Justice Committee on Feb. 8th, 2023

[Larry Brock, Conservative, Brantford—Brant, ON]

Actually, Mr. Chair, it would be Mr. Van Popta.

[The Chair, Liberal, Randeep Sarai]

Okay. Go ahead, Mr. Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Chair. Thank you, witnesses, for being here.

Ms. Henchey, I'm going to ask you about a British Columbia case. It's the case of Jassi Sidhu, who was murdered in India in a so-called honour killing. The people alleged to have committed the murder were her very own mother and her maternal uncle. Those two people made it back to Canada, and they were successfully extradited back to India, but it took 17 years.

In that case, the two accused people argued in Canadian court that they would likely be mistreated in an Indian prison. You were quoted in CBC News. I'll give them the benefit of the doubt that they quoted you correctly. You said:

It undermines the entire concept of extradition and sending people to the country where they have allegedly committed a crime if we refuse to surrender based on imperfections in our treaty partners, even sometimes large imperfections....

First of all, do you remember saying that? Would you mind expanding on that?

[Janet Henchey]

I argued that case in the Supreme Court. I don't remember everything I said. Like you, I'll assume that I'm properly quoted.

I was trying to express that a principle of extradition is that we accept that every country is not going to be the same as us. They're not going to conduct a trial the same way in a foreign country as we conduct a trial here in Canada. Although we expect certain fundamental safeguards, we cannot expect exactly the same system.

Our system is also not perfect. When we're seeking extradition from other countries, they also criticize us. That's part of the back-and-forth that you have with respect to the extradition system. What is important is that we're ensuring that the imperfections are not contrary to fundamental justice. We're looking at ensuring that a person is going to have a fair trial and that a person is going to be treated properly while in prison.

In fact, in the Badesha and Sidhu case, which was the Jassi Sidhu murder case, we extradited subject to a number of assurances that they would be treated properly while in India. This included that we would have access to their trials— people from the Ministry of Foreign Affairs would have sat in on their trials—that they would have access to consular services, that they would be treated properly while in prison and that they would be granted proper medical care. These are the kinds of assurances that sometimes are necessary when a country is significantly different from ours in the way that it conducts its judicial and correctional systems.

It's just basic little differences or issues. There's no such thing as a perfect system. I think that's what I was trying to say.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

That's fair enough. Thank you very much for that.

You heard Mr. Bayne give evidence in the earlier panel. He made reference to the Rivoire case. In this case, we sought extradition from France for a person who is accused here in Canada of sexual assault many years ago. France turned down that extradition request based on the facts being so old.

We don't have a statute of limitations on sexual assault cases. Mr. Bayne said there's a lack of reciprocity with France—this being evidence of that situation—and that should certainly inform any treaty that we have with France.

Do you have a comment on that?

[Janet Henchey]

I think one reason that France didn't extradite in the Rivoire case was that Mr. Rivoire is a French national. That's one topic that's come up quite a bit, about whether some countries extradite their nationals. Canada does; others don't.

That really is a difference that exists in the extradition world. Our like partners—the United States, Australia and the United Kingdom—all extradite their nationals. It's a characteristic of common law countries. The reason is that we don't have jurisdiction to prosecute for offences that occur extraterritorially, for the most part. There are some exceptions. In order to ensure that there's not impunity, we extradite our nationals so that they will face prosecution when charged with serious offences.

Countries like France do not extradite their nationals. For France in particular, it's part of their constitution. That's a policy difference that we probably disagree with, because we think that you should be prosecuted in the location where the offence took place, it that's a legitimate policy choice that was made by France and a few other civil law countries.

The end result of that is you either extradite or prosecute. That's kind of the policy, so if you're not going to extradite, then you have to consider prosecution in your jurisdiction.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'm out of time. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Van Popta.

Next I'll go to Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much.

I think you were present when Mr. McSorley and Mr. Bayne were making their deputation. They presented five recommendations. Actually, Mr. McSorley made five and I think Mr. Bayne had about four different recommendations.

By memory, are you able to comment on at least some of the key elements so that we get the Department of Justice's perspective on those recommendations?

[Janet Henchey]

I wasn't actually here, except for the last five minutes of their testimony, so I don't know what the five were. I know that your colleague mentioned some things.

He mentioned that the requesting state should have a burden of proof of balance of probabilities. I already addressed that.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Reciprocity was the other one.

[Janet Henchey]

I addressed the disclosure.

