Evidence of meeting #47 for Justice and Human Rights in the 44th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was extradition.
A recording is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Was that fingerprint analysis possessed by the Department of Justice at the time?
As an Individual
Yes, it was done in Canada. It was the Department of Justice that asked France to send the material that it had so they could do the fingerprints in Canada. The RCMP did the fingerprints here. Yes, the Department of Justice had this evidence.
Conservative
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Caputo.
Next we'll go to Ms. Dhillon for six minutes.
February 6th, 2023 / 4:05 p.m.
Liberal
Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC
Thank you, Mr. Chair.
Thank you to our witnesses for being here.
I would like to maybe ask a general question. I'll start with Mr. Behrens, Ms. Tfaily and then Mr. Singh.
Can you please comment on the experience of racialized Canadians with the Extradition Act?
As an Individual
I would be happy to do that. I will give you an example of one Canadian citizen who was sought in a Chicago cold case in 1969. It's called the Freeman case. This is an African American man who came to Canada because his life was at great risk. He lived here peaceably for 35 years. The extradition request was based on the officer who was allegedly injured in the incident being the investigating officer.
When the so-called record of the case was put before the Ontario superior court—I'm going to quote the judge here—it was so full of holes and inaccuracies. There was one account by this police officer in which he said there were seven shots fired. There was another account in the same record of the case, which is presumed to be reliable, of 13 shots. The judge said that, factually, there was a significant difference between the two accounts. You don't have to be a mathematician to know that seven is different from 13. Twelve is about 13 or 14 is about 13, but not seven. What it meant was that the ultimate result may have been another matter quite altogether. Suppose both were included in the record of the case. What's the extradition judge going to do about it? It's very interesting.
It's very interesting that they upheld that extradition and that Mr. Freeman spent years in custody here in Canada. In the end, he was able to settle for an agreement and did 30 days in the Cook County Jail, but he certainly had fear for his life because anyone who has studied Chicago knows that the Chicago police have a very well-documented record of torture of African Americans.
As an Individual
Thank you.
There is this assumption that the justice systems in all countries that have extradition treaties with Canada are fair and are fair for all of the people, regardless of their gender, race, ethnicity and so on. However, this is often not the case. If we look at Muslims in particular, we know that in many countries they are treated unfairly under the law and that there are certain rules of evidence that are eliminated when we have Muslims who are accused. This is the case in France. Human Rights Watch, and there are other organizations, have documented France's use of torture or France's use of secret intelligence that cannot be tested in court. That is rejected in Canada, for example. It is used in order to convict people. I have been working on this case for so much of my life—I think I've spent maybe all of my thirties on Hassan's case—and when talking to people, I find that it is hard to convince them that a country like France is unfair to some segments of people.
I mean, I don't know why. If we look at the U.S., we see that there is racial discrimination. If we look at the history of Canada, we see that there has been discrimination against different people—for example, francophones and indigenous people. This assumption that the justice system is fair to everyone—I don't think it is based on solid evidence.
Liberal
Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC
Thank you, Ms. Tfaily.
Mr. Singh, I think our time is going to run out, so please take the rest of it to give your statement. Thank you.
Legal Counsel, World Sikh Organization of Canada
I will just say that it's rather disturbing for my community when India-Canada relations are sometimes dominated by the question of what Sikhs in Canada are doing or not doing. The potential of Sikhs being extradited to a country that routinely tortures, based on a desire to improve ties, that's very scary for our community. That's something that the current system allows. It really shouldn't.
Liberal
Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC
What would you like to see improved in the current system?
Legal Counsel, World Sikh Organization of Canada
I think overall, the Halifax colloquium's submissions on reform to the system are very persuasive. I would direct you to them. I think your next witnesses in further sessions will be talking more about that. Specifically, human rights has to be at the core of things. Countries that have not signed onto human rights treaties or that have records of human rights abuses, Canada should not be extraditing people to those countries.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Ms. Dhillon.
Next, we'll go over to Mr. Fortin for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Thank you to the three witnesses with us this morning.
