults. Over a decade ago they were sleeping in an abandoned garage to escape their father's abuse. Now they've been orphaned, because Canada chose to decide that it would criminalize Michele in the same way the State of Georgia had as well.

Her initial extradition was quashed in the Superior Court of Quebec. On appeal, it was reinstated. Then we went up to the Supreme Court, where Michele lost in a 4:3 decision, which the dissenting judges actually said was Kafkaesque.

We initiated a campaign for reconsideration. There was a new government in 2015. Jody Wilson-Raybould actually brought in a reconsideration, but after seven months, she signed what turned out to be the death writ for Michele. The minister's reasons were infused with a complete lack of knowledge about the consequences and dynamics of violence against women. She asked questions in these reasons, such as, “Why didn't Michele report to the police?” How many times have survivors been asked that ridiculous question?

In the end, Wilson-Raybould said that, far from saving these children, what had happened was she had taken away the abusive father's rights to visit them. That was the conclusion of the justice minister. That tells us where the real fault lines are with respect to gender-based violence and the Extradition Act.

Justice Rosalie Abella wrote the dissenting opinion in that Supreme Court decision. She pointed out that “the defence of rescuing children to protect them from imminent harm does not exist in Georgia, the mother will not be able to raise the defence she would have been able to raise had she been prosecuted in Canada.”

This contradiction violates a cornerstone of extradition law, the double criminality requirement that the Supreme Court acknowledges is a process that ensures that Canada is “not embarrassed by an obligation to extradite a person who would not, according to its own standards, be guilty of acts deserving punishment.”

I think part of the problem we're facing here is that we are dealing with government departments, and especially the so-called international assistance group, which works on the extradition cases at the Department of Justice, that have failed to enter the 21st century when it comes to gender-based analysis. They were mandated to do so in 2010. In 2021 the supplementary mandate letters to the minister specifically spoke about something called “gender-based analysis plus”. Gender-based analysis plus would involve “critical consideration of the historical, social, and political contexts and the systems of power, privilege, discrimination and oppression that create inequities as well as applying a meaningful approach to address them.”

If that had been meaningfully applied in Michele's case, she might be here today to testify about extradition instead of being in a grave that her children can only visit.

It's critical, I think, when we're looking at extradition that we recognize what gender-based analysis plus is about because, as you're probably familiar with, there's that wonderful quote from Anatole France, where he said, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Behrens.

Unfortunately, your time has run out. You are going to have to flesh it out in the questions that may arise.

[Matthew Behrens]

I'm sorry. Are my five minutes up?

[The Chair, Liberal, Randeep Sarai]

Yes.

Next we will go to Ms. Tfaily.

You have five minutes.

[Rania Tfaily, As an Individual]

Thank you for inviting me to appear as a witness regarding your study of extradition law reform. As you may know, my spouse, Hassan Diab, was extradited to France in 2014. I have brief remarks based on our experiences.

While there is concern in our legal system about the issue of wrongful convictions, in my experience there is no such concern about wrongful extraditions. The current law is premised on the assumption that the extradited person would receive a fair trial in the requesting state and that extradition is not a trial. However, extradition to a foreign country is not a mere inconvenience. Rather, it is generally a horrific experience.

In Hassan's case he was extradited to France, where he spent over three years without trial confined to a small cell in which he did not see or interact with anyone for 20 to 22 hours per day. He rarely received visitors as we would only travel a couple of times per year given the cost. As a result, he rarely saw his children and family. He also faced a legal system that he was not familiar with, while at the same time, he was isolated, deprived of meaningful social interactions and in a precarious mental state.

In extradition the presumption of innocence is turned upside down. First, the record of the case, which is a document submitted by the requesting state, is held to be presumptively reliable and the burden is on the person sought to demonstrate that the evidence is manifestly unreliable. The threshold is so extremely high that it is unattainable no matter how flimsy the evidence is.

Second, the person sought is not entitled to disclosure of the evidence.

Third, the person sought has no automatic right to call evidence. In Hassan's case the key evidence, which the Crown attorneys referred to as the smoking gun, is handwriting analysis based on just five words written in block letters. Two French handwriting analysis experts had compared what they thought to be Hassan's handwriting from the late 1980s and 1990s with five words on the hotel card written by the suspect in 1980. Neither of the French handwriting analysis experts had to testify or be cross-examined. In fact, the law does not allow the defence to cross-examine them. Rather, their opinions, even though handwriting analysis is commonly believed to be junk science, was considered presumptively reliable. The burden was on Hassan to prove that these two reports were utter nonsense and that they were based on many documents that were not even written by Hassan but by someone else.

It is a fundamental principle of justice that the state should bear the burden of showing that its evidence is reliable. I find that shifting the burden of proof and limiting the ability of the person sought to defend himself or herself and denying them disclosure of evidence is a travesty of justice.

