JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 3, 1998

• 0912

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Good morning. I apologize for being late. It's my fault.

An hon. member: —

[Inaudible—Editor] —

The Chair: Oh, were we all late? Thank you. At least you told me the truth.

Some hon. members: Oh, oh.

The Chair: Okay. Our first witness is Jacques Lemire, who is counsel to the international assistance group. Are you comfortable going ahead without Mr. Piragoff or do you want us to wait for a few minutes? Do you know if he is coming?

Mr. Jacques Lemire (Counsel, International Assistance Group, Department of Justice): I expect he is going to be here. Is it a problem if we wait a few minutes? Otherwise, we can go ahead.

The Chair: After my little apology, I don't think— We'll just rise for a couple of minutes and wait for him. We don't usually meet in this room so something got screwed up in the translation, I'm sure.

Mr. Jacques Lemire: Thank you.

• 0913

• 0916

The Chair: Today, then, we're starting examination of the Extradition Act. From the Department of Justice, we have with us Don Piragoff, who was with us the other day. He is general counsel in the criminal law policy section. He is here with Jacques Lemire.

Gentlemen, do you have an opening statement or will we just jump in?

Mr. Don Piragoff (General Counsel, Criminal Law Policy Section, Department of Justice): Madam Chair, I think everything we have to say was said by the parliamentary secretary to the minister at second reading. We're really just here to answer questions and assist the committee in any way we can with respect to the examination of the bill.

The Chair: Okay.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Madam Chair, could the parliamentary secretary re-read her speech?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I think you all have copies.

The Chair: All right. You should all have a briefing book from the justice department, which at least sets out the nature of the debate and that sort of thing. It has a press release in it as well.

I'm making a list now, so if there are questions—

I'll start with John Reynolds.

Just start talking and I'll cut you off arbitrarily when I feel like it.

Some hon. members: Oh, oh.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): I don't have that many questions, but I do have a few.

Ms. Eleni Bakopanos: This is going to be one of those days.

The Chair: If anybody else has questions, please just let me know. I will have a few myself.

Mr. John Reynolds: If nobody has any questions, we'll stop and go home.

How does this speed up the process? You talk about Bill C-40 streamlining the process. If you take a case like Rafay and Burns, the two young people in British Columbia, it's been going on for quite a while. How would this speed up that process?

Mr. Don Piragoff: The bill would assist in expediting the process in a number of ways. The first way is to re-enact the provisions that were enacted in 1991-92, which saw a significant decrease in the amount of time it takes to go through the appellate process. At one time it was taking five years. Now that has dropped down to two years. That's in complex cases. The average case takes about a year from the time the request is made to the time the person is surrendered.

So first, it re-enacts the amendments of 1991-92, which have proved to be quite successful. Second, it assists foreign states in producing evidence in a form which is amenable to their justice system. What happened in the past is that Canada's very complex evidentiary roles, basically requiring no hearsay and first-person affidavits, caused a lot of difficulty for some countries, particularly for civil law countries that do not have evidential laws similar to ours, that don't understand what hearsay means, and that don't understand what can go into an affidavit, that an affidavit can only say things that a person actually saw or said as opposed to what someone may have told him or her.

• 0920

However, even with respect to common law countries such as the United States or the United Kingdom, because of the necessity for first-person affidavits, if one is involved in a complex fraud case—and of course transnational fraud is becoming more and more common with respect to international trade and international commerce—that requires boxes and boxes of documents, again, all having to be catalogued in accordance with first-person affidavits.

We've had cases from some European countries where we've had 50 boxes of documents that all had to be catalogued and cross-referenced with first-person affidavits. This is not the way they collect evidence for their own domestic purposes.

So what this bill tries to do is say, “We will accept the evidence which you produce domestically for your own investigation, for your trial purposes, and we will take that summary, a complete summary, of the evidence.”

There are also examples with even a common law country, like, for example, the Narita airport bombing case, where, because of the requirement for first-person affidavits, the Japanese law— If you recall, the aircraft had left Vancouver, had stopped in Japan at Narita airport en route to India, and the bomb went off in the luggage area of the airport when the plane was being unloaded. All of the witnesses—at least the relevant witnesses—were in Japan, including the forensic experts. Japanese law prohibits the taking of and swearing of affidavits on their territory, because, to them, it is an act of sovereignty by Canada on their territory, a foreign act of sovereignty on their sovereignty. Because of that, we had to ship Japanese witnesses to Hong Kong, where the affidavits could be sworn. That, again, costs money; that, again, costs time.

Another way the bill would expedite extradition is that the current law does not permit for waiver by the accused. There's no provision in the current law whereby an accused can simply say, “I don't want to go through the extradition process. I'm ready to go back. I waive extradition.” There's no mechanism for that under the current law. The bill provides for a person to basically consent to be taken back across the border.

