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.
4:15 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
Next we'll go to Mr. Garrison for six minutes.
February 6th, 2023 / 4:20 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair.
Thank you to all three witnesses for being with us today.
I'm going to ask one question of each of you if I can get through my six minutes.
Mr. Behrens, in the beginning when you talked about the gender-based problems in the extradition laws, one thing that struck me was the concept of double criminality, and the fact that we proceed on the very narrow grounds that something would be illegal in both countries without considering that the way gender operates in those countries would be quite different, and without considering, I think, what the B.C. Court of Appeal called an alignment test—the possible consequences of this double criminality, and whether they are quite different in the two countries.
Can you say a little bit more about how gender impacts that issue of double criminality? You mentioned child abduction for safety, for instance.
4:20 p.m.
As an Individual
In the case of M.M., and also in the case of K.T., the ability to actually present evidence of abuse was dismissed as irrelevant to the proceedings. The judge doesn't want to hear about that, because the judge's hands are tied with respect to how the Extradition Act.... They say, “This is not a trial. I'm just trying to look at whether or not there's a prima facie case against you.”
In the case of M.M., we went to leading experts in Georgia—lawyers, university clinics—and got expert opinions to show that, if M.M. had been charged here in Canada, she would have had the right to a full defence. She did not have that right in Georgia, and under the Extradition Act you cannot proceed if that is the case. Unfortunately, the minister just disagreed and went ahead. Any good judge looking at that would have said that cannot stand.
4:20 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you.
Ms. Tfaily, on the question of whether someone being surrendered will be tried within a reasonable time, certainly the poster of bad surrender is your husband's case—three years without a trial. Do you see any way that Canada could refuse a surrender under the current circumstances if there's not an assurance already to go to trial?
4:20 p.m.
As an Individual
I think that the threshold for assurance is very low. The state would only have to say that it is going to take the case to trial.
In Hassan's case, his lawyer argued in front of the court of appeal that France was not ready for trial and that it was still investigating the case. The Minister of Justice said that France had charged him and was ready for trial. Hassan went there and it was for an investigation. The investigation took three years and two months, and then he was released because the two investigative judges found that the evidence supported his innocence rather than his guilt. That's why he returned to Canada.
Under the current system, the requesting state can say that it's ready for trial. That's all it takes and the Minister of Justice would believe that.
4:20 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Can you tell us briefly what's happening with your husband's case now in France?
4:20 p.m.
As an Individual
In France, there has been this back and forth between different investigative judges. Hassan was ordered to be released on bail seven different times, I think, but the court of appeal would quash it every time even though different judges would order his release. For his release from detention and return to Canada, the court of appeal kept postponing the decision over two years. Eventually, a new panel of judges overturned the previous investigative judge's decision. Now France plans to proceed with a trial in April.
4:20 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
There is a risk that there might be a further request for extradition.
4:20 p.m.
As an Individual
Yes.
I do want to mention, if I can have 30 seconds, that Hassan was extradited on the basis of handwriting. It's not just because I'm his spouse, but I'm still shocked that this happened based on five words. Imagine that in this age we would say we can identify a person based on the handwriting analysis of five words.
We had about five experts from different countries who all said that this is utter nonsense. In France, two more experts were hired and they said they agreed with the defence experts in Canada that this was utter nonsense. Here we are, after 15 years, still in this.
Thank you.
4:25 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Mr. Singh, I'd like to talk again about the treaties.
What you've highlighted in your testimony is that we not only have a very dated and faulty extradition law, but we don't have any process for reviewing the extradition treaties. Many of them are also quite old.
Do you think that there should be some process for reviewing on a periodic basis the extradition treaties we have? In that process, we could also check for the convention on torture and those kinds of things.
4:25 p.m.
Legal Counsel, World Sikh Organization of Canada
Absolutely, I would suggest that there needs to be a regular review of our treaties. We need to make sure that the countries we have these treaties with are living up to their obligations under the treaties.
Like I said, India is a signatory to but has not ratified the torture convention. Even with the ICCPR, which it has ratified, it has not been meeting its obligations and has not been reporting for, I think, 20 years.
Even though it is [Technical difficulty—Editor] not living up to its obligation [Technical difficulty—Editor] a review of our treaties is very important, as is actually seeing whether they're living up to their human rights obligations.
4:25 p.m.
Liberal
The Chair Liberal Randeep Sarai
I'm sorry, Mr. Garrison. You're out of time.
Before I go to the next round, I wanted to use my liberty as chair to ask a couple questions.
Ms. Tfaily, I think Mr. Garrison asked you a similar question, but can you tell us how long it took for the trial of your husband to actually commence? Do you know of other similar cases that might have taken a long time that were extradited from Canada?
4:25 p.m.
As an Individual
In Hassan's case, he was extradited in November 2014. He was in prison in France until January 2018. During all this period, the investigative judge was still investigating the case. In January 2018, he said that he was not going to order a trial and Hassan was released. It took three years and two months.
I didn't review other cases regarding how long they stayed.
I wanted to mention that in Hassan's case, the case started in 2007 by a leak to a journalist, so he was under surveillance by the RCMP for a year. After a year, France requested his extradition. This is from 2008 until 2014, which was his extradition hearing. Then from 2014 to 2018, he was in prison. From 2018 until now have been the appeals in France.
