Justice Committee on Feb. 13th, 2023

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you for that clarification.

Can you comment on the legal procedures of extradition, especially when it comes to the prohibition against surrendering a person to a country in which it's likely they would be at risk of being tortured?

[Anand Doobay]

That's something that we struggle with in the U.K., because we have an absolute prohibition in relation to surrendering to torturers. However, when we're looking at extradition, we're looking at something prospectively, so the test is whether there is a real risk of violation of article 3, which is the prohibition against torture.

The difficulty we now have is, I think, one that you were also grappling with. That is when that risk is now raised, if it is shown to be real and a diplomatic assurance can be given in response to it to say, “Whilst we recognize there's a real risk of torture, we guarantee that in this particular case, this person will not be tortured”.

I have quite a lot of difficulties with this, because the only reason you need a diplomatic assurance is if there is a real risk. You're then trusting [Technical difficulty—Editor] where you've already established that there is a real risk they're going to torture somebody to give you an assurance where they say, “But you can trust us [Technical difficulty—Editor] but we won't torture them”.

There are particular difficulties, as well, with monitoring. Very often, there is no monitoring mechanism built in, or the monitoring that a court suggests is going to happen is pretty fanciful. For example, they say, “Your client can complain if they are tortured”, and you say, “Well, I'm pretty sure they're not going to want to do that when they're in prison in this country, because they're obviously going to face further ill-treatment if they complain”. The methods suggested by the courts in the U.K. as sufficient to ensure that there will be no ill-treatment are, in my mind, not sufficient.

I think one of the things one has to grapple with when using [Technical difficulty—Editor] assurances is how you can make sure that they are going to be effective in practice and that they're going to be monitored, given that they're only given when there is already an agreed risk of this bad treatment happening.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you for that.

When it comes to monitoring, as you just mentioned in your response, what can governments do to better monitor or make sure that promises are being kept?

[Anand Doobay]

In some instances, consular officials have been delegated to do this. The difficulty is that, if it's not a British national, the British consular officials don't have any right to see the person, but of course, the country can agree to it. However, that gives [Technical difficulty—Editor] resource implications when countries can be concerned about using consular staff in order to do this. That, to my mind, is quite a safe way of doing it, because it gives the person a confidential ability to report ill-treatment.

The other mechanisms that have been suggested are human rights bodies, but again, there are practical difficulties with them.

I think the most serious issue about monitoring is what you do if there is a breach. The only repercussion is diplomatic, because the [Technical difficulty—Editor] that is given is diplomatic assurance. It's given from one country to another. If there is a breach, and you can establish that in a way that's objectively verifiable, what then happens?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you.

What kind of crimes are most often seen as part of extradition cases? What are the most common ones?

[Anand Doobay]

I'm not sure the U.K. is a very good example. We now have this system with the EU that allows for extradition requests that many EU members face, and because they have this principle of legality, they don't exercise any discretion. For most countries where this principle doesn't exist, there is a decision taken as to whether an offence is serious enough to justify the resources needed in order to make an extradition request, but within the EU, that doesn't really apply. We face requests that range from what you would see as very serious to those that some people would consider to be much more trivial.

I would add one caveat, which is that it is quite hard to categorize seriousness unless you understand the context within which these crimes are being prosecuted. What may seem trivial to you in a particular country can be an endemic problem. If there's a low standard of living, the theft of a chicken can actually be a relatively serious offence, even though in a different country, that might seem pretty trivial.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Monsieur Fortin, you have six minutes.

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

Thank you, Mr. Chair.

I would like to thank our two witnesses, Mr. Doobay and Ms. St‑Laurent, for joining us today.

Ms. St‑Laurent, I understand that you're a lawyer and that you're appearing today because you've probably had some experience with the application of the Extradition Act.

In your brief introductory remarks, you said that a Canadian citizen convicted of a crime that was committed abroad should be able to plead guilty in Canada if they so wish. You also mentioned a problem with unsworn statements.

Could you elaborate, and could you tell me whether this applies to one or more of the cases you've handled as a lawyer?