The reciprocity is where we stopped, but I think that's what I was talking about with the last question.

Reciprocity does not necessarily mean identical. It means that when we make a request to France or they make a request to us in this context of extradition of nationals, you have to either extradite or prosecute. The idea behind it is that we will ensure that justice is done and that the person is not getting safe haven from prosecution by not being extradited.

The treaty actually specifies that we are not obliged to extradite nationals, but our law provides that we do extradite nationals because we don't want them to not be prosecuted just because we don't have jurisdiction to prosecute for a lot of basic criminal offences, like murder and sexual assault, etc.

That's all I have.

What were the other two?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

There was another one—I'm going by memory as well, so pardon me—around timing of extradition, which was around when a trial would be starting in the requested country.

I think that relates to Mr. Diab's case. For example, I think he was in prison for three years before the trial came about in France.

[Janet Henchey]

I have to very careful about talking about specific cases. That one is ongoing, in a number of different ways.

However, when somebody is extradited, there has to be evidence that they've been charged with an offence. There was argument before the courts—I think I can mention it because it was before the courts—that the Diab case didn't constitute being charged, because he was under what they call “a form of investigation”. It was found to be the equivalent to being at the preliminary inquiry stage in Canada.

It is such a different system that they have in France. Again, that's where we have to be very careful not to superimpose our particular approach on the foreign country. The courts in Canada, and also courts in the U.K., have found that the approach in France, whereby they bring the person in front of an investigating magistrate, which is kind of the long version of the preliminary inquiry, is the equivalent of being charged.

We have a requirement that a person has to be charged; it's a question of what that means in a particular country.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Let me ask you this question. I'm mindful, in asking you this, of the fact that it may be an unfair question.

[Janet Henchey]

I don't like unfair questions.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Then pardon me.

We have an advantage of also sitting in front of two experts on extradition law. You obviously know this piece of legislation and the application of it quite well. In your view, is there room for improvement in the current legislation? If so, do you have a wish list of things that you think need to be modernized or amended? That's the unfair part.

This may be a good opportunity to share this with a group of legislators who are looking at how the bill could serve Canadians better.

[Janet Henchey]

I'm happy you knew in advance that it was an unfair question. I can't really answer most of that, other than to say that there's no such thing as a perfect piece of legislation, just like there's no such thing as a perfect system in any country.

Obviously there are ways that it could be improved. We would never say otherwise. It does not necessarily mean that we would endorse all of the ways that people are proposing. It's important that changes to legislation are not made just because of one particular case in which somebody didn't like the outcome; you have to look at the entire system and the principles behind it.

When we look at some of the proposals that have come forward from some of the other witnesses, I would ask that we remember that the proposals come from a particular perspective. We also have to look at the perspective of the administration of justice generally. We have to look at the perspective of our international partners. We have to look at the general system of extradition as a whole and the principles behind it, and the fact that without extradition, we are creating a system of impunity whereby criminals can just hide wherever they want to avoid being prosecuted.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Next we'll go for a two-and-a-half-minute round, beginning with Monsieur Fortin.

You have two and a half minutes.

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

Thank you, Mr. Chair.

Ms. Henchey, you quickly went to the fourth condition with my colleague, Mr. Naqvi, in relation to what Mr. Bayne told us. We have to make sure that the trial will be held within a reasonable timeframe, which would avoid situations like that of Mr. Diab, who spent three years in a foreign prison without trial or anything else. Personally, this condition seems perfectly reasonable to me, but perhaps I'm not seeing the whole picture.

Don't you think that it would be important to amend the Extradition Act so that Canada, before extraditing someone, would require a foreign state to guarantee that the trial would be held within a maximum timeframe, say six months, or that the state would provide some sort of guarantee that it is ready to hold such a trial?

[Janet Henchey]

I'll bring you back to the question before that, about reciprocity.

Remember that whatever—

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

Ms. Henchey, I do apologize for interrupting you, but I only have a minute and a half left. I would like to talk about delays.

[Janet Henchey]

I am answering about delays.

If we seek to insist upon a six-month delay in another country, then that reciprocity would require the same delay for us. We would not even be able to abide by that. You need to look at the criminal justice system generally in Canada. There are all sorts of things that happen to cause things to be delayed that are outside of the control of—

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

However, if the country is not able to hold a trial for the foreign national and there is a delay, it could wait before extraditing the person.

[Janet Henchey]

It's “reasonable delay”, yes.