Evidence of meeting #49 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.

On the agenda

MPs speaking

Also speaking

Anand Doobay  As an Individual
Clerk of the Committee  Mr. Jean-François Lafleur
Michelyne C. St-Laurent  Lawyer, As an Individual

3:50 p.m.

Liberal

The Chair Liberal Randeep Sarai

I call this meeting to order.

Welcome to meeting number 49 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108(2) and the motion adopted on January 30, the committee is beginning its study on extradition law reform.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking. If you are participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

For interpretation, those on Zoom have the choice, at the bottom of their screen, of “floor”, “English” or “French”. Those in the room can use the earpiece and select the desired channel.

I remind everyone that all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

I will use some cue cards. For those who are not familiar with this, when you're closing in on 30 seconds, I will raise the yellow card. When you're out of time, it's the red card. I ask that you try to complete your submissions, questions or answers within the time period, so I don't have to interrupt you. Otherwise, I advise that you keep tabs on the clock on your own.

For the first hour, we are concluding the witness hearings for our study on extradition. We wish to welcome, as an individual, Mr. Anand Doobay, by video conference. I think we're working on one other panellist. Ms. St-Laurent is having some technical difficulty, so we may have to suspend if it's not corrected by the time Mr. Doobay finishes.

We'll begin with you, Mr. Doobay. You have five minutes for your opening statement, then we'll begin a round of questioning.

Thank you.

3:50 p.m.

Anand Doobay As an Individual

Good afternoon, and thank you to the committee for inviting me to give evidence.

I think the questions the committee is examining are drawing out some of the inherent tensions that exist within the extradition system. The need to ensure effective co-operation for prosecution and punishment of criminal offences has to be balanced against the need to protect civil liberties and human rights. The United Kingdom has grappled with these issues on a number of occasions.

In 2010, I was appointed to be part of a panel to review the United Kingdom's extradition arrangements. When undertaking this task, we were very aware that we had to take into account the potentially serious consequences for a person who may be sent to face trial in an unfair legal system where they may in fact be dealing with a language they do not speak and with little or no support from family, friends or their community.

We also looked at the fact that we wanted to try to recognize the potential shortcomings of the extradition system itself and the requesting country, while not allowing this to become a complete bar to extradition, except in extreme situations. This can be made more difficult when decisions are made during the extradition process by politicians because these are often interpreted by the requesting state as being diplomatic rather than judicial decisions. They can lead to potential diplomatic repercussions.

In today's world, with globalization and technological advances, it is increasingly common that more than one country may have jurisdiction to prosecute. This is leading to increasing public debate as to how the question of which country should prosecute is decided and extradition cases can often cause this issue to come to the fore.

I thought it might assist the committee if I explain very briefly a few of the changes the U.K. has made to its extradition law to deal with specific problems it has faced.

In particular, there was an issue in relation to requests from other EU member states because they have what's called the “principle of legality”. That means they will make a request for any extradition offence, no matter how minor it might be, because there is no discretion involved in deciding whether to make a request. That led the U.K. to be concerned that extradition was being granted for what may be seen to be relatively trivial offences, so it introduced a proportionality bar. The U.K. can now look at the seriousness of the conduct, the likely penalty that might be imposed and whether there are less coercive measures that might be employed rather than extradition.

A further issue that has arisen is in relation to the ability of the U.K. to [Technical difficulty—Editor] evidence as part of the extradition process. For most countries, evidence is not required either because they're EU member states, because they're parties to the European Convention on Extradition or because they are trusted partners of the United Kingdom. Those include Australia, New Zealand, Canada and the U.S.

The U.K., therefore, relies to a large extent on the court's ability to invoke its abuse of process jurisdiction to protect where there may be improprieties in relation to the extradition process itself.

There is also a question about whether somebody who is a resident or a national of the U.K. should be extradited to face prosecution in another country. As I said in my first remarks, I think this actually goes to a question of where somebody should be prosecuted. Very few people are suggesting there should be impunity and that simply because you are, for example, a U.K. national, you shouldn't be subject to prosecution if there is sufficient evidence to justify it.

