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
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Van Popta.
Next we'll go to Mr. Naqvi for five minutes.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
Thank you very much, Mr. Chair.
I'm going to be directing some of my questions to Ms. Tfaily.
In light of full disclosure, I just want to let everybody that I know Ms. Tfaily personally and that our children have played together quite often in the past. I know the family and their circumstances quite well.
Thank you for being here. I know that this is a very difficult topic for you because of what you have lived through and continue to live through due to Mr. Diab's case. I was particularly interested in the four recommendations you made at the end of your presentation. I felt that you may have run out of time. You were going through those four recommendations a little quickly.
Do you want to take some time to talk about those four recommendations, Ms. Tfaily, and explain to us why you feel they're important and why this committee should consider those recommendations in their report?
As an Individual
Yes.
The first recommendation was that the requesting state's evidence should not be presumed to be reliable. With the current system, all the requesting state has to do is a summary of the evidence. They don't have to disclose the evidence. In Hassan's case, they didn't even have to provide the handwriting analysis report. They only had to say that French expert X had come to this conclusion. That is presumed reliable. This shifts the burden onto the person sought to try to rebut it.
We had to have handwriting experts from different countries. We hired ones who worked for the FBI and the RCMP, and some who were Swiss. All of that not only cost money, with extra legal fees and was extremely expensive and unaffordable, but our system is based on the premise that the state should provide evidence of the reliability of its evidence, rather than the other way around. That's why shifting the burden to the person sought is not fair.
The second one is that when a person is going to be deprived of his or her liberty by going to prison for so many years, they should be allowed a chance to defend themselves. There should be disclosure of relevant evidence. We are not saying tons or all evidence that has been collected, but at least relevant evidence.
In Hassan's case, France did not disclose much relevant evidence. For example, they had done analysis on the hotel card. In France, this was done in 2008 and it's different from the one that was done by the RCMP. It showed that the fingerprint on the hotel card that was signed by the suspect was not Hassan's fingerprint. This was suppressed from the Canadian court. Actually, the Canadian court said that no fingerprint existed on the hotel card. We found out later, after Hassan was in France, that this was not truthful. If we had disclosure of the relevant evidence, Hassan would have known this and it could have made a difference in his extradition.
The other point is that Hassan was not allowed to call evidence. This is common to all people facing extradition. We had to convince the judge that the evidence Hassan was presenting was really relevant and it could knock the case out. The bar was very high. Hassan's lawyer had to argue for so many days in court for Hassan to be allowed to call the handwriting experts, for example.
The last one was mentioned by others. Extradition judges are not allowed to consider issues of fairness. In Hassan's case, the extradition judge would say things in court like, if this were in Canada, he would have done something different. He would say that, whether he liked it or not, this is the law and he has to abide by what the law says, even if he does not like it. When issues about fairness were mentioned, he would say that it was not under his domain, but that it was up to the Minister of Justice.
Again, I think we should empower the judges because they are more independent. I think judges in Canada are more likely to take difficult decisions than a Minister of Justice.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Naqvi.
We will next go to Mr. Fortin for two and a half minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Ms. Tfaily, you are correct in saying that, at present, the court that evaluates a request must presume the reported evidence to be reliable. The goal is not to determine whether the person is guilty, but rather to determine whether they should be extradited.
If it is decided, however, not to extradite the person on the basis of the minister's good will, but rather on the basis of a Canadian court's decision, in your opinion, should that court then have to conduct a trial with due process to determine the individual's guilt?
What do you propose?
As an Individual
I don't think it's going to happen, but if this were my personal decision, I think prosecutions should happen in Canada. If there is going to be a trial, I think it should happen in Canada, rather than Canada extraditing to other countries where there might be torture or long imprisonment. The rules of evidence might be very different from here. I think for fairness and to ensure that those who are guilty are brought to justice, prosecutions should happen in Canada. With Zoom—which we have been doing through the pandemic—I think this is achievable, in order to have witnesses who don't want to travel to Canada to appear by video conference.
If this is difficult to implement, then I believe that judges should be empowered and the extradition law should be changed to allow the person sought a meaningful chance to defend themselves.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
In the case of extradition, however, we assume that the crime was committed in a third country, not in Canada. So it is a crime under the laws of that country. In principle, a Canadian judge cannot and should not rule on a case involving another country and its laws.
