Justice Committee on Feb. 13th, 2023

[Anand Doobay]

I'm certainly not an expert on Canadian law, so I'm not in a position to really comment on that. I've read some academic discussion that said that there is, in Canadian case law, a distinction between prosecutors acting in a domestic criminal case, and the role they fulfill within an extradition process. You'd have to address that question to somebody who is a Canadian expert on extradition law.

The only point I was making was that U.K. case law is very clear that within the U.K. system, even though domestic prosecutors bring the case on behalf of a foreign government, they have a duty to act, and, more specifically, they have a duty to disclose evidence that they know about, and which might destroy or undermine the evidence on which the requesting state relies. That duty overcomes their duty that they might owe as a lawyer to their client, because obviously, in that situation, they are essentially acting as a lawyer for the client, the requesting state.

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

You were specifically chosen by a member of this committee to provide evidence to aid this committee in reviewing our current extradition laws, and provide a study to the government as to what recommendations, if any, should flow.

In terms of your preparation for today's appearance, did you do any thorough examination of Canada's current extradition laws with a view to perhaps suggesting ways that Canada has been contrasted to the system in the U.K.? Do you have some suggestions on ways that we can improve our system to achieve that proper balance that most countries, which do engage in extradition processes, try to achieve?

[Anand Doobay]

I did do that, and that is why I've highlighted some of the issues. I've reviewed some of the testimony about the existing system in Canada. Whilst I'm not an expert on Canadian extradition law, those issues have led me to highlight for you some of the reforms we have put forward in the United Kingdom in case they are of assistance to you. You may be dealing with the same issues.

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

One of the pieces of evidence that I've reviewed in advance of your testimony is an excerpt of a committee hearing on extradition that you participated in in the U.K. House of Lords back in 2014. I appreciate it is some time ago, but I think one of the questions put to you still has application today. It was a question put to you by Lord Jones. I'm going to read out his question to you. and then I may modify the question I ask of you afterwards.

Lord Jones says:

In the Baker review, you wrote that extradition is a form of international co-operation in criminal matters based on comity intended to promote justice. Do you still subscribe to this view and, since you wrote that sentence, do you feel the Government have focused too much on achieving efficient international co-operation on extradition and focused too little on ensuring that the UK's extradition arrangements are just?

Applying it in a Canadian context, sir, how would you respond?

[Anand Doobay]

As I say, I'm not a Canadian extradition lawyer, so from my assessment of the issues that I've seen raised in the context of Canadian extradition arrangements, the one that I think is common to Canada and the U.K. is this issue of diplomatic assurances. I think this is an issue that is going to cause difficulty for all countries trying to resolve the tension between a need to co-operate and to protect individuals.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll go over to you, Ms. Brière, for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

I thank our two witnesses, Mr. Doobay and Madam St-Laurent for being with us this afternoon.

Mr. Doobay, I will ask you my questions in French.

In your opening statement, you asked a question: Where should a person be prosecuted? Could you please elaborate?

[Anand Doobay]

To my mind, that is the most important question, because I do not believe anybody thinks that people should be allowed to get away with committing a crime and not be prosecuted for it. For those cases where there is sufficient evidence to suggest that somebody should face trial, I think that the most important question is where they should face trial.

In the U.K., those decisions are generally taken between prosecutors of different countries. It is certainly unclear to me to what extent they take account of the suspect or the defendant when making that decision. My concern is that ordinarily they only prioritize their desire to successfully prosecute somebody or their desire to obtain the maximum penalty they can. What they don't take into account in the balancing process is the effect on the person of being taken out of the country where they reside and where they are familiar with the system, and being put into another country in order to be prosecuted there.

I think it is [Technical difficulty—Editor]that as well as looking at the extradition process, you also look at the system for deciding whether somebody should be prosecuted. In an extradition context, it is very unattractive for an extradition court to say, “I'm going to stop tradition. This person is not going to be prosecuted anywhere...even though there appears to be sufficient evidence to suggest they should be prosecuted.”

I'm referring back to one of the earlier comments. There are countries that do say that for their nationals or their citizens. They will refuse extradition, but they will prosecute them instead. They are not rendered immune from prosecution, but they are then prosecuted in the country where they live or where they ordinarily reside and in a system they're familiar with.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much. That's very interesting. I have two sub-questions.

You said just now that effect of extradition isn't necessarily taken into account. Earlier, you were talking about the effect on children specifically. At a previous meeting, we heard testimony from Mrs. Diab, who said that her husband had been extradited and that the children were in Canada. The family spent years apart.

Do you have any other examples of similar effects you could tell us about?

