Evidence of meeting #48 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.

On the agenda

MPs speaking

Also speaking

Timothy McSorley  National Coordinator, International Civil Liberties Monitoring Group
Donald Bayne  As an Individual
Clerk of the Committee  Mr. Jean-François Lafleur
Janet Henchey  Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice

4:35 p.m.

Liberal

The Chair Liberal Randeep Sarai

I call this meeting to order.

Welcome to meeting number 48 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108(2) and the motion adopted on January 30, 2023, the committee is beginning its study on extradition law reform.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely by using the Zoom application.

I'd like to make a few comment for the benefit of witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

With regard to interpretation services, those on Zoom have the choice at the bottom of your screen of either floor, English or French. Those in the room can use the earpiece and select the desired channel.

As a reminder, all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

I have cue cards, so try to pay attention to me, even though sometimes on a large screen it's hard to see. When you're closing in on your 30-second mark, I will raise the yellow card. When you're out of time, I will raise the red card. I ask you to be respectful of the time and wrap things up on your own so that I don't have to interrupt you.

For the first hour as we continue our study on extradition, we have Don Bayne, who is appearing as an individual. We also have Timothy McSorely, the national coordinator of the International Civil Liberties Monitoring Group. Welcome to you both. I believe you're in person in the committee room today. Thank you for accepting our invitation.

I have some administrative info to deal with quickly before we begin.

I'd like to inform you of this letter sent by the clerk earlier today regarding mandatory headsets and microphones for witnesses. That letter was sent to all committee chairs. I strongly invite you all to take a moment to read it. As the operations related to organizing witnesses' appearances are vital, I would encourage you to keep in mind the letter's content when you send your witness lists, in order to facilitate them. I thank you for your usual collaboration.

Without further delay, you have the floor for five minutes each. As usual, that will be followed by a round of questions from the members of the committee.

Go ahead, Monsieur Fortin.

4:35 p.m.

Bloc

Rhéal Fortin Bloc Rivière-du-Nord, QC

Mr. Chair, I will ask the usual questions, with your permission.

Have the sound checks been carried out with the witnesses who will be attending the meeting by videoconference, and were the results satisfactory?

4:35 p.m.

Liberal

The Chair Liberal Randeep Sarai

Yes, they were. Both have been tested. We trust that interpretation services will be able to commence accordingly.

We'll go to our first witness for five minutes.

4:35 p.m.

Timothy McSorley National Coordinator, International Civil Liberties Monitoring Group

Thank you, Mr. Chair, and thank you to the members of the committee for inviting me to speak with you today on behalf of the International Civil Liberties Monitoring Group regarding the urgent need to reform Canada's extradition laws.

The ICLMG is a Canadian coalition of 45 national civil society organizations with a mandate to defend civil liberties from the impact of anti-terrorism laws and policies, both in Canada and internationally.

We have been deeply involved in the campaign for justice for Dr. Hassan Diab, whose devastating case you have heard about at length. This has led us to closely examine the need to reform Canada's extradition laws in order to prevent abuses of civil liberties and human rights committed in the name of countering terrorism.

As you are aware, Dr. Diab was arrested by the RCMP in 2008 for extradition to France on accusations of carrying out a terrorist attack in Paris in 1980. While Dr. Diab was accused of committing a crime 30 years earlier, his arrest, hearings and eventual extradition took place squarely in the political and social context of the so-called “war on terror” that led to the severe rights violations in Canada.

This same context applied to France. In the same year as Dr. Diab's arrest, Human Rights Watch issued a damning report that found that “French counterterrorism laws and procedures undermine the right of those facing charges of terrorism to a fair trial.” The report documented that it was common practice for those held on suspicion of terrorism to face psychological pressure during custody. This sadly reflects Dr. Diab's experience of prolonged solitary confinement, the length of which amounted to torture and violation of international human rights law.

The report also raised concerns that judges in France had allowed the introduction of unsourced intelligence without sufficiently probing the validity of the information. This includes judges allowing for the inclusion of testimony obtained under torture in foreign countries, in violation of the convention against torture, to which France was and is a signatory. Once again we saw the use of unsourced intelligence used in the case of Dr. Diab.

All this was known before Dr. Diab's extradition to France, yet he was still extradited and faced the consequences of France's unfair anti-terrorism regime.

An extradition process that appropriately considers human rights, civil liberties and the right to a fair trial would have taken all these elements into account. Instead, given France's status as an ally and extradition partner, the detailed and serious problems of the country's anti-terrorism system were not appropriately considered.

Others have spoken about extradition cases in which human rights have been violated. You have also heard how Canada has an extradition agreement with India, despite reports of torture and India not being a signatory to the convention against torture. Importantly, India also justifies their grave human rights abuses as necessary in their self-defined fight against terrorism.