Do you not think it is problematic in terms of procedural fairness and justice for a judge who is not familiar with the applicable law to determine an individual's guilt?
As an Individual
There are many countries that Canada has extradition treaties with, and they don't extradite to Canada. France, for example, does not allow its citizens to be extradited to Canada. Rather, it holds the trial in France for them. Why can France do that whereas Canada does not? France is trying to protect its citizens, while Canada often tries to leave them without protection.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
Mr. Garrison, you have two and a half minutes.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you, Mr. Chair.
I know we started a bit late, and we're going to run into time problems with our next panel.
I'll just close by thanking the witnesses once again, particularly Ms. Tfaily, whose family has gone through enormous struggles with this. I think that the strength of her presentation today is a testimony to the strength of the family. Thank you, once again.
Liberal
The Chair Liberal Randeep Sarai
Thank you to the witnesses. I want to thank Ms. Tfaily, Mr. Behrens and Mr. Singh for their time.
We're now going to suspend for a minute or two while we do sound checks for our next panel.
Thank you.
Liberal
The Chair Liberal Randeep Sarai
We'll resume.
Hopefully all of you on Zoom and Mr. Neve here learned my protocol on 30-second cards. I give a red card when your time's up. I don't like interrupting.
Make sure that you have your interpretation on the right channel so that we don't have any challenges with interpretation. For those on Zoom, you can pick floor, English or French. In the room, you can do the exact same thing.
We'll begin by having opening statements from our witnesses for five minutes.
We have, as individuals, Mr. Robert Currie, professor of law, Schulich school of law, Dalhousie University; Dr. Joanna Harrington, professor of law, faculty of law, University of Alberta, by video conference; and Alex Neve, senior fellow, graduate school of public and international affairs, University of Ottawa.
Thank you for returning. I think you guys were all scheduled the other day. Unfortunately, because of technical difficulties, we had to reschedule you. Thank you for your consideration in that regard.
I'll begin with Mr. Currie, for five minutes.
Robert J. Currie Professor of Law, Schulich School of Law, Dalhousie University, As an Individual
Would it be okay if I ceded my spot to Mr. Neve? I think it would be better if he set things up.
Liberal
Alex Neve Senior Fellow, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Thank you very much, Mr. Chair. Yes, we have a bit of a game plan for you.
You have just heard about Hassan Diab's labyrinth of injustice from his wife, Rania Tfaily. I want to begin by really acknowledging what a courageous and remarkable woman she is and, as I think many of you said in your comments, the incredible injustices that the family has been through.
I, too, want to highlight key lessons from that case, which begins on October 3, 1980, when four people were killed and 40 others injured in a terrorist bombing outside a synagogue in Paris, a harrowing crime for which there must be justice. Twenty-eight years later on November 13, 2008, Hassan Diab, a Canadian citizen, was arrested on a French extradition request, accused of carrying out that attack. Over the next six years, he went through lengthy extradition proceedings but ultimately was extradited to France.
You've heard about the debacle of the handwriting evidence in his case, which Ontario Superior Court Justice Maranger described as “highly susceptible to criticism and impeachment.” Nevertheless, Justice Maranger concluded that he had no choice but to order extradition even though, in his words again, “the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely.” That was the outcome because the threshold for extradition is that low.
Hassan Diab was imprisoned in a maximum security prison in Paris for three years and two months, in solitary confinement almost the entire time. It's worth reminding ourselves that international human rights standards recognize that prolonged solitary confinement beyond 15 days constitutes torture or cruel treatment. He was held that long because, despite French assurances that they were ready to go to trial, they clearly were not.
The weak case against against Dr. Diab collapsed further. Judges eventually corroborated his long-standing claim that he had been in Lebanon writing his university exams at the time of the bombing.
Finally on January 12, 2018, French judges concluded there was insufficient evidence to charge him and ordered his release. He returned to Canada, but this was not over. The French prosecutor appealed. The appeal was upheld, and as you've heard, a trial against him will now take place in Paris in April. His extradition has not been sought a second time. Instead, he is being tried in absentia, which of course raises further fair trial and justice concerns. To call his experience Kafkaesque would be a dramatic understatement.
Further concerns have emerged about the earlier extradition proceedings, including revelations that Canadian government lawyers did not disclose exculpatory evidence that Dr. Diab's fingerprints did not match fingerprints on record and that government lawyers were actively advising the French government about how to strengthen its collapsing case against Dr. Diab.
