Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-40, the extradition bill which establishes a comprehensive and modern scheme for extradition to and from Canada.
As Canada's existing extradition legislation dates from the late 1800s, the bill brings welcome and necessary revision to the law, a law appropriate for the 21st century. The bill establishes a scheme for extradition to and from Canada. It will permit extradition on the basis of bilateral or multilateral treaty and where the state or entity seeking extradition is designated as an extradition partner in the schedule to the act. It will also allow the ministers of foreign affairs and international trade to enter into a specific agreement to permit extradition in a particular case.
One very important feature of the expanded bases for extradition is that it will give Canada the capacity to extradite to existing war crimes tribunals as well as to any future international criminal court.
Bill C-40 deals with a pressing problem in extradition, the onerous evidentiary requirements imposed on those states which seek extradition from Canada. Currently states must submit evidence sufficient to meet a Canadian legal standard and in a form which is consistent with our complex evidentiary rules.
For countries of a different legal tradition such as many European states, and even countries with a similar system, this makes the preparation of a request for extradition a very onerous task and in some cases an impossible one.
Bill C-40 addresses this problem in a balanced way which recognizes the need for an efficient extradition process as well as adequate safeguards for the person who is sought for extradition.
Under the new legislation the legal standard for extradition will be retained. A Canadian judge will still have to be satisfied that there is sufficient evidence before her or him such that if the conduct underlying the request for extradition had occurred in Canada it would have justified committal for trial here. Lawyers like to refer to this as the prima facie test.
What would be modified is the type of evidence that could be presented to the extradition judge. This approach addresses the current difficult requirements 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 first person affidavit prima facie case standard in relation to certain types of modern crime, for example complicated frauds. With the increasing complexity of transborder and international crime it will likely be impossible in the future.
Under the current system some countries simply decide not to seek the extradition of fugitives because they cannot comply with our demands. Those fugitives therefore remain at large in our communities because of the legal impossibility of obtaining affidavits or the fact that it is practically impossible.
Under the new legislation the judge would admit into evidence documentation contained in a record of the case. 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 decisions 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 existing evidentiary requirements for a Canadian extradition hearing are more formalistic and onerous than those for a Canadian trial.
The “record of the case for all states” option is the best compromise between the fully fledged prima facie case with first person affidavits and not requiring any judicial assessment of the evidence as is presently the case in Australia and the United Kingdom, and in the latter case in respect of its European partners. With this option the legal test would not change. What would change is the form in which the evidence would be made available. This approach also offers greater certainty and equality in the treatment of the person sought for extradition, as well as better procedural safeguards.
First, as I mentioned, in submitting the record of the case in the case of a person sought for prosecution, the appropriate prosecuting authority will have to certify to Canada that the summarized evidence is available for trial and that it is in the case of our common law system, for example, sufficient to justify prosecution in that country.
Second, the person sought will receive enhanced disclosure as a summary of the entire case would be made as opposed to just affidavits on particular elements of it.
Third, the Minister of Justice may decline to issue an authority to proceed with the extradition hearing if the minister is not satisfied with the content of the record.
Finally, in accordance with the prima facie test the extradition judge will order committal of the person in custody to await surrender only if evidence would justify committal for trial in Canada if the offence was committed here.
We believe that with this very balanced approach to evidence Canada will be in a position to meet its international obligations and in a position to prevent this country from becoming a haven for those who would seek to escape justice.
Bill C-40 maintains a two step extradition scheme comprised of a judicial phase followed by an executive phase. In that framework the bill sets out a code of procedure applicable to the whole process.
The bill includes provisions on provisional arrest, bail, appeals and the extradition hearing itself. It also details the functions and powers of the extradition judge, the attorney general and the minister. Clarifying the procedure and the role of the authorities involved contributes to having a system that is efficient and fair.
Another important feature of the bill is that it sets out the mandatory and discretionary grounds for the refusal of surrender by the minister, such as a political offence, lack of jurisdiction, death penalty, humanitarian considerations, previous acquittal or previous conviction, and trial in absentia.
In all cases the minister will be required to refuse surrender where it would be unjust or oppressive or the prosecution or punishment is being pursued on a discriminatory basis, a matter on which I will elaborate further in a moment. These grounds of refusal provide an important safeguard for the person sought and they reflect modern extradition practice.
I note that 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 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.
The standing committee heard from several witnesses including the ministers of justice, foreign affairs and international trade; from Amnesty International; from representatives of the Canadian Council for Refugees; and from the criminal lawyers association. The committee made some useful amendments to the bill, most of a technical nature. However one amendment of particular note relates to the reasons for the refusal of extradition.
When this matter was referred the committee was asked to give specific consideration to clause 44, which provides that the minister must deny extradition where she is satisfied that the request is made for the purpose of prosecuting or punishing the person whose extradition is requested on specific discriminatory grounds.
Initially the bill reflected the grounds which are found in the United Nations model treaty on extradition. After the discussion at committee those grounds have been expanded and clause 44(1)(b) refers to:
—by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person's position may be prejudiced for any of these reasons.
The amended clause takes into account additional grounds of discrimination found in the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and the Criminal Code.
I emphasize that as mentioned earlier, a very important aspect of Bill C-40 is that Canada will be in a position to extradite and provide evidentiary assistance to existing war crimes tribunals and a future international criminal court, such as the one the statute for which was adopted at Rome this summer.
Given the jurisdiction of such bodies over the most serious of crimes, it is imperative that Canada has in place instruments that permit us to lend full co-operation to the tribunals and the future court. Bill C-40 would give Canada that capacity.
Bill C-40 brings important and necessary change to Canada's extradition regime. At a time when transnational organized crime is an ever increasing menace, it is critically important that Canada has in place a modern and effective scheme for international co-operation in combating transnational crime. This proposed legislation on extradition is an important component of that scheme. It will help us to ensure that Canada is not a safe haven for those who seek to escape justice.
I look forward to a constructive debate on this important piece of legislation. I certainly urge, after due consideration, all members of the House to support it.