Our own research has found that at least 10 countries with which Canada has extradition treaties have been singled out in just the past three years by the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. They were singled out for introducing or adopting rights-violating counterterrorism laws. This includes France.

Under Canada's current extradition system we continue to run the risk of extraditing individuals to face unjust, rights-violating legal systems under murky and politicized accusations of terrorism. Indeed, there is the real risk that France could seek a second extradition of Dr. Diab and that our flawed system would grant it, despite all we now know and all that Dr. Diab has been through.

Given all this, we join others in calling for reforms to Canada's extradition laws. We have publicly endorsed the recommendations of the Halifax colloquium, as was shared with you earlier this week.

Given the time restraints, I'd just like to share five very key points that we would like to highlight and emphasize in terms of reforms.

First, the committal process must be modified to ensure it is not as heavily weighted in favour of the requesting state. This includes allowing the disclosure of relevant evidence to the individual sought for extradition and allowing the individual to be able to bring their own evidence.

Second, Canada's domestic and international human rights and civil liberties obligations must be explicitly taken into account.

Third, there must be a rebalancing to increase the role for judges in weighing factors such as fairness, civil liberties and human rights, among others, in the final decision for extradition.

Fourth, there must be increased transparency regarding extraditions in Canada, including annual reporting.

Finally, fifth, Canada's extradition arrangements with foreign countries should be reviewed on an ongoing basis. As a starting point, Canada should not have extradition treaties with countries that have records of human rights abuses or have failed to ratify human rights treaties.

Thank you very much for your time, and I really look forward to your questions.

I am very happy to be appearing with Mr. Don Bayne, who I am sure will speak a lot more about the intricacies of the extradition system in Canada.

Thank you.

4:40 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you, Mr. McSorley.

Now we'll go to Don Bayne, please, for five minutes.

4:40 p.m.

Donald Bayne As an Individual

Thank you.

Members of the committee, as a guy who's been 51 years in the criminal justice system in this country, my perspective is that this is the most unfair process and law that I've encountered in that half century. I am also Hassan Diab's lawyer.

On the first day of Dr. Diab's extradition hearing, counsel for the Department of Justice from their international assistance group that represented France came up to me, introduced himself and said, “Hello. I am so-and-so. I have never lost a case.” I didn't say anything to that. There was nothing I could say to that. Good counsels lose cases. Sometimes the other side is better than you; sometimes they have a better case than you do. You don't always win if the system is fair. If you always win, something is seriously wrong in the process. He said it all proudly and unwittingly.

I've submitted to the committee two documents. The first is a May 31, 2018, letter sent to the Prime Minister, and the other is a memo on the French court of appeal decision.

The first document sets out key serious flaws in the Canadian act and extradition process. The second reveals the tragically—you could almost say comically, but it's tragic—unreasonable decision of the French court of appeal to order a trial of this man when their own professional investigative judges had already ruled that there was no evidence to justify putting this man on trial. Indeed, the evidence of innocence was so compelling that he shouldn't be subjected—he and his family—to further prosecution.

I'm happy to answer questions about these documents.

M views of the lack of balance and the critical shortcomings of this law and process aren't just my own. You may recall the former Justice La Forest of the Supreme Court of Canada. His daughter, Anne Warner La Forest, when she wrote this in 2002 as dean of the law school at UNB, said this about this act. She was writing this in 2002, so she had 10 years of experience with the act. It's only gotten worse since then. She said, “My view is that this new approach gives undue weight to the law of the requesting state as against the liberty of the [person].” That's really the consistent message. What's happened here is out of bounds.

I'll continue with some of her other comments: “The reality is that Canada has gone further than virtually any other country in facilitating extradition.” We serve up our people. “It has done so in the absence of strong empirical support for the view that such an incursion on the liberty of the [individual] was needed and in circumstances where Canada extradites its nationals.” Canadians are subject to this. We don't protect our own citizens in the way that other countries do.

She goes on to conclude as follows: “The new Act adopts a 'record of the case' approach that allows for second and third hand hearsay evidence with no assurance of reliability.” That happened in spades in the Diab case.

Finally, “I submit that the provisions applicable to admissibility and sufficiency in the new Extradition Act are contrary to fundamental justice unless the courts interpret the evidentiary provisions of the new Act so as to re-establish an appropriate balance”—that word again—“that allows the extradition judge to protect the liberty of the fugitive by assessing the weight and reliability of the evidence”.

Members of the committee, under this act, the judge is not allowed to assess weight at all.

Justice Maranger, who heard the long extradition proceeding, said that this evidence was “suspect”, that it made no sense, but he was duty bound. He said that it was so “weak” that he was compelled to say there was no reasonable prospect of a conviction in a fair trial but was compelled by the law to extradite, and that led to three and a half years in France.

