Justice Committee on Feb. 8th, 2023

[Janet Henchey]

Yes, it is an issue, and that's one of the reasons we want extradition to move on a expeditious basis. If we were to change the law to require witnesses to be heard and cross-examined, we would never finish our extradition hearings in any kind of reasonable time frame. An average extradition in which the person goes through all of those stages takes 18 months to two years. In a very litigious case, it can go on for 10 years. That's not the average, but it's happened.

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

You're saying an average case will typically be 18 months to two years, but it can go on for 10 years. I imagine that also depends on funding and things like that.

[Janet Henchey]

That's right, yes.

The big red sign is up.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

We'll go to our final round of questions and Ms. Diab. You have five minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thanks to the witnesses. I think this has been the second or third day that we're hearing from you, so we appreciate your coming. I know you have a wealth of knowledge.

We've talked a lot about this, but can you tell me about the intersection of the Department of Justice and the Department of Foreign Affairs in the case of extradition? How do they work together, particularly when an individual's been extradited outside Canada?

[Janet Henchey]

I'm not sure if you're asking how we deal with a request from the beginning to end. Are you asking where the Department of Foreign Affairs comes in and where the Department of Justice comes in?

[Lena Metlege Diab, Liberal, Halifax West, NS]

Yes. Particularly, I guess, I'm concerned when there are human rights violations or there are things happening when the individual hasn't left yet. Do we investigate the country they're going to in terms of whether we should obtain conditions or what they're going to do when the person is there? As well, when they actually arrive in the other country, what happens there?

[Janet Henchey]

When we first receive a request, if it's not from a country that we're very comfortable with and used to dealing with, the first question we ask ourselves is, “Is this a country that we could send somebody safely to?” That will involve consulting with our partners at the Department of Foreign Affairs to ask them what information they have about the conditions in this particular country. If it's not obvious that there's a problem, that may lead us to move on to the next stage, but our first step is to consult with the Department of Foreign Affairs when we're dealing with a country that we're not 100% comfortable with.

Then, as the process goes on, if we don't put an end to it at the outset because of issues, we will, when we get to the ministerial stage, again consult with the Department of Foreign Affairs and consult some of the reports that Mr. McSorley was referring to—human rights reports—to get a sense of what the circumstances would be for this person in the foreign country. The Department of Foreign Affairs is very much involved in that discussion.

Then, if the person is extradited, sometimes they're extradited conditionally, pursuant to assurances. As I mentioned earlier, the Department of Foreign Affairs is responsible for basically dealing with those assurances. If we ask for oversight over the trial, it would be somebody who would be in our mission in that country who would attend the trial to observe, to make sure. Consular affairs are handled by the Department of Foreign Affairs, and Canadian citizens have the right to consular services while they're serving a sentence in another country, so once they're moved to the other country, the Department of Foreign Affairs has the lead.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you.

Are you familiar with the Halifax proposals for law reform that were done at the end of 2021?

[Janet Henchey]

Yes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Can you comment on those from your perspective? Are there any that you believe we should be adopting? Can you help this committee to see how we can make our laws better in this country?

[Janet Henchey]

First of all, it wouldn't be appropriate for me to comment directly on the Halifax proposal.

I have reviewed it and I am familiar with some of the things they're proposing. What I would say is that it's one perspective. I'm not saying that it's not valid, but it's not the only perspective. It's coming from a particular viewpoint, and in order to make any determinations about what would need to be done and whether anything needs to be done to change our law, we'd want to look at a broader range of views. We'd look to foreign partners. We'd look to prosecution services and police as well as the viewpoint they have put forward in this particular report.

There are a lot of different things that are raised. One thing I note in the report that I found somewhat surprising is that there's an emphasis on the need for us to put more things before the courts. As I mentioned, the courts are very much involved in extradition cases, but at the same time, it's saying that the courts should have a greater role. The report disagreed with a great many decisions out of the Supreme Court of Canada and suggests that we should legislate differently from what the Supreme Court has said. That's a surprising aspect of the report, from my perspective.

There are a number of things I've mentioned that are not consistent with what I understand to be the principles of extradition. The presumption of good faith is a fundamental presumption of extradition. We refer to it as “comity”. Without it, you can't have extradition: It means that you don't trust anybody else.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Further to that, I guess, what happens in our country in our system when there is a presumption on our part that what we're presented with is reliable and then at one point we find out that it's not?

[Janet Henchey]

Any presumption is just that. It doesn't mean that it can't be set aside. It doesn't even necessarily need to be set aside by an argument from the other side. We could review something that we presume is reliable, but if we look at it and think, “I don't quite understand that, and that's problematic”, we go back to the foreign state and ask them for input.

It's a very give-and-take process. Saying that there's a presumption of reliability is a starting point, but it's not the end point by any means.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Ms. Diab.

Thank you to all of the witnesses for once again coming back because of our technical difficulties last time. You are now dismissed, as we have some committee business.

Committee members, a budget for witness claims for our current study should have been sent to your inboxes to be adopted. Does anyone have any questions in this regard?

Mr. Clerk, are we all okay with the budget?

[The Clerk]

It seems so, Mr. Chair, as far as I can see.

[The Chair, Liberal, Randeep Sarai]

We're all good. The budget is passed. We will see you next week. Thank you. The meeting is now adjourned.