The current extradition law is justified by the need for expediency. However, expediency should not trump fairness. In addition, extraditions in Canada are not expeditious at all. They last years.

The other issue that is often used to defend the current extradition law is the claim of reciprocity and the need to honour Canada's international obligations. However, having an extradition law that is more just and fairer does not undermine Canada's international obligations and the rule of law. While some of those sought for extradition are guilty, the same can be said for those charged with a crime in Canada. However, this does not prevent us in Canada from demanding reliable evidence before the accused stands trial in Canada. We should have the same care and concern regarding extradition so that innocent people don't suffer needlessly.

In reforming the extradition law, I believe that four issues are critical. The evidence submitted by the requesting state should not be presumed reliable. There should be full disclosure of all relevant evidence. The person sought should be allowed—as of right—to call evidence. Extradition judges should be permitted to consider issues of fairness.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Tfaily. You had a few more seconds, but you were on time.

Next, we will go to Balpreet Singh from the World Sikh Organization of Canada.

You have five minutes.

[Balpreet Singh, Legal Counsel, World Sikh Organization of Canada]

Thank you.

The issue we're talking about today touches on both our mandates, which are to advocate on behalf of Canadian Sikhs as well as to protect human rights for all individuals.

In short, Canada's extradition process is deeply flawed and needs urgent reform.

At the outset, I'd like to say that our organization supports and endorses the Halifax colloquium's proposals for law reform. Specifically, it's our position that human rights considerations must be at the core during extradition processes. While charter protections apply only to Canada and not to foreign states, where there's a causal connection between the abuse of human rights of an accused in a foreign country and Canada’s decision to extradite, charter protections must be in force.

While in the current process human rights are contemplated, those considerations are tempered by considerations of reasonableness and deference by the court to the minister in matters of foreign affairs and international co-operation. This is based on the court's assumption that Canada does not enter extradition treaties with countries not worthy of its trust. For this reason, the Minister of Justice's decision to extradite is largely a political one. We believe that leaves the extradition process open to misuse and abuse.

Specifically, with regard to the concerns of the Sikh community, Canada’s extradition treaty with India is highly problematic. That treaty was entered into in 1987. According to Joe Clark, who was then foreign affairs minister, the key consideration between the negotiating countries was India's desire to extradite Canada-based Sikh “extremists”.

What makes this treaty especially problematic and surprising is that while Canada has [Technical difficulty—Editor].

[The Chair, Liberal, Randeep Sarai]

Mr. Singh, could you go back 30 seconds? There was a technical issue with your sound. You probably didn't get interpreted either.

I'll give you extra time for the 30 seconds that might have been lost.

[Balpreet Singh]

Do you know whereabouts that was? What was the last thing that was heard?

[The Chair, Liberal, Randeep Sarai]

You had started with the 1987 extradition treaty with Joe Clark.

[Balpreet Singh]

Got it.

Foreign affairs minister Joe Clark had admitted at the time that the key negotiating issue behind the treaty was the Indian desire to extradite Sikh “extremists”. What makes this treaty particularly problematic and surprising is that Canada has ratified and is party to the UN convention against torture as well as the International Covenant on Civil and Political Rights, both of which prohibit removal to the danger of torture.

India hasn't ratified the convention against torture, and has long neglected its obligations and reporting duties under the ICCPR. India is not bound by the convention against torture's prohibitions against torture and is not subject to monitoring and review by the UN Committee against Torture. As a result, according to the Asian Human Rights Commission, “Torture is practiced as a routine and accepted as a means for investigation. Most police officers and other law enforcement officers consider torture as an essential investigative tool”.

There is a lot of evidence to suggest that torture is routine and very common in India. It is common knowledge among Sikhs that Sikh political activists taken into custody in India are brutally tortured as a matter of routine.

Given the context within which the India-Canada treaty was negotiated, specifically with a desire to target members of the Sikh community, and the fact that during almost every bilateral meeting between Canada and India for well over a decade Indian officials have made unsubstantiated allegations of extremist activity in the Canadian Sikh community, there is a real fear that Sikhs in Canada may be extradited to India and face false charges and torture. On several occasions over the past few years, India has in fact presented Canada with lists of Sikhs in Canada it wants to have extradited.

What India deems as extremism is in fact Sikh advocacy on various issues India finds objectionable. All are protected under Canada's right to freedom of speech, but India has nevertheless repeatedly demanded that Canada crack down on Sikh activists in the country.

Specifically now, in light of the Indo-Pacific strategy launched by Canada, the India high commissioner has said that, in order to improve ties, Canada must crack down on “segments of the Sikh community in Canada [that] are offering support and money to secessionists who want to separate Punjab from India”. There is no evidence to substantiate that allegation, but we are afraid that Canada may be pressured by India to extradite Sikh activists in return for closer ties with the country.

