Justice Committee on Feb. 6th, 2023

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

Thank you, Mr. Chair.

Thank you to the witnesses with us.

Mr. Currie, your report on the Halifax proposals appears to be exhaustive and we will certainly draw on it.

I would like to hear your thoughts on how we should proceed. In extradition cases, for instance, we focus on determining whether there is a reasonable possibility that the person subject to the extradition request will be found guilty of the crimes of which they are accused in another country.

That is not clear to me. From what I understand, at this time, it is assumed that the report provided is reliable.

In your opinion, should the individual be tried here, in Canada, to be sure of their guilt before they are extradited, or at least to ensure that it is beyond a reasonable doubt that they will be found guilty?

[Robert J. Currie]

Thank you for the question. We do deal with that in the report.

There are some cases in which that's an option, where Canada could prosecute but also the foreign state could prosecute. It's not an option in every case simply by way of the international law of jurisdiction and the way Canada conducts criminal prosecutions, but there are some cases—and I'll specifically mention those dealing with Canadian citizens—where, if there's a cross-border aspect to the case, it may be that Canada has the option of prosecuting as well as the foreign state.

What we're proposing is not that it be an automatic prosecution in Canada in such cases, although that's not a bad idea. What we're proposing is that it would be a presumption. It would be presumed that Canadians would be prosecuted here in Canada if that was a legal option, unless the government can show that it would be the interest of justice for that person to be prosecuted in the foreign state. The Government of the United Kingdom brought in a rule of this sort about a decade ago. It's called the forum bar rule. It dealt with cases that caused a lot of public disturbance in the U.K., where people were threatened to be extradited to the U.S. for activities that were mostly related to the United Kingdom.

We think a rule that operated similarly could be brought in here. It would fully flesh out the rights of Canadian citizens under section 6 of the Charter of Rights and Freedoms.

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

In that case, however, that means that there would be a trial here, in Canada, before a Canadian court, to determine the guilt of an individual accused of breaking the law in a foreign country, whose laws and offences are not necessarily the same as in Canada. The degree of evidence could be different.

Many situations come to mind in which it could be complicated to hold a trial in Canada before a court or a judge who is completely or quite unfamiliar with the rules that apply in the other country.

Does such a proposal not pose too many procedural obstacles?

[Robert J. Currie]

Okay. I think I understand your question a little better.

In principle, extradition is an important tool and a necessary tool in order for Canada to meet its international obligations and in order to ensure that people who break the law face justice. There may be more situations in which it's appropriate to hold trials in Canada than is currently the case, but there are always going to be lots of cases where it's appropriate to extradite the individual as well.

In making the Halifax proposals, we were sensitive to the issue that the extradition hearing in Canada is not a substitute for a trial in the foreign country. We fully anticipate there will always be extradition. There will always be people sent for trial in foreign countries. What we would like to see is a fairer way of making the determinations about whether or not to extradite and, yes, it may involve more consideration of what the foreign state's criminal law system looks like, but that evidence is available out there and it's available to be put before the court.

When you combine that with closer attention by the government to the state of affairs in the foreign state, both generally and with respect to particular cases, I think we could get an extradition process that works just as well, just as effectively and smoothly, but works in a more fair manner and prevents miscarriages of justice, such as what is happening to Dr. Diab.

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

Thank you, Mr. Currie.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Next, we have Mr. Garrison for five minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I want to thank the witnesses not only for their testimony today—each of them, I know, has been a powerful advocate in extradition cases in other situations—but also for bringing together the Halifax colloquium, which has presented this committee with a very comprehensive and, I must say, a very persuasive report about the need for action. My sincere thanks go to the witnesses today.

I want to ask about a couple of specific things.

One of those is the about the 2SLGBTQI+ community, in particular the possible fate of transgender Canadians who might be facing extradition processes. My understanding is that there's no requirement in the current extradition law that the safety of those persons be considered in the surrendered decision.

