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.
6:05 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
When the case is prepared and the state is ready to hold the trial, it can request the transfer of the foreign national. Personally, that seems reasonable, but perhaps I'm missing something.
Do you believe this is reasonable?
6:05 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
I think that the word “reasonable” is reasonable. I agree with that point. It is not unheard of that someone would argue, “You can't send me to this country because I'm not going to get tried within a reasonable time.” We would go back to the country and ask, “Do you have laws about ensuring that somebody is tried within a reasonable time?” For example, the United States has speedy trial laws, and we refer to this pretty regularly when people raise concerns about that.
I think it would be unduly restrictive to insist upon a particular time period, because there are so many things that you cannot predict about how a trial is going to unfold.
6:05 p.m.
Bloc
6:05 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
I can't really respond to that.
6:05 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you.
Next we will go to a two-and-a-half-minute round with Mr. Garrison.
6:05 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you, Mr. Chair.
Of course, I'd like about two more hours, so I'm going to have to choose the questions I would like to ask.
I do want to say, Ms. Henchey, that with regard to your opening statement that other witnesses were suggesting that it should be a trial, I don't think that fairly characterizes their suggestions.
I want to ask about the surrender process.
In the law, there are certain things the minister is required to consider, and there are other things that are left to the minister's discretion. One of the concerns I have is that the list of required considerations doesn't match the Canadian human rights code. In other words, in the Canadian human rights code, we have things like gender identity and gender expression that you might expect to be included in things the minister must consider before a surrender decision.
Can you tell me how that operates this time, since that list is different?
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
Yes, I can.
As you can imagine, that's the case with a lot of Canadian laws. At a particular point in time, there's an enumerated list of grounds of discrimination. As time progresses, that changes and expands. There are a great many different laws and agreements that don't list everything that we would consider to be a ground of discrimination in today's day and age. However, that's covered by the fact that extradition has to be in compliance with the Canadian Charter of Rights and Freedoms. Even though it's not listed in the Extradition Act, the minister is bound by the Canadian charter.
One of the provisions that is mandatory is that the surrender cannot be “unjust or oppressive”. “Unjust or oppressive” has been found to be contrary to section 7 of the charter, so it's contrary to fundamental justice. Those extra provisions that are not specifically listed in the Extradition Act would be covered by the charter.
6:10 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
If someone felt that hadn't been considered but should have been—and I'm going to stick to gender identity, because I think that's one area where people are at great risk outside Canada—is that omission reviewable?
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
Yes.
A person generally raises the concerns they have. For example, there was a case that took place in Mexico some years ago. The individual was gay, and he was concerned about how he would be treated in prison in Mexico. We ultimately ended up getting an assurance from Mexico about his treatment, and he was not mistreated when surrendered.
A person raises the concern. The minister takes it into account. The minister has to issue written reasons. If his written reasons don't sufficiently address that concern, it can be judicially reviewed—and often a minister's decision is judicially reviewed—and the court would address that. If the court was unsatisfied with the minister's failure to address a fundamental right under the charter, then it would be returned back to the minister for him or her to reconsider that and explain the circumstances.
6:10 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
When the chair is virtual, it's tempting just to not look at the screen and to continue.
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
I'm sorry. I didn't notice.
6:10 p.m.
NDP
6:10 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Garrison.
I will now go to the last five-minute round. We'll begin with Mr. Caputo.
6:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Thank you, Mr. Chair.
I really want to put this issue to bed.
This is for the two witnesses: Do you have an obligation to disclose any exculpatory evidence?
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
I would say yes, but the reality is that we're not.... It's a weird question, because this isn't a trial and we don't possess all the evidence. We get what we receive from the foreign state and we disclose it.
6:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Okay, what I'm getting at is this. If you have exculpatory evidence in your possession or within your control, do you have a duty to disclose that?
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
I would say we have an ethical duty to disclose it, so yes.
6:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Okay, that's what I was 100% getting at, and that would be in accord with my understanding.
You've heard a lot here. It sounds like you've listened to testimony and all that, and obviously you bring a fresh set of eyes to this. Is there anything you've heard thus far that you think you'd really like to clarify?
The floor is yours at this point.
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
I wasn't ready for that question.
6:10 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Well, frankly, you know this area better than I do, so I would prefer to hear from you if there's anything you want to clarify, because you're the one who knows this area. I can ask you a specific question if you'd like, but, to me, it's important to hear your perspective.
6:10 p.m.
Director General and Senior General Counsel, International Assistance Group, National Litigation Sector, Department of Justice
One thing I wanted to mention is that extradition is an area that's very heavily litigated, so the thought that somehow people's rights are being ignored ignores the fact that it's very heavily litigated. It's also gone to the Supreme Court of Canada for a subject matter opinion more often than lots of other areas of the law, so we have a lot of guidance from the Supreme Court of Canada. To suggest that the Minister of Justice is running wild, doing whatever he wants to do, and can get away with it because he has this massive discretion....The discretion is to operate within the realm of the law. If he's stepping outside of what the law requires, then he's going to be overturned by the courts.
On many occasions we have been given guidance by the Supreme Court on how to deal with particular aspects of extradition, so although the law sets out the terms, we've had the standard of review determined by the Supreme Court and we've had how to deal with defences in foreign countries determined by the Supreme Court. The Supreme Court explained how we are to address determining double criminality, what the rules are with respect to surrendering a Canadian citizen in the event that they're sought for extradition, what we do with refugees. Not the Supreme Court, but the Ontario Court of Appeal provided us with guidance on how to deal with indigenous persons who are sought for extradition. This is not some wild free-for-all. There's considerable judicial oversight, and we've been given a lot of guidance by the Supreme Court that has helped to put in place this system in a way that protects the rights of others.
I also want to mention, because it seems to have been suggested that we have a system in Canada that provides for no rights for anybody compared to other systems, that Canada has one of the most rigorous extradition systems in the world, if not the most rigorous, and we're familiar with this because we deal with all these other countries. Lots of countries have a very pro forma approach to extradition. You just say, “We want this person for this particular offence. They've been charged, and we have a treaty”, and off you go. Among European countries, there's a “no evidence” rule, so they just extradite among each other without any requirement for any evidence to support extradition. I'm not sitting here telling you we should do it that way; I'm just telling you that it would be wrong to suggest that the Canadian extradition system is some kind of Wild West of extradition and that around the world everyone else has greater rights. We have one of the most robust extradition systems in the world.
6:15 p.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Thank you. That's very helpful.
When we talk about different ways of doing things, in law one of the biggest issues you have is the clock. Things take time. You just mentioned that you have a decision, you have a review, you have an appeal, you have an appeal of the minister's decision, and potentially appeals of that appeal. How long does the average extradition take? Is that an issue we have to consider, especially when we consider deterioration of evidence, such as people dying?