It wouldn't be the first time that Canada buckled to Indian political pressure. In the past, where visas to members of Indian security forces have been denied due to suspected involvement in human rights violations, Indian protests have in fact resulted in those visas being issued. It's also felt that, in the aftermath of the Prime Minister's 2018 trip to India, the term “Sikh (Khalistani) extremism” was added to the public safety report on terror at the insistence of the Indian government.

It's our firm position that if extradition is a political consideration that does not have human rights as a central consideration, that's not right. Diplomatic assurances are also not a solution, because they're unenforceable. Where in fact there is a violation, both countries have very little incentive to bring that breach to light.

We submit that Canada should not have an extradition treaty with a country that has human rights abuses or that has failed to ratify human rights treaties. As such, the India-Canada extradition treaty does not meet the necessary standards.

That is my submission.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Singh.

We'll now go to our first round of questions. We'll begin with Mr. Brock for six minutes.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I think it's me.

[The Chair, Liberal, Randeep Sarai]

I'm sorry.

Go ahead, Mr. Caputo

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

I wish I was nearly as handsome as Mr. Brock, but you'll have to put up with me, Mr. Chair.

[An hon. member]

You have a better hairline.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Naqvi, no jokes about hairlines, especially from you.

Thank you very much.

Mr. Behrens, you didn't finish your time speaking. I'm prepared to cede the floor to you if you want to finish up your comments, please.

[Matthew Behrens]

That's wonderful of you. Thank you.

Where I left off was talking about the gender-based analysis plus and why we need that.

I would like the committee to consider, in addition to the Halifax proposals, which you've either heard about or will be hearing about tonight with Professor Currie, looking at the creation of a body that is independent of the international assistance group.

Right now, a foreign jurisdiction makes a request to the Minister of Justice. It goes to the international assistance group, which makes a recommendation. Then we go to a judicial review and there are final submissions, which go back to the people who initiated the process. We need some kind of independent oversight in there.

As part of that independent oversight, we need to have a real, transparent, intelligible and justificatory analysis, especially in cases that involve women and children who are fleeing violence and for racialized individuals who would clearly face discrimination if they were sent back, even to a jurisdiction like the United States. George Floyd, Breonna Taylor, Tyre Nichols—that's all you need to know.

The problem is that in the Extradition Act itself—and this has been confirmed by the Supreme Court—ultimately the surrender decision is not a legal one; it's a political one. Basically, the Minister of Justice is tasked with deciding whether or not he's going to piss off the United States or piss off the Government of France if they do not receive the requested individual.

That's the problem, where they have this massive discretionary authority to essentially say that someone's charter rights are secondary to their concerns about state-to-state relations. That, I think, is something we really need to look at.

The other thing that's a real concern is that often, when we do present evidence to the Minister of Justice about the risk of torture or the risk of other human rights abuses, they come back at us and say that, if going they're to Chicago, which has one of the highest rates of police torture of Black detainees, there's always a remedy. They can make a complaint to Amnesty International or go to a federal court.

However, redress for harm done is not protection of fundamental human rights. It's an after-the-fact remedy. You should be entitled to human rights protection in the first instance. It shouldn't be payment for damages after the harm has been inflicted.

The other thing I just wanted to share—and I do appreciate not only your beautiful hairline, but also that you're sharing your time with me—is that in the M.M. case, Justice Abella wrote, “At the end of the day, there is little demonstrable harm to the integrity of our extradition process in finding it to be unjust or oppressive to extradite the mother of young children she rescued, at their request, from their abusive father.” She recognized that at the Supreme Court, as did two other justices. The fact that it was split right down the middle by gender is very interesting as well.

If I do have about 30 seconds, one other thing I think really needs to be on the agenda here is the way in which the Extradition Act intersects with the Immigration and Refugee Protection Act. We have seen in a number of instances, especially when it comes to Roma refugees coming from European countries such as Hungary or the Czech Republic, whereby after years of being here as protected Roma persons, suddenly there is an extradition request. Based on the low standards, they then face losing their refugee protection.

We have a number of cases where the Minister of Justice has gone to the Minister of Immigration and asked for a new opinion about the risk, allegedly, that may befall that person if they are sent back to a state where they fled from persecution in the first place.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

Ms. Tfaily, you brought up disclosure. This is really a cornerstone of Canadian criminal law.

My question is this: Is somebody who is going to be extradited entitled to the disclosure that is in the possession of the Canadian government?

[Rania Tfaily]

This issue has been debated in Hassan's case. The Department of Justice currently says that, no, they are not entitled to disclosure of the evidence that is with Canada. For example, there was a fingerprint analysis that was done in Hassan's case, comparing his fingerprints to fingerprints that were found on documents that were handled by the suspect, and these fingerprints were negative. However, Hassan was not told about that—nor was his lawyer—or about the extradition charge during the committal phase of the extradition hearing. The rationale of the Department of Justice is that Hassan is not entitled to know such evidence because the extradition law allows this.