That's all I have to say.

4:45 p.m.

Liberal

The Chair Liberal Randeep Sarai

That's perfect timing. Thank you, Mr. Bayne.

Now we'll go to our first round of questioning, with rounds of six minutes each. We begin with Mr. Brock from the Conservatives.

4:45 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Mr. Chair, before my time starts, may I ask a question of the chair?

The witness, Mr. Bayne, made reference to two documents that were submitted to the committee that did not find their way to my inbox. Is there an explanation for that?

4:50 p.m.

Liberal

The Chair Liberal Randeep Sarai

I can look into it. I'll find out.

Mr. Clerk, have we received that? Would you be able to provide clarity on that?

February 8th, 2023 / 4:50 p.m.

The Clerk of the Committee Mr. Jean-François Lafleur

Sure, Mr. Chair.

The documents are still in translation. They were a bit voluminous. That's the reason they're not available now, but they will be as soon as possible.

4:50 p.m.

Liberal

The Chair Liberal Randeep Sarai

Hopefully that answers your question, Mr. Brock. We'll have them to you as soon as they're translated.

4:50 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Thank you.

4:50 p.m.

Liberal

The Chair Liberal Randeep Sarai

You're welcome.

4:50 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Thank you so much, gentlemen, for your introductions and your willingness to participate in this important study. I have so many questions, but I have a limited amount of time, so I'll do my best.

On the documentation you referenced, Mr. Bayne, there was a purpose that you wanted this committee to review it. One I recall you mentioning was a letter that you specifically drafted to the Prime Minister. What year was that?

4:50 p.m.

As an Individual

Donald Bayne

The year was 2018. The day was May 31.

4:50 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Okay.

I note that in some of the briefing notes my office provided to me, you're quoted in May of 2021 referencing that the Prime Minister publicly stated on June 20, 2018, that “we have to recognize first of all that what happened to him”—referencing the Diab case—“never should have happened...and make sure that it never happens again”. That was June 20, 2018. Your letter is in May of 2018.

Can you share with us details as to what you asked the Prime Minister to consider?

4:50 p.m.

As an Individual

Donald Bayne

I think the first two pages were dealing with the type of review that the government was going to mandate, but what will interest this committee is the following.

I write, “And what, sir, is so very wrong with the current Extradition Act?” Then there are numbered paragraphs. The first is: “1.The Act unfairly deprives liberty” and goes on to explain how, and, “2. The unsworn allegation of the foreign official is “presumed” to be “reliable evidence”.

The Diab case showed the folly of such a presumption. For example, in Diab, the foreign official said, even though he knew it was untrue because he was in charge of the file, that there was no fingerprint that the French had found on the bomber's hotel sign-in card. He wrote the record of the case in late 2008 and early 2009. In 2007, the French had located an identifiable print on that card. They had excluded Hassan Diab as the source, so not only is it folly to, as Dean La Forest says in her extensive assessment of this act, rely on second and third hand hearsay; we can't even trust a long-time ally to tell us the truth.

That wasn't the only thing we weren't told. There were multiple other fingerprints that excluded this man. When the bomber was arrested, in almost a cartoon event, shoplifting pliers before the bombing, he was taken to the police station. The police didn't take a photograph of him. They took a statement from him. He filled out the statement and signed it. They found 16 fingerprints on that. Ten of them were identified as those of the police who handled the document. Of the six unidentified, none match Hassan Diab.

All of that did not appear in the record of the case. This invites this system whereby some foreign official who can't be cross-examined and doesn't have to swear that this is true. He simply certifies that this is evidence we have, but he doesn't tell the truth and he doesn't tell the whole truth.

4:50 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Did the Prime Minister or his office respond to that letter?

4:50 p.m.

As an Individual

Donald Bayne

It was in a kind of a generic way: “Thank you, Mr. Bayne, for your letter.”

4:50 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Have you ever had a chance to write a similar letter to the justice minister?

4:55 p.m.

As an Individual

Donald Bayne

The justice minister, I believe, has this letter. I met him. I had a face-to-face meeting with him and asked him—because of all of this—to undertake a review of the current law.

4:55 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

When did you do that, sir?

4:55 p.m.

As an Individual

Donald Bayne

This is 2023. Dr. Diab came back to Canada in 2018, so I would say it was that year or the next year.

4:55 p.m.

Conservative

Larry Brock Conservative Brantford—Brant, ON

Okay.

There was some reference as well in my briefing notes from the Library of Parliament that the government may have made certain amendments or were prepared to look at certain reforms to the Extradition Act. To your knowledge, since you defended Mr. Diab, have there been any changes to any parts of the current Extradition Act?

4:55 p.m.

As an Individual