I will begin with Mr. Behrens, if I may.
There is one thing I understand from all the testimony. Clearly, we are nearly all in agreement that Canada must not—
Liberal
The Chair Liberal Randeep Sarai
Mr. Fortin, could you just pause. Apparently there is an interpretation issue.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Do you hear me now? Okay.
Mr. Chair, I assume I can resume speaking.
Thank you to the witnesses for being here today. As I said, Mr. Behrens, I would like to begin with you.
Your proposal that Canada must not have treaties with countries that engage in torture or that do not uphold human rights seems self-evident. I do not wish to speak for my colleagues, but I think we pretty much all agree on that. What I am interested in is the proposals.
Under the current system, Canada does not in principle extradite anyone to a country that does not uphold human rights. I think that is already in place. Have there been cases in which persons were extradited nonetheless, as a result of legal errors, for instance? That is possible. You can surely attest to that.
What do you think needs to be changed in the current process or in the legislation to ensure that this does not happen again?
As an Individual
We recently had a Federal Court case in which the judge found that the extradition gave rise to a substantial risk of torture that had not been assessed by the minister, despite the information that had been put forward to show clear risk of torture. This was with the Government of Mexico.
According to Suresh, the Suresh decision, his extradition was therefore contrary to section 7 of the charter unless there were countervailing exceptional circumstances. Again, I think in addition to the Halifax proposals, which you will be hearing about this evening, we have to look at this law up and down in terms of how it complies with international fair trial standards. Right now, there is so much discretion with respect to the minister's role here and whether or not he orders a surrender it's just not happening. As the Supreme Court has pointed out, ultimately, the minister's concerned about whether or not he's going to antagonize another nation.
We saw this in the Arar inquiry, which was also looking at Canada's complicity in torture. At that time, we learned that the Department of External Affairs kept its human rights records on other countries secret for the specific purpose of protecting Canadian commercial transactions abroad. We have to step back from this and ask, ultimately, are we about upholding charter rights? Are we about compliance with the United Nations Convention against Torture, or are we not?
We see this consistently in the immigration system, where the risk of torture is routinely dismissed by immigration officers in attempts to engage in deportations. We see the same thing with respect to extradition.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
If I understand correctly, you propose that the justice minister should no longer have any discretionary power and that we should ultimately rely on the courts to determine whether a person should be extradited.
Is that correct?
As an Individual
It would seem to me that a court would be far more independent than the individual who has decided to proceed with the extradition. The minister has already made his position clear by proceeding with the extradition, so he has a bias. He's decided this is a case that needs to be pursued. He fights it in court, even though the court process itself is completely neutered by the Extradition Act. We need to beef up the role of the judiciary in this process, because that's the only oversight mechanism that will ensure the sought individual's rights are going to be upheld and respected.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Behrens.
Ms. Tfaily, do you also think that it should henceforth be up to the courts and not the minister?
As an Individual
Yes, I agree, because in our experiences, as well, in other extradition cases, generally speaking the Attorney General is not going to take a difficult decision and have a conflict with other countries. However, if judges were to take this decision, we feel the Attorney General can justify this and say, “Canada applied the rule of law. This is what our judiciary has ruled, and we would abide by this.”
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Ms. Tfaily.
Mr. Singh, can you confirm that this is also your position and that it should be up to the courts to decide whether an individual is extradited, and that the minister should have no say after having made the initial request?
Legal Counsel, World Sikh Organization of Canada
That makes a lot of sense. I would suggest that the judiciary needs to have a greater role. There needs to be the review of evidence. The presumption of innocence has to be a part of it. If the minister is to be involved, then the standard of review of the minister's decision has to be on a higher standard. Right now, the lowest standard is used to review the minister's decision, and that's unacceptable.
I'll just go back to your opening point. It's actually not taken for granted that for countries that haven't signed, for example, the convention against torture, we shouldn't be deporting there. We are in fact doing that. For example, the Badesha case was all about sending someone to India, which has not ratified that convention. That's shocking to our conscience. That really shouldn't be happening.