In the U.K., they have introduced a forum bar. Where there is a substantial [Technical difficulty—Editor] conduct that takes place in the U.K.—which means the U.K. could prosecute—the court can consider whether it's in the interest of justice for extradition to take place. There are a specified number of factors that the court can take into account, but it can take only those factors into account.

The court also considers human rights and it must do so. If there is a real risk of a violation of a human right, then this will lead the court to bar extradition. One of the rights is article 8 of the European Convention on Human Rights, which relates to the private and family life. This can allow a court to consider, firstly, the effect on other people of extradition, most particularly the effect on children of the extradition of their parents, for example. It can also allow the court to consider the effect on the requested person. It has to carry out its own proportionality exercise.

Ordinarily, the court obviously finds that extradition is justified, given the need to prosecute serious crimes, and the need to co-operate internationally, but it does allow flexibility for the court to take into account whether there are other reasons why it would be [Technical difficulty—Editor] in a particular case.

The other thing I'd like to finish with is this. I've seen that one of the issues in Canada [Technical difficulty—Editor] seemingly to the role of the prosecutor. It's probably worth emphasizing that within the U.K., whilst extradition cases are dealt with by the prosecution service, which is the U.K.'s national prosecutor, it acts as a minister of justice in extradition cases. Therefore, it owes an [Technical difficulty—Editor] acts fairly, and it also has a specific obligation to disclose evidence it's aware of that might undermine, or weaken, the request it's prosecuting if it's within [Inaudible—Editor]. It also has an overriding obligation of fairness.

I hope it gives the committee some examples, and ideas of how the U.K. has tried to deal with some of these issues. I'd be very happy to answer any further questions.

4 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you, Mr. Doobay.

I will next go to Ms. St-Laurent.

First, I'll let the clerk take over, and do some sound tests.

4 p.m.

The Clerk of the Committee Mr. Jean-François Lafleur

Ms. St‑Laurent, could you please put on your headset, unmute yourself, and talk for 15 to 20 seconds about anything, like the weather where you are, so we can do a sound test?

February 13th, 2023 / 4 p.m.

Michelyne C. St-Laurent Lawyer, As an Individual

Sure. I've been through quite an adventure with this test. We've been working on it for half an hour, but I've finally managed to join you. Can you hear me okay?

4 p.m.

The Clerk

Everything is working fine. Thank you.

4 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you, Ms. St-Laurent. You will have five minutes for your opening statement.

Please go ahead.

4 p.m.

Lawyer, As an Individual

Michelyne C. St-Laurent

Hello to you, Mr. Chair, and to all the members of the Standing Committee on Justice and Human Rights.

I invite you to read my brief, and I'm ready to answer all your questions.

Here are the key points I want to cover.

First of all, under the existing Extradition Act, Canadian citizens can be extradited on the basis of hearsay evidence, the veracity and reliability of which are questionable. The only evidence you get is an account of the events according to a second or third party. There's no sworn statement or solemn affirmation. Certification doesn't involve a personal affirmation or statement either. Worse still, case law holds that the judge reviewing the record of the case doesn't have to consider whether the content of the record is true.

Since 1989, we have had universal jurisdiction to try Canadians who are accused of crimes committed in other countries, like Rwanda or Mexico. These Canadians have all been tried here. At the very least, we should be giving Canadian citizens an opportunity to plead guilty in Canada, which wouldn't violate our contractual obligations. It's all the more important when the accused citizen has a mental illness.

I just want to say a few words about disproportionate sentences. For example, in Canada, the penalty for trafficking Xanax is a maximum of three years. In the United States, the penalty for the exact same crime is five to 40 years.

I don't know if my five minutes are up. All the rest of the information I wanted you to have is included in my brief. I know you'll also have questions for me.

4:05 p.m.

Liberal

The Chair Liberal Randeep Sarai

You are only at two minutes, Ms. St-Laurent. You have another three minutes, if you'd like to go.

4:05 p.m.