[Anand Doobay]

In the United Kingdom, a Supreme Court case has established that the court, in extradition cases, must take into account the impacts of extradition on children. Obviously, there's always an impact, but it can't simply be that the child is deprived of the care of their parents. It has to rise to a more severe level before the court will say it's sufficient to bar extradition. For example, it might be there are no care arrangements in place for the children, because both parents are being extradited. That would leave them with no one to care for them. Even then, the Crown will look at whether there are alternative care arrangements that could be made, through foster parents or other types of things.

The other types of issues related to children that can lead courts to find it's not proportionate to extradite are medical conditions and mental health issues—something that rises above the ordinary. I'm using that advisedly, because, obviously, it's terrible for children to be separated from their parents. However, the court has to be satisfied there is something more than what would normally be the case, were a child to be separated from their parent because they've been extradited.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I have 30 seconds left.

You were talking about torture earlier, saying it's necessary to assess whether there's a real risk of torture. It's not easy to assess that risk, is it?

[Anand Doobay]

I'm sorry. I didn't hear the question.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

You said earlier that it's necessary to assess whether there's a real risk of torture.

What's the process for assessing whether there's a real risk?

[Anand Doobay]

Ordinarily, the court will look at NGO reports, country reports and U.S. State Department reports to see whether there's a prevalence of torture that has been independently verified. You would have to establish a general pattern, then you would normally have to identify how that could apply to your particular client. You would have to share how they fall into a category of people who [Technical difficulty—Editor] subject to torture.

It's firstly a question of establishing general objective evidence, then applying it [Technical difficulty—Editor] your client, in terms of showing why they are also going to fall into one of those at-risk categories.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

We'll now go to our last rounds of two and a half minutes each, beginning with Monsieur Fortin.

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

Thank you, Mr. Chair.

Mr. Doobay, you just explained the steps in the process to Mrs. Brière. Does the process work? Do you think it is in fact possible to accurately assess the risk of torture in a foreign country?

[Anand Doobay]

It is difficult, but I think it should be difficult to prove there is a risk of torture.

The other thing we often use, in the U.K., is an expert witness. Once you have the objective material showing torture can be prevalent in particular countries, in particular situations [Technical difficulty—Editor] show it may apply to an individual. Ordinarily, the court is assisted by somebody who is an expert in that country, one who can say, “Look, I'm applying the generalities to this specific individual and, in my opinion, this individual is at risk of torture.”

It's difficult to do, but I think the greater problem is the one I highlighted earlier: that this is now routinely met with a diplomatic assurance. Even if the risk exists, there's no need to be concerned about it, because they give you an assurance it won't happen in this particular case.

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

Thank you. I don't have much time left, so this will probably be my last question.

I wonder if you could explain to me the distinction that's made in the United Kingdom between extraditing a U.K. citizen and extraditing a foreign national.

[Anand Doobay]

There are two ways this can make a difference.

The first is in relation to foreign [Technical difficulty—Editor], because, if you can pass through the gateway of a substantial measure of conduct happening in the U.K, one of the criteria the court has to take into account is the person's connection to the United Kingdom. Obviously, a U.K. national or resident is going to have stronger connections than somebody who is not.

The second way this can be relevant is through article 8: the rights of private and family life. That is part of a balancing exercise. As I said, ordinarily, the court is going to find that the rights of private and family life are outweighed by the need to have effective extradition arrangements. However, in a rare situation, the court might find that the person's nationality, residence and rights of private and family life outweigh the—

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

I'm sorry to interrupt, but my time is almost up.

Do you think a resident of the U.K. and a foreigner should be treated differently, or should the same rules apply to both?

[Anand Doobay]

In my view, I think that there should be some factors where nationality and residence do have more weight. Private and family life [Technical difficulty—Editor]. The right to be prosecuted in a particular country is another, so I do think there are some instances where it should be a factor to be taken into account.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Lastly, we go to Mr. Garrison for two and a half minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I'm going to stay with Mr. Doobay.

In your opening presentation, you made reference to an obligation to disclose possibly exculpatory evidence. I'm not sure how that actually operates since you've also told us that in the U.K. generally no evidence is required for extradition requests.

Could you simply come back to that point and explain the intersection there?

[Anand Doobay]

Of course.

The obligation only exists if the prosecutor in the U.K. is aware of that information. As you rightly say, in many cases they won't be because the requesting state has to provide [Technical difficulty—Editor] evidence or a very limited amount of evidence. The obligation can only arise if they are [Technical difficulty—Editor] something in the course of acting for the requesting state that does undermine the evidence that they've already been given and have put forward to the court.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

With regard to your last point in answer to my question, I think you were onto something very important for this committee to be considering, and that's the balance between the role of judges and the role of minister.

If I understood you correctly, really the role of minister has been reduced in the U.K. to dealing with three things that are judged to be more political, and most of the other legal decisions then moved back to the judge and the extradition proceedings. Is that correct?