In a 2019 external review report, former Ontario deputy attorney general Murray Segal found that the Diab case had been handled ethically, in a manner that was consistent with Canadian law. He noted, however, that he had not been tasked with reviewing Canadian extradition law and policy more broadly, and it is that qualification that makes your study of extradition reform so important.
Hassan Diab was extradited because the obvious misgivings and unease of the presiding judge that this was a weak case and that he was unlikely to be convicted in a fair trial didn't matter. He was extradited even though the extraditing state was clearly nowhere near ready to go to trial. He was held without going to trial for over three years, almost the entire time in solitary confinement, a clear violation of international human rights. Exculpatory evidence was withheld, and Canadian government lawyers appeared more intent on assisting the French government than upholding the rights of a Canadian citizen.
A Canadian citizen can be extradited to France in such spurious circumstances as this while French law does not allow any French citizen to ever be extradited to Canada. All of this happened even though Dr. Diab was represented by some of the most experienced defence lawyers in the country. If that human rights travesty is consistent with Canadian extradition law, there is something woefully wrong with extradition law.
You're going to hear a tremendous proposal for reform from Professor Currie.
Thank you.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Neve.
Now we'll go to Professor Currie for five minutes.
Dr. Joanna Harrington Professor of Law, Faculty of Law, University of Alberta, As an Individual
No, I think it's going to be me, if that's okay.
Liberal
The Chair Liberal Randeep Sarai
We'll let you do whatever you want. You can go for five minutes, and then we'll go to Mr. Currie after.
Professor of Law, Faculty of Law, University of Alberta, As an Individual
Thank you very much for the opportunity to be here today.
I'm going to comment on three areas that need extradition law reform. My first area of focus concerns the need for greater transparency and government disclosure of extradition-related data.
One lesson learned from the media coverage of several contentious extradition cases is that the public needs to more clearly understand the extradition process, the role of the courts, the role of the minister and the timelines involved. In the Meng Wanzhou extradition, the Department of Justice did eventually publish an infographic, a fact sheet and some statistical information, but more is needed.
Extradition law and practice are not well understood widely, and if we are to improve extradition, we need the data held within government. I suspect that this data will show that extradition is often not the speedy, efficient process it is pitched as being. We need to understand why, and to do that we need the disclosure of information.
There are statutes that require designated ministers to prepare an annual report to Parliament on the implementation of a treaty and the enforcement of an act. The Corruption of Foreign Public Officials Act provides an example. It requires the ministers of foreign affairs, international trade, and justice to jointly prepare a report on the implementation of the Anti-Bribery Convention and on the enforcement of the related legislation.
In my view, a similar reporting obligation is needed in the Extradition Act so as to require the regular public disclosure of the number of extradition requests Canada receives, from which countries and for what crimes. This annual report to Parliament should provide some information on what evaluation was undertaken of the requests received, the reasons for any delay and the end result.
It would also be helpful to indicate whether the individual to be extradited is a Canadian citizen or a permanent resident. I make this last point as the cases that have taken many years in the Canadian courts so often have involved requests for the extradition of Canadian citizens.
There's also a need to require the public disclosure of the assurances provided by a foreign country that are used to secure an individual's extradition. With Canadian jurisprudence supporting the use of diplomatic assurances to alleviate any potential human rights risks arising, there is a rule-of-law rationale for making these assurances publicly available. Secrecy does not build trust in the rule of law, and publicity would add strength to any assurance provided by a foreign state.
My second area of focus concerns the siloed nature of extradition practice and its centralization within the Department of Justice. By its very nature, extradition involves and has implications for both international law and international relations. It's for this reason, I submit, that extradition needs the involvement of both the Minister of Foreign Affairs and the Minister of Justice.
The Extradition Act imposes a consultation obligation for the Minister of Immigration but no consultation obligation for the Minister of Foreign Affairs, despite the expertise available to the foreign affairs minister to assess a foreign state in terms of its human rights record, the fairness of its trials and the conditions of its prisons. A foreign affairs ministry also has the capacity to undertake the post-surrender monitoring recommended by an Australian parliamentary committee.