[Michelyne C. St-Laurent]

Being able to plead guilty in Canada to crimes committed abroad would be very important in certain cases, especially those involving people with mental illness or autism spectrum disorder. Those people already have huge problems to deal with. Being here in Canada, with their family, where they can communicate in their own language, is so important. In my opinion, going to the United States, having to adapt and facing the possibility of a decades-long prison sentence could make them suicidal. I would call that cruel and unusual punishment. As it happens, I commissioned an expert report on this for a case, and I'm expecting it shortly.

There's also the matter of universal jurisdiction. In the Cotroni case, Mr. Cotroni asked to be tried in Canada. The Supreme Court refused, saying it would cost too much to bring witnesses over, among other things.

Given the disparity between the sentences meted out in Canada and the United States, however, why shouldn't a Canadian citizen be allowed to plead guilty here in Canada? I don't think that would run counter to our international collaboration. As I wrote in my brief, the costs would be low for both the United States and Canada. There would be collaboration, especially since we have universal jurisdiction. I think that would be a plus, and it's extremely important.

I just can't get over the fact that this isn't allowed. I think it ought to be legal. I seem to recall another Supreme Court case where the person said they wanted to plead guilty in Canada, as in the case of Mr. Cotroni. However, the Supreme Court decided that that wasn't a right. It was up to the minister, in cooperation with the United States, to make the decision. But I don't remember which ruling it was, and I don't have it with me because I had hardly any time to prepare, as you know. I'm very busy.

I don't remember what year the ruling was from, so I don't know if universal jurisdiction already existed at the time. But that would be a plus, especially for people with mental disorders, such as autism. I think that, in all cases, this ought to be allowed in light of the disparity between the sentences handed down in the United States and Canada.

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

You were talking about how it's a problem when the record of the case contains unsworn statements and about the fact that the judge only has to consider whether it's complete, not whether the evidence is valid. Do you have any specific cases you can tell us about?

[Michelyne C. St-Laurent]

I do have one specific case in mind, but generally speaking, that's how it always is.

Judges say that it doesn't take much evidence. I mentioned that in my brief. It's not at all like a preliminary inquiry, because first of all—

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

If you want to tell us about your case, Ms. St‑Laurent, we have about a minute left, so you might want to do it now.

[Michelyne C. St-Laurent]

I'll talk fast.

It's extremely important. We asked for disclosure, and we have some facts, but there are no sworn witness statements, just a set of facts. And as the Extradition Act says, it doesn't have to be verified.

I had a lot of suggestions to make, because I thought I had an hour, minus the five minutes, but I see I won't have time to present them. I'm very disappointed, because there were some important points I wanted to make.

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

You can still do it by sending us your written notes, Ms. St‑Laurent. Sadly, my time is up.

[Michelyne C. St-Laurent]

I would be happy to. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. St-Laurent. As Mr. Fortin said, you are more than welcome to send in your submissions in writing. If you want to add more material we will be more than happy to receive that.

Next is Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair, and thank you to both of the witnesses for being with us today. I want to go back to Mr. Doobay, who raised a question of what's called the “forum bar”. I would like to know a bit more about how the forum bar works, which in my understanding says if things can be prosecuted in the U.K. there's a presumption they will prosecuted in the U.K. rather than extradition taking place.

Did that come about through case law, Mr. Doobay, or was that legislated?

[Anand Doobay]

It came about through legislation rather than case law. I think I just need to explain a bit further because that's not quite what it does. It says that if there's a substantial measure of conduct that took place in the U.K. then the forum bar applies. That's the gateway. That generally means that it could be prosecuted in the U.K. because a substantial measure of the conduct has taken place there. Then there are a number of specified factors that the law looks at, but there's no hierarchy to them. The court can give different weight to different factors. The factors include what prosecutions have taken place, whether there's an interest in prosecutions taking place in one country and the defendant's connections to the U.K. There are a variety of factors.

One of them looks at the possibility of prosecuting in the U.K. Now a U.K. prosecutor can say that there is no possibility of a prosecution in the U.K. and can issue a certificate. If they issue a certificate, you can't invoke the forum bar. That does give a prosecutor an ability to stop you from invoking. That hasn't happened yet in any case in the U.K. The prosecutor can also issue what is called a belief letter that says they don't believe the most appropriate jurisdiction for prosecution is the U.K. and they will then explain why they don't believe that. That happens in most cases and the court will then take that into account.

