Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-40.
The bill overhauls extradition laws in Canada and creates a modern, effective system for extradition appropriate for the 21st century. It will help us to better meet our international commitments and ensure that Canada is not a safe haven for criminals seeking to avoid justice.
The Extradition Act, which is of general application, and the Fugitive Offenders Act, which applies to the extradition process between Commonwealth countries referred to as rendition, both date from the late 1800s.
Aside from amendments to the extradition appeal process enacted in 1992, these statutes have remained essentially unchanged from the last century.
Extradition laws as they now stand cause serious problems, as we are unable to turn over criminals to countries with which we do not have extradition agreements or treaties; to entities other than a state, such as United Nations tribunals for war crimes; or to countries where extradition treaties are in force but where an outdated list of offences does not include modern offences like drug trafficking, money laundering and computer crimes.
The current extradition process places onerous evidentiary requirements on foreign states and the legislation does not set out clear and adequate procedural and human rights safeguards for persons whose extradition is being sought.
Given the increasing ease of international travel, the advancement of technology and the global economy, major crime and criminals are no longer local in nature.
Transnational crime and criminals are now the norm, not the exception. Canada's laws must be modernized in recognition of that reality.
We have seen in the last few years a number of cases where Canada's extradition laws have not been sufficient to enable Canada to fulfill its international obligation and expeditiously extradite fugitives to other countries in order to face justice. The problem has been most acute in respect of countries of a different legal tradition such as those in Europe.
In the case of a number of requests from countries other than the United States extradition proceedings cannot be instituted. In other instances states are so discouraged by the different hurdles imposed by our current extradition law that they do not even initiate an extradition request. The primary problem is that the current legislation mandates that the foreign states submit evidence in support of their request in a form which meets the complicated requirements of Canadian evidentiary rules.
For countries which do not have a common law system, and for which concepts such as hearsay are unknown, this requirement makes the preparation of a request for extradition a tremendously difficult task, and in some instances an impossible one. Even with countries with a similar legal tradition such as the United States, we have heard on numerous occasions how difficult it is to obtain extradition from Canada. In the context of our other common law jurisdictions such as Great Britain and Australia, Canada's system is viewed as one fraught with difficulties due to the antiquity of our legislation.
With global crime becoming a significant concern at home and internationally, we know that the deficiencies in our legislation will continue to be questioned. Within the G-7 P-8 forum for example, states have been requested to modernize their extradition laws in order to be responsive to the challenges of today's transnational crimes and criminals. All the fora which have considered the serious problem of transnational organized crime have identified extradition as a critical tool to combat this growing threat to world order. In the P-8, the United Nation and within the Commonwealth there have been calls for countries to put in place a comprehensive, effective and modern process for extradition.
In light of Canada's antiquated extradition laws and the magnitude of the changes necessary to modernize our current process for extradition, an entirely new proposed extradition act was drafted, amalgamating and substantially adding to the provisions of the current Extradition Act and the Fugitive Offenders Act.
An important feature of this bill is that it will allow for extradition not just to states but to the United Nations war crimes tribunal and any future entities of this nature, including the proposed international criminal court, the statute for which was recently adopted by the United Nations diplomatic conference in Rome.
This bill will enable us to fulfill our international obligations to comply with the United Nations security council resolution establishing the international criminal tribunals for Rwanda and the former Yugoslavia. According to these resolutions we have to provide assistance and surrender fugitives to the tribunals if so requested.
As our law now stands, we could be in breach of our obligations as members of the United Nations if persons sought by either tribunal were located in Canada and we were not able to extradite.
In addition to allowing for extradition to the international criminal courts or tribunals, Bill C-40 will apply to all requests for extradition made to Canada. Unlike our current limited extradition regime, the new scheme allows for extradition on the basis of bilateral and multilateral treaties, or where the state or entity making the request is designated as an extradition partner in a schedule to the bill.
It also permits the Minister of Foreign Affairs and the Minister for International Trade to enter into a specific agreement for extradition with any state or entity on a case by case basis.
The bill will also apply to all requests for extradition made by Canada to a foreign state.
I would like to emphasize three particular aspects of the bill, as they mark the most significant step toward modernizing our extradition procedures.
As I said, one of the worst problems with the current extradition process in Canada has to do with the complexity of the evidentiary requirements imposed on foreign countries filing requests for extradition with Canada.
For many countries, especially those with a legal tradition different from ours, it is extremely difficult to collect all the extradition documents required under Canadian rules of evidence.