Lawyer, As an Individual

Michelyne C. St-Laurent

No, since you have my brief anyway, I know members will have questions for me, so I'll answer their questions and add some comments.

4:05 p.m.

Liberal

The Chair Liberal Randeep Sarai

That sounds good. Thank you.

Just to let everyone know, we were not able to get a House of Commons-approved headset to Mr. Herman, who is travelling to Europe, so he will not be giving evidence at this point. It will just be these two witnesses.

For our first round of questions, we'll begin with Mr. Van Popta for six minutes.

4:05 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

Thank you, Mr. Chair.

Thank you to the witnesses for being here with us.

Mr. Doobay, I'll start with you.

Thank you for taking the time to meet with Canadian parliamentarians. We appreciate the opportunity to mine your brain and learn something about your experience in the EU.

You talked about some of the tensions in the EU, in the realm of extradition law. We're feeling some of those same tensions here. I read somewhere that you've argued cases that reveal the tension between a motive to seek justice and political motivation. I wonder whether you could comment on that. How do we distinguish between the two?

I'm thinking particularly of the Hassan Diab case. I don't know whether you're familiar with it, but it was a case wherein a Canadian national was extradited to France based on pretty skimpy evidence. We feel it was probably more politically motivated than motivated by justice.

What is your comment on that?

4:05 p.m.

Lawyer, As an Individual

Michelyne C. St-Laurent

That's a very long question.

I speak French. There is no translation.

4:05 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

I meant the question for Mr. Doobay, because he commented on the tension between political motivation and the motivation to seek justice.

4:05 p.m.

Lawyer, As an Individual

Michelyne C. St-Laurent

I'm not getting the French interpretation.

4:05 p.m.

The Clerk

Ms. St‑Laurent, if you look at the bottom of your screen, you'll see a button for interpretation. Click on it and select French. Then you'll get the interpretation.

4:05 p.m.

Liberal

The Chair Liberal Randeep Sarai

Mr. Doobay, please go ahead.

I stopped the clock, so I'm not taking any time from Mr. Van Popta.

4:05 p.m.

As an Individual

Anand Doobay

Thank you.

I think that we need to be clearer about political motivation in terms of the way I've used it in particular cases. There are a number of ways in which [Technical difficulty—Editor] argue that a prosecution was brought for an improper reason because, obviously, prosecutions are supposed to be brought in order to simply prosecute crimes that are legitimately suspected.

In some cases, one can point to a purely political motivation. For example, it's an opposition politician, and the government is simply bringing a prosecution in order to silence that politician. In other cases, there can be a commercial motivation. For example, the government has its own commercial interests and is trying to advance them by bringing a prosecution to support that. In some cases, there may be a political interest in terms of prosecuting a particular case. A government may feel public pressure to bring a prosecution because there is a crime that is particularly sensationalized within that [Technical difficulty—Editor].

In the U.K., we have a number of legal ways of dealing with particular cases. We can make arguments to the human rights bars to say that, if you're being prosecuted for a reason that's not proper, then it's a breach of convention articles. You can also make arguments under the abuse of process jurisdiction that I mentioned earlier, and, finally, we can make arguments in particular to what we call extraneous grounds. If you can prove that you're being prosecuted for your political opinion, your gender, your race or your nationality, then that also will operate as a bar.

I obviously have read something about the case that was referred to in the question, but I'm not claiming to be familiar with it. I think the difficulty with those types of cases can be that the government may have an interest in prosecuting a particular case because it's of great national importance, and it may do so with very little evidence to support its request. I think that would fall into a slightly different category in terms of what I have referred to as politically motivated requests, because when I use that term, I really mean that the government has its own political interest separate from simply prosecuting a crime, as opposed to the government being willing to overlook evidential difficulties in terms of trying to bring somebody to be [Technical difficulty—Editor].

We've had those cases in the U.K. After the terrorist attacks in the U.S., there was a particular case called Lotfi Raissi, where the U.S. tried to bring an extradition request. This was the case that gave rise to the principle I referred to, where the prosecutor was said to have to disclose material that undermined the U.S.'s case. That lead to the U.S., in fact, not pursuing the extradition request.

