Justice Committee on Feb. 8th, 2023

[Voices]

Oh, oh!

[Donald Bayne]

It's not what strikes me as being at the heart of what's wrong here.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Okay. That's what I'm getting at.

I find this issue of disclosure interesting and troubling. How is it that what is produced in a Canadian investigation is not disclosable? Can you walk us through that? To me, it doesn't feel right.

[Donald Bayne]

I think the way to answer that is to read to you the provisions of the Extradition Act. Subsection 32(2), “Exception—Canadian evidence”, provides that you don't need to disclose to the requesting state all of the evidence.

Evidence gathered in Canada must satisfy the rules of evidence under Canadian law

—that would include the Stinchcombe law of disclosure—

in order to be admitted.

That is the catch. The Department of Justice can decide not to put it in. “We won't tell them about it. We're not trying to admit it, so we don't have to disclose it.” That's the problem.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

That's interesting, in that the threshold for disclosure lies exclusively with the state—and by that I mean the government and the government lawyer—and if the government lawyer chooses to not rely on that information.... It's not an issue of whether it may be relevant; it's actually an issue of whether it will be admitted or tendered.

Do I have that right?

[Donald Bayne]

That's right.

What's the cost? The prosecutor makes a cost-effective analysis: “Is it worth more to me if I disclose it and try to have it admitted, or is it actually going to harm my case?” In that case, you don't disclose it because you're not going to rely on it.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

This is interesting. I don't know if you used the term “prosecutor” there. Is that the term you used just a second ago?

[Donald Bayne]

It is.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Some of us here have done prosecutions, myself included. A prosecutor is supposed to be an independent minister of justice who seeks truth rather than a conviction or a certain outcome. To me, there is certainly a tension between seeking the truth and choosing not to disclose something that may otherwise be exculpatory.

You probably have no time to.... I leave you with that.

[Donald Bayne]

I agree with you. Crown attorneys who adopt that approach are valuable and do a wonderful service in our justice system.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Bayne. Thank you, Mr. Caputo.

The next five-minute round goes to Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair.

Let me thank both witnesses for the enormous work they have done.

There was a lot of discussion here on Dr. Diab's case, and you've outlined many of the concerns that can be drawn from that.

I'm wondering if you could both comment on the Meng Wanzhou case. I know there was a case of extradition as well in that regard. I'm wondering if there are any lessons that can be drawn from there that may be relevant to the discussion we're having today.

[Timothy McSorley]

In the course of our work, we haven't analyzed the Meng Wanzhou case because it doesn't deal with counterterrorism issues.

I'll leave it to Mr. Bayne.

[Donald Bayne]

Meng is an interesting case that you raised. The argument is always made by the Department of Justice lawyers who work in this field that, “Oh, we need to cut down these rights”, or “These won't be expeditious hearings.”

They are not expeditious hearings. They're not expeditious because there is so much argument all the time about what exactly a judge is allowed to assess here.

Look at the Meng case. How long did that go on? It went on forever, because China could pay for interminable arguments about reliability and so on. I say “China” because I know a little more about that case.

If we had a clear-cut system with a clear-cut onus on the requesting state to establish reliability on a balance of probabilities, judges know how to deal with that. They do it all the time. That's the judicial function. A judge would control that kind of hearing. It would move more expeditiously than the way they're unravelling now, with lawyers desperate to find something to argue in the current system. They are not expeditious hearings. That's a lesson from the Meng case.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Going on to the issue of treaties with a number of countries that we have—I think it's over 51—I noticed, for example, that Haiti is on the list. Haiti is going through some severe challenges right now.

To follow up from Mr. Garrison's comments, what is the test for us to determine whether a country is equipped to have a fair trial in their country? Even if we have a treaty, what are the benchmarks we need to keep in mind for us to proceed with an extradition?

[Timothy McSorley]

A key indicator could be looking at reviews such as what Human Rights Watch puts out, and Freedom House, Amnesty International and the international reports of human rights organizations. Global Affairs Canada regularly does assessments of the rights situations in various countries. I think we could be looking at and analyzing those to see, beyond the counterterrorism issues, problems within the judicial system and whether there are reports on whether individuals are facing fair trials or are facing abuse or rights violations while in custody. That's a big question.

As we heard, Dr. Diab spent three years in custody, and others have spent time in custody after being extradited to places where their rights were violated. It's not just in the judicial system: Canada has standards, ostensibly in the Extradition Act, that the laws of the country we're extraditing to must also meet the standard of our own laws. We should be looking at that more closely.

You mentioned Haiti, which is one of two countries, along with India, with which Canada has extradition agreements. It has signed but not ratified the convention against torture. Looking at which human rights treaties they have signed on to and what their record is would provide a tangible analysis of their system.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

How about the systems that they have in place?

[The Chair, Liberal, Randeep Sarai]

Mr. Anandasangaree, unfortunately, we're out of time.

We're going into the last round. We'll begin with Monsieur Fortin for two and a half minutes.

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

Thank you, Mr. Chair.

Mr. McSorley, I found your answer to the last question very interesting.

You stated earlier that 10 or so countries do not respect human rights, including France and Austria. I did not quite understand your position on the criteria that would allow us to determine if a state guaranteed or not a minimum threshold for fair proceedings.

In your opinion, are there criteria that we should use to evaluate a situation in a foreign country?

[Timothy McSorley]

I don't have a list with me now, but I would say that at the very least, we should check if there have been abuses within the criminal justice system.

I will continue my answer in English, because that will be quicker and I know that we haven't got much time.

It's looking for violations while people are in custody. It's looking for issues around allegations and reports of torture while in custody. It's looking at issues around what kind of evidence can be introduced in court, including unsourced evidence or evidence that's obtained under torture. It's also looking at whether or not the laws being used are used in a way that respects the international covenant on the protection of civil liberties.

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

In the case of France, why do you believe that this is not a state that respects human rights? What are the conditions that France does not meet?

[Timothy McSorley]

Very specifically, it was around France's counterterrorism laws. For example, there's the ability to use unsourced information that could be derived from torture. It's been demonstrated that French counterterrorism judges allow that to be introduced into evidence and don't appropriately probe the validity of that information.

We know that it's a violation of the convention against torture, and it demonstrates one of the criteria that we think should exclude extraditions on the basis of counterterrorism prosecutions.

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

Should the same rules and processes used for extraditing a Canadian citizen be used when it comes to extraditing a foreign citizen?

[Timothy McSorley]

I would say, first and foremost, that the protection is for Canadian citizens. Canada has a duty, for example, under the convention against torture, to not deport or extradite a single person to torture or to situations in which they would be faced with evidence obtained under torture. I believe that it should apply to non-citizens as well.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

We'll go to Mr. Garrison for two and a half minutes.