The reason why the forum bar is difficult to operate is the defendant always has long-standing connections with the United Kingdom and the court is trying to reconcile that with whether they can be prosecuted in the U.K. If they were already being prosecuted in the United Kingdom, they couldn't be extradited. You would ordinarily have a defendant saying that they want to be prosecuted in the U.K. and the requesting country saying that they already prosecuting the person and could do so swiftly. For example, they have other defendants who they are already prosecuting.

It's quite a difficult picture for a court to consider when weighing up these various factors. Often, the court is put in a position where it feels like it has to order extradition because if it doesn't do so it may be concerned that the person is going to have impunity and isn't going to be prosecuted anywhere.

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

Thank you, Mr. Doobay.

You also made reference in your original presentation to a proportionality bar. Could you talk a little bit more about how that operates and whether that came about legislatively or through case law?

[Anand Doobay]

That also came about legislatively. It arose just because, as I said, there was a lot of public concern about the number of offences that were being sought from the EU member states that were thought of as being trivial. There are three limbs to the proportionality bar and it only applies to requests made by EU member states.

The first is the court looks at the seriousness of the offence and there's a test laid out in terms of considering what's serious and what's not. It then looks at the likely sentence that's going to be imposed, and it then looks at whether there is a less coercive measure that could achieve a just outcome in the case.

Once it has looked at the combination of all three it reaches an overall assessment as to whether it would be disproportionate to extradite in a particular case. Often what may happen is the person may be kept in custody while the extradition proceedings are ongoing. For example, the court may say the amount of time that the person spent in custody in the U.K. is probably about the same amount of time that they would have spent in custody if they had been convicted of the offence. The court may say there's an offence that it doesn't think is significant enough to justify the extradition. It will also try to test with the requesting country whether there are less coercive measures, whether the person could be sentenced to a non-custodial sentence, or a fine, or some diversionary measure that would be short of a custodial sentence

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

In the case of fearing persecution on the basis of factors like race, sexual orientation or gender identity, who makes that decision in the U.K. system? Is that a decision of the judge? In Canada, that decision on surrendering someone for extradition is left to the minister.

[Anand Doobay]

That is a decision of the judge. In fact, the minister in the U.K. has a very limited role now. The minister used to have a very broad discretion, in the same way as I think you currently have in Canada, but over time, that has been narrowed down for the reasons I gave in my opening remarks.

The review that I carried out recommended that the minister's discretion be narrowed even further. At that point, the minister was still considering human rights [Technical difficulty—Editor], because we took the view that these were really judicial decisions. They should be taken uninfluenced by political considerations, and be dealt with in a transparent way. In fact, the U.K. government agreed with that.

In the U.K., the minister now only looks if there is a risk of the death penalty, and if so, whether an assurance been given that it won't be carried out. Are there specialty undertakings in place, i.e., is the country agreed the person is only going to be prosecuted for the offence the person is being extradited for? If there's an earlier extradition request from another country, how do you do a competing request? The minister has a very limited set of questions to deal with, and they're very technical, essentially, in application. All the other issues are now dealt with by the courts.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

We'll go to our next round, which will be five minutes, beginning with Mr. Brock.

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

I would like to thank the witnesses for their attendance and participation.

The first question is to you, Mr. Doobay.

I listened very carefully to your opening remarks. You spoke about tensions in our current extradition system, and punishment versus protection of civil liberties. You talked about the role of the prosecutor in Canada. I'm not quite sure if I took down all of your notes. You made reference to the prosecutor in the U.K. being akin to a minister of justice, with duties to act with fairness, and to disclose evidence that is not favourable. In other words, it's probably evidence that normally could be disclosed, but sometimes some countries may not disclose it.

Were you trying to suggest that in Canada we do not have that minister of justice type of prosecutorial system, when it comes to extradition hearings? Are you suggesting that our prosecutors deliberately withhold exculpatory evidence without that duty to disclose?