Justice Committee on Feb. 8th, 2023

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

My briefing notes also have a reference that the Extradition Act was meant to modernize the system, simplify the system, reduce the delays, but it still had to be compliant with the charter. Given your opening, and given what I know about this case, it can't be further from the truth. Can you specifically outline the deficiencies, in terms of the charter violations, that currently exist with respect to our Extradition Act?

[Donald Bayne]

This letter does that. It talks about the folly of basing a system, when the liberty of Canadians is involved, on unsworn material that is presumed to be reliable but can't be tested and when there is no obligation by the requesting state to show exculpatory evidence.

Let me add this: There's no full disclosure made here. They can pick and choose foreign states. We just trust them to be as honourable as Canadians would be.

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

These are section 7, section 9, section 11 violations.

[Donald Bayne]

Absolutely, and even on the question—

[The Chair, Liberal, Randeep Sarai]

Mr. Bayne, I'm going to have to end it there. We're a little bit over time.

Thank you, Mr. Brock.

We'll go over to you, Mr. Naqvi, for six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you, Chair.

It's good to see you again, Mr. Bayne. Thank you for being present and thank you for all the advocacy work you do in the legal community. Mr. McSorley, welcome.

I'm very sympathetic to the Diab matter, as I've said to the committee before. I know Mr. Diab and the family quite well. However, I'm also a little hesitant to relitigate that particular matter at this committee.

Of course, the case is instructive to us from a policy perspective as to what lessons were learned. I want to maybe move away from the actual and precise aspects of that case to some of the policies you may be advocating as we look at recommendations in this particular report.

To that, Mr. McSorley, towards the end of your presentation, I believe there were about five different points that you raised that we should be considering.

Do you want to take some time to at least highlight two or three of those recommendations that you think are important and explain why they are important and why we should be considering them?

[Timothy McSorley]

I'll focus on the ones that I think more closely relate to the mandate of ICLMG and perhaps leave some of the others to Mr. Bayne.

As I mentioned in my opening, it's incredibly important that the system be modified so that international human rights and civil liberties obligations are explicitly taken into account. As I noted, the review of France's anti-terrorism laws clearly presented violations and concerns around the convention against torture and Canada's commitment to fighting torture, and yet that was not adequately considered by the court at the time.

There was a more recent case that we weren't involved in, the Boily decision. Essentially an individual was extradited to Mexico, where he would face torture. He raised those concerns, and that was ignored when he was extradited. In fact, he was just awarded $500,000 from the Canadian government in a civil suit because of the fact that his rights were violated. We believe that should be a key point of consideration.

On Monday, Professor Harrington spoke at length about the need for increased transparency, and we agree with that as well. We believe there needs to be greater transparency in reporting from the government on the number of extraditions, the types of extraditions and the cases there are, because there's a lack of clarity and a lack of understanding among the public.

Even in our advocacy work, it's difficult to ascertain exactly how many extradition cases happen and on what grounds. There was a CBC article that demonstrated, through access to information, that in Canada close to 99% of extraditions—at least to the United States—are agreed to. That was pieced together only through their diligent research. It's not information that's easily accessible.

Finally, as has been brought up, countries often give their assurances that they will move forward—for example, in the case of Dr. Diab—with cases on a timely basis, that they won't violate rights and that their systems are compatible with Canada's, but we find that Canada has dropped the ball in terms of ensuring from our own perspective that states are upholding civil liberties and human rights in their justice systems. As I mentioned, there have been findings by the special rapporteur on counter-terrorism and human rights at the UN that several of Canada's extradition partners have introduced and adopted anti-terrorism laws that violate fundamental rights.

A fundamental review needs to be done of Canada's extradition agreement. It should be put in law, we think, that Canada will not enter into extradition treaties with countries that are found to be violating human rights, both domestically and internationally, in human rights law.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Are these recommendations aligned with the so-called Halifax proposals?

[Timothy McSorley]

In general, yes. We've worked closely with Professor Currie, and I believe they're all in line with the recommendations of the Halifax colloquium too.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Mr. Bayne, do you have some specific suggestions, in light of your experience not only in the Diab matter but in other extradition matters, that would be a significant improvement to our extradition laws?

[Donald Bayne]

I do, Mr. Naqvi. There are four, I would say, to redress the imbalance.