Foreign affairs considerations should also be addressed at an earlier stage in the process, upon receipt of an extradition request. Justice Canada could be obliged to work with Global Affairs Canada on the consideration of all possible grounds for refusal of an extradition request at the preliminary stage rather than many years later in controversial cases. Alternatively, the evaluation of an extradition request could be made the responsibility of the Attorney General of Canada as the chief law officer without the political responsibilities of the job of the justice minister.
The third area for reform is the role of the extradition judge. Since extradition involves the loss of an individual's fundamental right to liberty, a rational basis exists for a more robust role to be accorded to the extradition judge. Indeed, in Victorian times it was the role of the judge to consider whether extradition in the circumstances was unjust or oppressive. Today Canadian extradition law directs that the justice minister make that call. Enabling a more robust role for the extradition judge would allow an individual's circumstances, the values of the Canadian legal system and the human rights record of the requesting country to be considered directly and openly by a court.
On that note, I cede the floor to my colleague, Professor Robert Currie.
Professor of Law, Schulich School of Law, Dalhousie University, As an Individual
Thank you, Mr. Chairman. I hope that I will have been worth waiting for.
I am honoured to be invited to address this committee and of course would be very pleased to answer any questions that members have after my opening remarks.
From the beginning, concerns were raised about the legal processes that were put in place under the Extradition Act, and specifically about the fairness of those procedures.
The Supreme Court of Canada itself raised concerns in its 2006 decision in the United States v. Ferras and put in place legal tests that were meant to ensure fairness. However, concerns remained, demonstrated most poignantly by Dr. Diab’s case, as you've heard.
In 2018 I had the honour of chairing a colloquium, hosted by the MacEachen Institute at Dalhousie University in Halifax, on the topic of reforming Canada’s extradition laws, policies and practices. The colloquium was attended by people from across Canada who had expertise in extradition, international law, constitutional and criminal law, policy and human rights. It included Professor Harrington and Mr. Neve, who are also appearing here today.
We produced a draft document that highlighted problems with extradition in Canada and proposed solutions, on which we received further input during a subsequent meeting hosted by Professor John Packer at the University of Ottawa.
The end result was a document entitled “Changing Canada’s Extradition Laws: The Halifax Colloquium’s Proposals for Law Reform”, which I will refer to as the Halifax proposals. It was published in 2021, and it is in materials that were circulated to you in advance of this hearing today.
The document is 20 pages in length and covers a lot of ground, and I wouldn't be able to review it in detail for you. What I want to flag for the committee, however, is that the Halifax proposals are a serious and detailed plan for the reform of Canada’s extradition regime, formulated by people whose motivation is to improve the way these laws work and to protect the fundamental rights of Canadians.
I and the other authors of the report sincerely hope that it can be a helpful part of meaningful parliamentary scrutiny into this issue, as begun by this committee today in these hearings.
The idea is not that tinkering is required but rather that a broad inquiry be made. At the heart of it is the proposition that Canada’s laws, policies and practices around extradition need to be scrutinized and reformed in accordance with three general principles: first, fundamental fairness; second, transparency; and, third, a rebalancing of roles. By a rebalancing of roles, I mean that the roles of the courts and the government need to be rebalanced, and that we also need a rebalancing of charter protections and administrative efficiency.
I want to emphasize that, while much of the reform agenda that we propose would involve amendments to the Extradition Act, the ambit is much wider than that. The Halifax proposals dig into pretty much the entire scope of extradition matters in which Canada plays a part. You've heard a selection of proposals that are included within the report and very much resonant of it from Professor Harrington, who was of course one of the attendees at the Halifax colloquium.
The Halifax proposals, though, look at the court procedures for the extradition hearings that take place here in Canada, as well as the process by which the Minister of Justice makes the final decision on extraditing each case. However, they also make recommendations on the international aspects of extradition, including Canada’s practices in signing and administering treaties with other countries; Canada’s role in ensuring fair treatment of individuals once they are extradited; and how the entire process needs to adhere to Canada’s international human rights law obligations. They further look at the role of the international assistance group and make suggestions for how that office could play its role differently and how it could be restructured to facilitate that different role.
I will conclude by suggesting that the world of extradition has traditionally been quite murky and below the public’s radar, and troubling problems have been allowed to grow. The more Canadians have heard about cases like Dr. Diab’s, the more disturbed they have become. This committee’s inquiry represents a historic opportunity for Canadians to have input into a process that affects the rights of Canadians and others and to ensure it's administered in a way that is fair and that comports with the principles of fundamental justice.
Thank you.
