Justice Committee on Feb. 8th, 2023

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

Thank you, Mr. Chair.

I want to go back to Mr. Bayne.

You told us that the first of your points that you said were the most important is doing away with the presumption of reliability of the record of the case.

[Donald Bayne]

That's combined with the reverse onus on the individual to demonstrate what's called manifest unreliability. Together, that produces an inherently inevitable extradition.

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

Do we find those two things in the extradition law, or is that more in the case law that's developed?

[Donald Bayne]

No, it's in the act.

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

It's in the act.

[Donald Bayne]

It's right in the act.

The first part of it, the creation of a statutory presumption of reliability of unsworn hearsay evidence, is in the act.

In 2006, on a constitutional challenge to the regime in a case called Ferras, the Supreme Court tried to save the system, saying that they have to equip judges to be able to assess reliability. The problem is that since 2006, Ferras has proven to be a false promise, because this mountain of a wall that is demonstrable manifest unreliability has never been achieved. You can't do it.

If Diab did not, with all the experts in the world.... Let me explain.

With the first two alleged handwriting samples used by France against Dr. Diab, it turned out that the two supposed experts in France relied on the wrong person's known handwriting. They were not comparing Dr. Diab's handwriting. They were comparing his wife's handwriting. They identified her as that 40- to 45-year-old male bomber who signed in at the hotel.

When that came out through expert evidence by the international experts, who recognized that they weren't even comparing Dr. Diab's handwriting.... This was another person's handwriting. They got another person. That person did not follow accepted methodology.

The Swiss experts said it's totally unreliable. The leading Americans said it was unreliable. The leading U.K. authorities said it was unreliable. The leading Canadians said it was unreliable.

That has grown up in the case law, but it should be clear that if you don't have this presumption, you haven't put a reverse onus on the person.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Thank you, Mr. Bayne and Mr. McSorley, for your very informative and very insightful testimony today.

That concludes the first panel. We'll suspend for a quick five minutes while we have the next panel set up. If anyone needs to do a health break, they can do that.

I will suspend for five minutes. We'll see you back at 5:40.

[The Chair, Liberal, Randeep Sarai]

We'll resume our meeting. I want to welcome everyone back. We now go to the second hour of our study of extradition law reform.

With us now to complete their appearance of February 1, from the Department of Justice, we have Janet Henchey, director general and senior general counsel, international assistance group, national litigation sector, and Erin McKey, director and general counsel, criminal law policy section.

Thank you for being with us again, and welcome to the committee.

If the officials have anything to add, please do so.

If not, we adjourned at Monsieur Fortin's round, so we can commence from there, but I'll leave that to you. If you want to comment or want to add anything before resuming a round of questions, I'll leave that to you, Ms. Henchey and Ms. McKey.

[Janet Henchey, Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice]

It's hard to ask a lawyer if they want to add something and have them say no.

[Voices]

Oh, oh!

[Janet Henchey]

I'll just make a few comments, because I've had the opportunity to review some of the testimony from previous days and a little bit from this afternoon.

I think we never got a chance to talk about this the last time: the really important principle of extradition that doesn't seem to be accepted by most of the witnesses that you've heard, which is that extradition is not a trial. The reason it's not a trial is that the whole premise of extradition is that a person is going to have a trial wherever they're being extradited to. To turn an extradition hearing into a trial, first of all, delays the opportunity for that person to face justice in the jurisdiction where they're headed. It delays access to the witnesses and the process in the foreign jurisdiction, which under the Canadian system, as you know, is something we try to avoid. We try to get people to trial as quickly as possible.

Most of the recommendations that have been put forward by many of the witnesses seem to have ignored that point, the point that these people who are being sought for extradition will have a trial. It's built into the system that this is what's intended. By calling witnesses and cross-examining witnesses and turning the extradition process into a trial, we are actually delaying the person from accessing justice in the country that's seeking their extradition.

I could go on and on, but I'll stop there and let you ask questions.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We will begin our round with Monsieur Fortin for six minutes, as I don't believe any of his minutes were able to be optimally used.

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

Thank you, Mr. Chair.

Thank you, Ms. Henchey and Ms. McKey. I do apologize for the inconvenience caused by the interpretation problems at your last appearance.

We have just heard two witnesses, Mr. Bayne and Mr. McSorley. Mr. Bayne submitted four proposals aimed at improving the Extradition Act. I will quickly go through them.