Those are, I think, the major areas where this would expedite the process. It also assists in expediting the process in that it clearly delineates the roles between the extradition judge and the minister as to exactly what their functions are. A lot of the litigation that has occurred in the past is due to the fact that the trial courts, in terms of the extradition hearing, were undertaking activities which the Supreme Court later said were matters that the minister should be dealing with, that those were really executive decisions.

Extradition is primarily an executive act under international law, but there is a role for the judiciary to play. And for a number of years it was uncertain exactly what the role of the judiciary was, so a lot of the court litigation was sparked by the courts trying to understand exactly what their role was. This bill would make it clear exactly what the minister's responsibilities are and what the court's responsibilities are. And that clarity should also help to expedite the process because the rules are now clear.

Mr. John Reynolds: Does it preclude a charter appeal? Does anything in the bill preclude anybody—

Mr. Don Piragoff: No.

Mr. John Reynolds: Okay. What would happen in the case of somebody like Rafay and Burns, who are charged with murder in the United States, if the Supreme Court says they can't be sent back if the United States insists on their penalty, which, in Washington State, is the death penalty? What would happen to them if the court rules in that way? They've been charged with no crimes in Canada and they are Canadians.

Mr. Jacques Lemire: If there were a ruling in the Supreme Court that provided they could not be surrendered to face the death penalty situation or the death penalty charge, that would entail the Minister of Justice having to seek death penalty assurances from the United States in order to effect surrender. That is what would have to be considered—and done, eventually.

Mr. John Reynolds: What if the United States said no?

• 0925

Mr. Jacques Lemire: I think that's where we would be faced with an unprecedented situation and obviously we would have to comply with the court ruling.

Mr. John Reynolds: What other—

Mr. Jacques Lemire: In the end, that could result in the inability to surrender to the United States in those circumstances.

Mr. John Reynolds: I didn't hear the last comment.

Mr. Jacques Lemire: It could result in the inability to surrender to the United States if assurances could not be obtained in compliance with the court order.

Mr. John Reynolds: In what other areas can the minister be interjected into the process? Why does the minister have the final say? Why not the courts?

Mr. Don Piragoff: Extradition under international law is primarily an act between two sovereign executives. Under international law, it's considered to be an executive act, a sovereign act, and the final decision, in most countries—in fact, that I'm aware of, in all countries—comes down to a decision by the government.

The judiciary plays an important role, and depending on the country and the legal tradition, it plays a greater role. In some European countries, the judiciary plays a very small role. Basically, the judiciary determines that the person is the person charged, that the offences are right and that there's some dual criminality. All the decisions are those of of the executive.

In the common law system, there is a broader role for the judiciary in terms of looking at the evidence to determine that it is sufficient, but the end result is that it comes down to the executive and the minister to determine, because a number of factors have to be taken into account in extradition.

One is whether the person is going to receive a fair trail. There are clearly some countries to which Canada would not likely extradite someone because we do not have confidence in their criminal justice system. The other point is that common law countries, unlike civil law countries, extradite their nationals. There are many countries in the world which do not extradite their nationals, so for them extradition is simply extraditing or surrendering foreigners.

With respect to common law countries, it's not only the surrender of foreigners but the surrender of nationals. And of course that is also a concern: nationals have certain rights and certain constitutional rights.

One such right under our charter is the right to remain in or leave Canada, which means that for the government or the state to force persons to leave Canada, in which they have a right to remain because they are Canadian citizens and they have been born in this country, it requires that the rules of law be proceeded with. This means that, first, the court has to determine that the person wanted is the right person, that his question of identity is satisfied, and secondly, that's there's dual criminality, that the conduct for which he is wanted in the foreign state is also considered to be a crime in Canada, because if Canada does not even consider it to be a crime, why would we send someone to a foreign country?

Once that judicial process is done, the minister is responsible for determining all questions related to foreign law as well as international politics: whether the person will get a fair trial, whether the person is likely to be persecuted in the foreign state, whether the person might be tortured in the foreign state, and whether the legal system is such that the person can actually get a fair trial.

So these are the considerations that are a lot easier for the executive to do, because essentially it comes down to a political judgment call about the judicial system or the political system in a foreign state. And those are not questions that a judge can answer, because then we would be having a Canadian judge commenting on the political situation in another country. Really, at that point, it is a matter for the executive to be saying to another country we are not going to extradite because we don't have confidence in their judicial system or their correctional system. That's the role of the minister.

Mr. John Reynolds: Do we have a list of countries that we wouldn't extradite people to? You mentioned some countries.

Mr. Don Piragoff: We don't have a formal list of countries. Rather, it's been the reverse situation, in that we've had a list of countries to which we would extradite.