4:10 p.m.

Conservative

Tako Van Popta Conservative Langley—Aldergrove, BC

My next question is about the burden of proof on the requesting state. We had witnesses here earlier in this study who said that the burden has shifted too far in favour of the requesting state and away from a sense of justice for human rights; but we had another lawyer who said that we have the balance correct, that an extradition hearing is not a trial and that the trial will happen in the other country. We parliamentarians are reviewing our law to see whether it should be amended, and we're looking for some advice from you on that.

How do we find the right balance between being efficient and co-operating with our extradition partners and, on the other hand, ensuring that human rights and justice goals are met?

4:10 p.m.

As an Individual

Anand Doobay

I think the difficulty is really working out to what level you want to examine a case. I appreciate that your system, with the records of cases, is obviously slightly different from what we have in the U.K. As I was saying earlier on, in a large number of countries, no evidence at all needs to be provided. All that's required is for them to make allegations. As long as those allegations include criminal offences then that's sufficient. Those countries include, for example, Azerbaijan and Turkey. They used to include the Russian Federation before it withdrew from the Council of Europe.

You can see that the U.K. doesn't have any evidential test for a number of countries in which there's certainly controversy as to whether that should be the case.

I think the argument you're referring to as to whether the extradition process should be a trial is a difficult one, because obviously it is not possible to have a full trial applying the laws of the requesting state when you're dealing with an extradition case. There are cases in which, it seems to me, it would be appropriate to examine further the evidence that's put forward. Again, within the U.K. we tend to be able to do this by having the safeguards of human rights standards. In exceptional cases, those can be used to say there is a reason to examine the evidence in more detail than would ordinarily be done. This residual [Technical difficulty—Editor] abuse of process.

I completely understand that there is a tension and that it is not possible in every case to insist upon a trial when you're having an extradition hearing. But I do think that the system should cater to people in those exceptional cases where there is really something to be discussed in relation to the evidential test and there's a potential for unfairness.

This particularly arises in relation to a specific aspect of the case you mentioned. We have had this as well. There have been cases of people being extradited and then placed in pretrial detention for long periods of time because their case has in fact not been ready to be prosecuted. So the U.K. introduced a bar that says if the case has not been charged and is not ready to be tried, then that is a reason to stop extradition. That is to deal with situations within the EU for which there are long periods of pretrial detention. There were lots of requests being made [Technical difficulty—Editor] where people end up for many years in pretrial detention.

4:15 p.m.

Liberal

The Chair Liberal Randeep Sarai

Thank you.

Next we go to Ms. Dhillon for six minutes.

4:15 p.m.

Liberal

Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC

Thank you, Mr. Chair.

Thank you to our witnesses for being here.

I'm going to start with Mr. Doobay. Last week, during our last meeting, we spoke about the experience of racialized Canadians when it comes to the Extradition Act.

Could you please comment a little bit about this?

4:15 p.m.

As an Individual

Anand Doobay

I'm sorry, but I didn't hear that session.

Could you just explain what you mean by the experience of racialized Canadians?

4:15 p.m.

Liberal

Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC

By racialized Canadians I mean people of colour or members of the LGBTQ community, etc.—minority communities.

Can you talk about their experience regarding the Extradition Act?

4:15 p.m.

As an Individual

Anand Doobay

There is a specific set of bars that can apply if you can show that people are being discriminated against for those reasons. The bars apply if you can show someone is being prosecuted for that particular reason or that they may face some form of prejudice after they are extradited. They give pretty good protection. You just have to be able to prove a causal link. You have to be able to show that it's one of the reasons they are being prosecuted, not the only reason. You have to be able to show that it's one of the reasons they may suffer prejudice after their return. That prejudice can take a number of different forms.

For example, you might be able to show that they would face harsher treatment in custody or that they would be at greater risk of [Technical difficulty—Editor] violence. There are all sorts of ways in which you can seek to show that they may face discriminatory treatment because of one of these characteristics.