The first recommendation would be to require that the requesting state bears the burden of proof, not beyond all reasonable doubt, but on the balance of probabilities.

The second proposal is to require complete disclosure of the evidence, even exculpatory evidence, much like we do in the course of a normal criminal investigation in Canada.

The third proposal is to demand that the requesting state enter into a reciprocity agreement with Canada in matters of extradition.

The fourth criteria is to make sure that the trial will be held within a reasonable timeframe, in order to avoid what happened in the Diab case, when the accused was detained for years before the trial because the requesting state was not able to proceed quickly.

I would like to know what you think about these four conditions.

[Janet Henchey]

Thank you.

I'll go through the first two, and then I'm going to ask you to clarify the third one, because I didn't fully understand what that third point was.

The burden of proof is always on the requesting state, or Canada, in the sense that we have to establish there is a prima facie case that would constitute an offence in Canada if that evidence took place in Canada, if that conduct took place in Canada. All this comment about the burden of proof being—

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

I do apologize for interrupting you, but I don't want us to stray too much. I understand that you would presume that it was a prima facie case with sufficient evidence. I did not hear you say that the evidence would be examined, but I may have got that wrong end.

[Janet Henchey]

It's kind of conflating the two things, as I think previous witnesses may have done.

Yes, there is no requirement to determine whether the evidence is admissible in the sense that it's put into a record of the case. It's a summary of the evidence that the requesting state is relying on, but the sufficiency of that evidence.... Once the court receives that evidence and looks at it, it's for the court to determine its sufficiency. It's not determined in advance. The person sought doesn't have to prove that it's not sufficient; the requesting state has to argue the sufficiency of the evidence that they're relying upon.

You've heard some comment about how all the evidence hasn't gone forward. I think that's part of one of your questions. It's to the detriment of the requesting state if they don't put enough evidence forward. They provide us with a document that outlines the evidence they're relying on.

It's similar to a preliminary inquiry in Canada. The concept is that we're not having a real trial; we're just establishing that there's some evidence that would justify having a trial. It's the same test we have in preliminary inquiries in Canada so that you don't waste the court's time with a trial if there's no evidence to justify going forward.

It's the same test and it's a similar process. It's the same in a domestic criminal preliminary inquiry. The Crown decides what they are relying on, but they don't necessarily put the whole case in front of the court.

With respect to extradition, just to clarify, it's the requesting state that decides what's going in front of the court, not what's been referred to as the prosecutor or the lawyer for the Attorney General of Canada who is appearing in front of the court. They're putting forward the case provided to them by the requesting state. It's not a question of deciding how much of this we will put forward; it's there, and we put it forward. That's what they've asked us to rely on. If it's not enough, that's to their detriment.

That sort of answers the first question, I think.

I don't think it makes sense to build up the level of proof to a higher level. It's a level that we're familiar with in the criminal justice system, the prima facie case that's used in a preliminary inquiry. It wouldn't make sense to make it “beyond a reasonable doubt”, because that's the trial standard. The standard that's being proposed is what you use at a civil trial.

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

We were talking about the balance of probabilities and not the criteria being one of beyond reasonable doubt.

[Janet Henchey]

Again, in the criminal context this is a very known standard. It's the standard we use in preliminary inquiries. The balance of probability is not a standard that's used in the criminal context, so it would actually not be what the criminal courts would be familiar with in the context of a criminal proceeding.

As far as the disclosure of the proof goes, we disclose what we're provided by the requesting state. They don't have to give us everything they have, but if we were in possession of something that was actually exculpatory, we would disclose it. On the statement that's been made repeatedly that we hang on to exculpatory evidence, we don't have the whole case, because it's in the foreign state, but if we have something, we're disclosing it. If it's exculpatory, we would certainly be disclosing it.

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

Could we not ask for it?

[Janet Henchey]

Can you ask for disclosure? Well, we don't have to—

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

Could we not ask for complete disclosure from the foreign state?

[Janet Henchey]

No. The reason is that it's not a trial. The idea is that we're doing this as though it were a preliminary inquiry. Is there enough evidence to justify having a trial? If the person is extradited, the evidence will then be provided according to the laws of the requesting state.

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

What do you think about the third condition, which would be to require a reciprocity agreement between Canada and the foreign state? Would that be a good idea?

[Janet Henchey]

I'm sorry. We're out of time, but I—