Under the new bill the legal standard for extradition would be retained. That is, a Canadian judge will still have to be satisfied that there is sufficient evidence before her or him of the conduct underlying the request for extradition which, if it occurred in Canada, would justify a trial for a criminal offence. Lawyers like to refer to this as the prima facie test.
What would be modified is the form of evidence that could be presented to the extradition judge. This approach addresses the current difficult evidentiary requirement for first person affidavits devoid of hearsay, which is the main problem encountered by states requesting extradition from Canada.
Experience tells us that it is already extremely difficult for states to meet the prima facie case standard through the use of first person affidavits in relation to certain types of modern day crime; for example, complicated fraud. With the increasing complexity of transborder and international crime, it will be more so in the future.
As I have said earlier, under the current system some countries simply decide not to seek the extradition of fugitives because they cannot comply with our current legal requirements. Those fugitives, therefore, remain at large in our communities.
Under the new legislation the judge would admit into evidence documentation contained in a record of the case. The record would contain evidence gathered according to the rules and procedures followed in the requesting state. It may contain a summary of the evidence available prepared by the appropriate foreign judge or official. The evidence may not be in the form of an affidavit and may be unsworn. The objective is to accept the evidence in the form used by the foreign state, provided it is sufficient according to a Canadian extradition judge to demonstrate criminal conduct under Canadian law and to require a trial in the requesting state.
This record of the case would be certified by appropriate authorities in the requesting state and accompanied by certain assurances in relation to issues such as the availability of the evidence, its sufficiency for prosecution purposes or its accuracy.
The notion of a record of the case is consistent with the recent Supreme Court of Canada decision on hearsay in which the supreme court abandoned the strict formalism of the hearsay rule to adopt a more flexible standard based on necessity and circumstantial guarantee of trustworthiness.
In some respects, therefore, the existent evidentiary requirements for a Canadian extradition hearing are more formalistic and onerous than those for a Canadian trial.
Following a careful consideration of other options, we concluded that the record of the case should be available to all foreign states irrespective of their legal system. The minister believes that the “record of the case for all states option” is the best compromise between the present impractical evidentiary requirements and the absence of any judicial assessment of the evidence, as is presently the procedure followed in Australia and the United Kingdom in respect of its European partners.
With this option the legal test would not change. What would change, however, is the form in which that evidence would be acceptable in a Canadian court.
Bill C-40 also includes a number of improvements and safeguards.
First, when he submits an extradition request so that the person sought can be tried, the competent prosecutor will have to certify in Canada that the summarized evidence is available for the trial and is sufficient, in a common law system for example, for prosecution purposes in that country.
Second, the person sought will receive a summary of the case rather than just affidavits on particular elements. These will provide a clearer picture in our opinion of the evidence supporting the request.
Third, the Minister of Justice may decline to issue an authority to proceed with an extradition hearing if the minister is not satisfied with the content of the record.
Finally, as noted above, the extradition judge will order committal of the person into custody to await surrender only if evidence would justify committal for trial in Canada if the offence was committed here in Canada.
This brings me to the second important feature of this reform. The extradition law, as it currently stands, does not provide for a code of procedure. If one were to consult the Extradition Act or the Fugitive Offenders Act, one would be hard pressed to understand how proceedings commence, whether the fugitive is entitled to bail, how someone is to be arrested, how one can waive proceedings, whether temporary surrender is possible, et cetera. In other words, there is a clear need to spell out the procedure.
It is important at a time when transborder crime is becoming more prevalent to have an extradition process which is effective on a practical level.
At the same time, it is equally important that the process be a clear one and that the written statute detail the nature of that process and the protections accorded to those who are the subject of extradition proceedings. We simply cannot afford to be in the position where we will be criticized by Canadians for having let the country become a haven for criminals by not evolving with our times. Yet we must also produce a reform which addresses the basic procedural requirements needed for a fair extradition process in Canada.
Let me briefly go through the main procedural features included in the extradition law reform. The first point, which is clearly related to the evidentiary requirements that I just spoke about, concerns the respective roles of the courts and the executive branch in extradition cases.
The current two-track system will be maintained. The judicial track will continue to ensure that the underlying conduct would be criminal in Canada and there is a case against the person.
The Minister of Justice, on the other hand, will have the responsibility for assessing the foreign legal system to ensure that human rights are respected and a fair trial will be provided in the requesting state.