This is not over, so it's going to take 20 years or so of one's life and the lives of children and other family members.
4:25 p.m.
Liberal
The Chair Liberal Randeep Sarai
It's going against the principles of fair and quick access to justice.
Mr. Singh, in the last 10 years—if you can recall—how many extraditions have happened to India, and if so, did they go up against any court challenges or have they all been quashed? You had a lot of concern about the fact of India's extradition requests. I'm just trying to understand how many might have happened in the last 10 years.
4:25 p.m.
Legal Counsel, World Sikh Organization of Canada
The main one, of course, is the Badesha and Sidhu one. That case was an interesting case in the sense that it was an honour killing. The accusations and, basically, the proof that was being submitted were quite convincing. Sometimes I say that bad facts make bad law. I would suggest that the emotional considerations in that case allowed for the extradition to India, but the fact is that any extradition to India should not be happening, based on their refusal to abide by human rights norms. Second, I would suggest that, where prosecution could take place here in Canada, that should be our first choice as opposed to sending people somewhere else to have that done.
What's also quite concerning is the fact that India regularly and publicly talks about lists that it's submitting to Canada of Sikh activists that it wants to be extradited, and that's definitely a concern. It's not that any of them have been extradited. However, the possibility that this could happen, and that Canada has the channels open to have that happen, is very concerning.
4:25 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Singh.
I'll go to our next round of questions.
We'll begin with Mr. Van Popta for five minutes.
4:30 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you, Mr. Chair.
Thank you to the witnesses for being here.
Mr. Singh, I will start with you. Thank you for your evidence.
Your website expresses concern that, in India, state criticism and dissent are labelled extremist and antinational, and that Indian security and intelligence agencies have been cracking down on those exercising what, quite frankly, here in Canada is quite lawful.
Is that a serious concern? Doesn't the double criminality test requirement prevent us from extraditing people from Canada to India on those types of charges?
4:30 p.m.
Legal Counsel, World Sikh Organization of Canada
What we're seeing are concocted charges. India is an outlier in the fact that putting up a poster or graffiti outside of your own home, in fact, is now being cracked down on. For example, people have been arrested for writing “Khalistan” on the walls of their own homes. Having said that, these individuals aren't necessarily charged with [Technical difficulty—Editor]. There are concocted charges—“support of terrorism” or “funding of terrorism”—and that's what we're seeing here. Activists who are talking about Khalistan or human rights abuses in India are being accused of funding terrorism.
The fact is that Canada's system does not allow for an in-depth examination of that evidence. Often just the accusation itself and the superficial summary of that so-called evidence would be enough to allow for an extradition if the minister wanted to do so. Given that India is saying that closer ties are dependent on Canada's cracking down on Sikh activists, it makes us very nervous.
The last time Canada granted visas to human rights abusers—Punjab police officers who were accused of human rights abuses and were long-denied visas—was right before Prime Minister Trudeau's 2018 trip to India. Four of them were granted visas at that time. That was clearly a political decision. What scares us is that a political decision could happen in the future to extradite Sikh activists, and there would be nothing we could do about it.
4:30 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you.
I believe you said that India did not ratify the UN treaty against torture. If it had, would that make a difference to you?
4:30 p.m.
Legal Counsel, World Sikh Organization of Canada
Not just ratifying.... For example, it has ratified the International Covenant on Civil and Political Rights. The fact is that for over 20 years it has neglected its obligations and reporting requirements under the ICCPR, so just signing it is not enough. There has to be a demonstrable adherence to those norms. What we're talking about is routine torture.
I have an article from December 2021 by a Dr. N.C. Asthana, former director general of police from India, who writes that “torture and fake encounters came to be regarded as...in 'national interest', [and] rewarded with medals” where people are accused of being separatists.
This is a serious problem, and just ratifying a treat is not enough. You have to demonstrate that you're following those obligations.
4:30 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Do you see any way at all for Canada to have an extradition treaty with India?
4:30 p.m.
Legal Counsel, World Sikh Organization of Canada
Of course. Any country that demonstrates that it is adhering to human rights norms should be a country that we can consider entering into these things with.
Now, of course, what we are submitting is not just about India. We're talking about the whole extradition process, which needs serious reforms. There needs to be, once again, a presumption of innocence, greater analysis of the evidence and the removal of political considerations. The standard of review needs to be higher. It's not just the lowest standard of review.
Is it possible? Yes, but the path to get there would be incredibly long, especially for India.
4:30 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Just so I'm clear, a country like India—and we could talk hypothetically about other countries as well—would, as a bare minimum, be required to have adopted the United Nations declaration against torture or some other similar international agreement, but that is not enough. It's a necessary condition but not sufficient for us to have an extradition relationship with this country. Is that your evidence?
4:30 p.m.
Legal Counsel, World Sikh Organization of Canada
That's right. I would suggest that meeting the obligations underneath the treaty, for example, reporting obligations and, where you have the convention against torture, having the Committee against Torture doing the reviews....
Unfortunately, we feel that, even if there were a ratification, there would be a bar on the UN Committee against Torture doing the reviews. Amnesty International is barred from operating in India, because they don't want any review of their human rights record. All of this is very disturbing.