I wonder if any of the three might be able to comment on that.

[Alex Neve]

Go ahead, Joanna.

[Dr. Joanna Harrington]

Yes, I can comment to say that I think this is where we feel that there's a reason for a strong human rights approach to extradition. All sorts of human rights bases need to be considered with respect to a surrender decision.

There is the past example in Canada of the Hurley case, where the Minister of Foreign Affairs and the Minister of Justice did actually discuss what conditions should be placed on the surrender to a country where there was a concern of systemic discrimination against, in that case, a gay man.

I think the continued use of conditional extradition, which we are seeing more often, does require this consideration. It's not just a “yes or no, shall we surrender?”, but surrender on conditions to address the risk to the individual. There is some past practice on that. Of course, if the concern in the other country is of such a high risk, then I think there's a situation where conditions won't address that, and that's an example where one should refuse extradition.

Over to you, Alex.

[Alex Neve]

I will build on that by saying that I think your concern is well placed.

I think, as Professor Harrington is saying, it's reflective of a broader weakness about ensuring there are strong human rights protections and safeguards. I think what you're highlighting—the concern about how transgender individuals would be, faced with an extradition context—is a very serious and very real example of where those concerns could arise.

We do need something more reliable. We do need to see, for instance, the whole range of Canada's international human rights obligations enshrined in the Extradition Act and, as the Halifax proposal suggests, perhaps shifting the responsibility for making those decisions out of the minister's hands and have that be part of the judicial process, where we can have more assurance about the right decisions being made.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

That's really my second question. The report talks about shifting some things from the surrender decision to the committal process.

Just so I understand what we're really saying if we do that, that would be giving more responsibility to the extradition judge to make decisions on things that are essentially legal or human rights considerations and, if you made that transfer, leaving the minister with more solely political considerations and perhaps follow-up considerations.

[Alex Neve]

I think that's exactly right. International human rights concerns need to be taken very seriously and not be just part of a political discretionary process, which is why we feel those need to be with a judge.

Professor Currie may want to build on that as well.

[Robert J. Currie]

Yes, that would be the heart of my comment as well.

Human rights questions, to my mind, are not political questions. They're legal questions, because rights are legally cognizable under law. They are meant to be affirmed, recognized and protected under Canadian law and under international law. Canada has obligations in both those regards.

Fundamentally, human rights-oriented issues...and we're really talking about the criminal process type of issues such as incarceration, such as facing double jeopardy and so on. These are, fundamentally, legal questions that should be answered by the courts, which are uniquely empowered and able to do so. Frankly, in our adversarial decision-making system, both the parties—the individual sought and their counsel, and the government—are able to put forward evidence upon which those decisions can be made, so I think the courts are just a better place for many of those questions.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Chair, you can cut me off there.

Thank you.

[The Chair, Liberal, Randeep Sarai]

I want to thank all of the witnesses.

Unfortunately, we're not going to get another round, but I want to thank you for your time, and thank you, once again, for coming back despite our technical difficulties last time. Your testimony today has been very informative, and I look forward to reading some of your submissions as well.

We have a bit of committee business that we'll go to right away. I want to remind everyone that witness lists for our next study on Canada's bail system should be submitted by end of day Friday at the latest. Every party should submit its lists.

Lastly, you've been sent the draft budget for our request for travel. It's almost identical to the last one, barring a few dollars that might be different due to timing. We have a timeline deadline to resubmit, which I believe is tomorrow.

I can see Mr. Garrison's extreme pleasure with this study, so we'll make a note of that. I'm kidding.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Seriously, I'd like it noted that I do oppose the expenditure.

[The Chair, Liberal, Randeep Sarai]

Duly noted.

Are we okay with resubmitting this for the next cycle?

[Some hon. members]

Agreed.

[The Chair, Liberal, Randeep Sarai]

Thank you.

The meeting is adjourned.