The bill outlines the mandatory and discretionary grounds for the refusal of surrender by the minister, such as political offence, lack of jurisdiction, death penalty, humanitarian considerations, previous acquittal or conviction and trial in absentia.
However, the Minister of Justice will continue to have discretion to decide in each particular case whether or not to seek assurances from the requesting state that the death penalty will not be imposed or carried out.
It should be noted that under no circumstances shall the minister make a surrender order if he or she is satisfied that the surrender would be unjust or oppressive or that extradition has been sought for the purpose of prosecuting or punishing the person by reason of race, religion, sex or other similar grounds.
Where a person could face prosecution or punishment because of a prohibited ground of discrimination, the clause we chose was directly taken from the United Nations model treaty on extradition. The UN treaty provides greater protection than exists in most bilateral treaties.
However, I am aware that the list of grounds could be considered under-inclusive and, as a result, the minister is asking the committee to analyse this clause in particular.
Overall, the safeguards referred to in the legislation are provided in addition to any protection under the Canadian Charter of Rights and Freedoms which the person sought may have.
As well, the decisions to be made by the extradition judge or by the Minister of Justice will be subject to appeal or review by provincial courts of appeal.
Finally, the proposed legislation also seeks to harmonize the extradition and refugee processes, as conflict may arise when someone subject to an extradition request makes a claim for refugee status.
Thus, Bill C-40 modifies the Extradition Act and the Immigration Act in order to avoid duplication of decision making and to limit delay in the extradition process. The legislation also provides a means for consultation between the Minister of Justice and the Minister of Citizenship and Immigration in such matters.
More specifically, the Immigration Act would be modified to provide that if extradition proceedings have been initiated for an offence punishable in Canada by a maximum of 10 years' imprisonment or more and that person has claimed refugee status, a hearing by the convention refugee determination division of the Immigration and Refugee Board shall not be commenced or shall be adjourned until a final decision on extradition is rendered.
If the decision is made not to extradite the person, the convention refugee determination division hearing may commence or resume.
If the person is committed for extradition by an extradition judge and ordered surrendered by the Minister of Justice, the order of surrender is deemed to be a decision by the CRDD that the person is not a convention refugee because of the evidentiary grounds presented in the extradition case of a serious non-political offence.
This is in keeping with the exclusion on grounds of serious non-political crimes provided by article 1F(b) of the Refugee Convention to which Canada is bound.
I cannot end my overview of Bill C-40 without mentioning the important modifications to the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act and the Canada Evidence Act which allow for the use of video and audio-link technology to gather evidence and provide testimony from witnesses in Canada or abroad.
Although these modifications will contribute to a more efficient extradition process in specific cases, their aim is much broader as they will allow the use of such technology in criminal and other proceedings as well.
In an age of amazing technological development it is critical that our laws and justice system are flexible enough to permit the use of that technology where possible, appropriate and beneficial to proceedings.
When globalization of new technologies is expanding the reach of organized crime we must ensure that our justice system also uses new technologies to capture and prosecute criminals. Where witnesses cannot be brought before the court because they are outside Canada or they are in another part of Canada and circumstances preclude their attendance, the use of video or audio-link technology is a much better alternative than the written statement or the taking of evidence by a foreign court.
I believe that these modifications represent a major, possibly revolutionary, change in testimonial evidence which takes into account modern day realities and the rights of the accused.
The bill provides that, in respect of video and audio-link evidence from Canada to a foreign state, the laws relating to evidence and procedure of a foreign state would apply as though the person testifying in Canada was physically before the court outside Canada, but only if the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.
However, the bill also provides that the Canadian law relating to contempt of court, perjury and contradictory evidence would apply to these persons, parties or witnesses, whether they are testifying from Canada to a foreign state or from outside Canada to Canada.
In the case of evidence given by the video or audio-link in Canada by a witness elsewhere in Canada, the bill amends the Criminal Code so that the court could order that such evidence be provided by such means if it is appropriate considering all the circumstances.
The court shall receive evidence given by video-link by a witness outside of Canada unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice in this country. The court may receive evidence given by audio links from a witness outside Canada, if it would be appropriate considering all the circumstances.
In conclusion, I wish to once again stress the importance of that legislation for Canada and its partners. It brings about a comprehensive review of Canada's extradition provisions, so as to provide law enforcement authorities and prosecutors with the tools they need to co-operate with other states and entities, in order to counteract the threat of transborder crime and ensure that Canada never becomes a haven for fugitives.