The first is the most important, and that's to do away with this unreasonable presumption of reliability of third hand hearsay, and instead put the onus on the requesting state rather than on the individual Canadian to prove the reliability of the evidence on which it relies, at least on a balance of probabilities—not beyond a reasonable doubt, just on a balance of probabilities.

The system now has a reverse onus on the Canadian, the person sought, and they have to prove it to what has become to be interpreted in the courts as an unattainable standard called “manifest unreliability”. The Diab case didn't achieve that, even though the judge said this handwriting evidence, which the whole case ultimately hung on, was clearly unreliable. Every leading expert in the world said so. France has now said so, in a separate analysis of their own report. Their own experts now say on that report that got him extradited, “We agree entirely”—that's the quote—with the defence experts who gave evidence.

They create a catch-22: That reverse onus and the presumption of reliability create a catch-22 for citizens in this country, for people in this country, that can't be met. It's simply a crazy situation.

The other three are these: When you're relying on expert evidence, there should be full disclosure of that, full disclosure of exculpatory evidence and full disclosure of all evidence sourced in Canada. That didn't happen in the Diab case.

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Donald Bayne]

There are two more, but—

[The Chair, Liberal, Randeep Sarai]

Thank you.

Hopefully we'll be able to get that out of you in the next questioning.

Monsieur Fortin, you have six minutes.

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

Thank you, Mr. Chair.

Mr. McSorley and Mr. Bayne, thank you for being here with us today.

Mr. Bayne, please finish the answer that you were giving to my colleague, Mr. Naqvi. I believe you were saying that you had four specific recommendations aimed at amending the current act. I would like to hear what you have to say on the subject.

[Donald Bayne]

Thank you, Mr. Fortin.

I wouldn't say there are only four, but these are four that are, to me, critical if the system is going to work.

Number three is that if the requesting state, such as France, does not in fact reciprocate with Canada by extraditing requested citizens to Canada, Canada should not extradite its nationals to such a requesting state.

I give the example of the French priest—you may recall this case recently—wanted for multiple sexual assaults against young people in Canada years ago. France refused to participate in that process, saying, “Oh, that's too old.” That case was no older than Diab's case.

That's the third one, true reciprocity. Extradition is said to rely on comity, but there is no comity or reciprocity with France on extradition of nationals.

The last one, Mr. Fortin, is extradition only for a trial that is ready to proceed within a reasonable time, not for further investigation. We thought that was the law. We pointed that out to the court of appeal and the Supreme Court of Canada, and they still let this happen. Of course, three-plus years in solitary confinement resulted.

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

Thank you, Mr. Bayne.

I understand that your first condition dealt with the burden of proof and the requirement, from the get-go, for sufficient evidence on the balance of probabilities. The third condition was one of reciprocity. The fourth condition was to hold a trial within a reasonable timeframe. The second condition escapes me, however. Could you repeat it, please?

[Donald Bayne]

I meant by the final one that there be extradition only for a trial that is ready to proceed within a reasonable time—

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

That's the fourth one.

[Donald Bayne]

—and not for any further investigation. That's the fourth one. That's what happened here.

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

Yes, but what was the second condition?

[Donald Bayne]

The second one was full disclosure, to the person sought, of any expert evidence the requesting state requires. Any exculpatory evidence—evidence showing innocence—should be disclosed; and certainly all evidence that is produced in Canada and doesn't come from abroad, whatever that evidence is, should be subject to the normal constitutional Stinchcombe rules of disclosure in Canada.

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

Thank you.

Have you held any discussions with lawyers from other states to see if these conditions would be acceptable or not? I am thinking of France and Mr. Diab's case.

[Donald Bayne]

I discussed it with Jacqueline Hodgson, who is the leading British expert. She teaches at the University of Warwick. I went to England and went up to Warwick to meet her in preparation for the Diab case. She was hired by the Tony Blair government when it was considering mimicking French anti-terrorism law and the use of intelligence as if it were evidence, which was going on in the Diab case. She has taught French law in France. She's fluently bilingual.

She made a study for the Blair government and the Home Office in the U.K. about the provisions that we, for example, have in our act permitting reliance on this unsourced, unidentified intelligence evidence. She found it would be in violation of.... I can't remember whether it's article 5 or article 6 of the European Convention on Human Rights.

That's as far as I went, Mr. Fortin.

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

Have you had any discussions on this issue with the French authorities?