• 0930

Under the new bill, prima facie, we will still extradite on the basis of a treaty, which, again, basically means a list. But there is the ability to extradite to countries without a treaty. In those situations, the discretion and the ability for the executive to intervene becomes more important.

And the reason, for example, we are now going to a non-treaty type of situation is that there are some countries like Japan, for example, which just does not sign extradition treaties. Their process is to provide a domestic means to surrender a person out of Japan on the condition that another country will give them reciprocity if they were to want someone to come into Japan from that foreign country.

A number of countries like the U.K. have also gone through a process whereby, prima facie, they use treaties, which, again, creates a list of countries, but they also give themselves the power to provide for ad hoc jurisdiction on a case-by-case basis with certain countries. And in those situations it becomes a judgment call. An assessment is made by the Minister of Foreign Affairs and the Minister of Justice as to whether a person would or would not get a fair trial in a particular country.

So this new law makes it flexible. It actually gives us a broader basis upon which to extradite, because the current law right now is really premised on the presence of a treaty or a country being common law, a commonwealth state, as a member of the Commonwealth. Commonwealth countries have some preferential status whereby they can get extradition without a treaty under the old Fugitive Offenders Act, which is now incorporated in the proposed new act under a merged system.

The Chair: Thanks, John. Derek Lee.

Mr. Derek Lee: Thank you.

Some years ago, around 1992, amendments to this statute were passed by Parliament. At the time, I recall the issue, the contextual backdrop, coming up for discussion. It involved the interface between the Extradition Act and Canada's Immigration Act.

Perhaps you could indicate whether there is anything in this bill which would apply to the interrelationship between the Immigration Act and this new Extradition Act, with specific reference to what I subscribe to, which is a certain perspective, a certain concept.

If an individual is in Canada, is here without status/illegally and is subject to the Refugee Convention—which I understand is addressed in this bill—subject always to the potential for someone who is in this country to claim to be a refugee from somewhere, why wouldn't this country more often use the Immigration Act instead of the Extradition Act? Why wouldn't we use it to simply remove someone who shouldn't be here, with or without the request of the foreign government? Why would we rely on extradition so much if the Minister of Immigration or officials could determine this person is here illegally and we are removing him or her to his or her country of origin, where he or she may or may not be wanted in connection with a crime?

Could you address that issue?

Mr. Jacques Lemire: Certainly. The Extradition Act operates on the basis of a request being made by a foreign state for a specific purpose, which is to ensure that the person who is wanted in that state to be tried or to serve a sentence be sent to that state for that purpose.

Under the immigration legislation, the act operates on the basis of Canada finding its own interest in having a person who is not legally in the country removed from its territory.

Potentially, the removal under immigration legislation may not satisfy a foreign request. It's not because an individual is illegally in Canada that the person would be removed to a state which wants that person in order to have the person tried or convicted or sentenced.

• 0935

Both processes operate with a different purpose and pursuant to separate rules. The fact that there is a possibility of extradition does not preclude immigration proceedings from taking place for their own purposes. However, it may not satisfy a foreign request for extradition. In the context of extradition, we have to respond to requests in accordance with our international obligations.

Those are the different perspectives and focuses of the two instruments, if I can say it that way.

Mr. Derek Lee: From a public policy point of view, I'm going to guess—I could be wrong—that a deportation process could be a lot shorter than an extradition process. And if one had the choice, why wouldn't Canada opt for a deportation process if it were more expeditious, realizing that Canada has no obligations to the illegal person?

I guess you're saying that this bill and the current Extradition Act don't allow for that other option: once you have an extradition process at play, you have to play it out whether it's one year or two years or three years or four years. You've indicated that we're getting the procedure down to a couple of years now. In 1992, that wasn't the case; it was embarrassingly so not the case. But wouldn't it be prudent to allow for an immigration deportation to pre-empt the more costly extradition where that is in Canada's interest?

Sorry, Madam Chair, I realize I'm taking the witnesses into another policy area.

The Chair: Yes.

Mr. Don Piragoff: We just want to confirm this, because it also gets into the area of immigration law, which is really an issue of another ministry, Immigration Canada—

The Chair: Yes.

Mr. Don Piragoff: —so we want to make sure we have the right answer before we speak on behalf of another minister.

The Chair: You know, we don't worry about whether we have the right answer.

Voices: Oh, oh.

Mr. Don Piragoff: Any answer will do?

The Chair: Have you noticed that?

Voices: Oh, oh.

The Chair: Don't answer.

Mr. Don Piragoff: I'd be happy to give you any answer you'd like.

The difference between extradition and deportation is that if there is a deportation hearing and an extradition hearing, they may not necessarily be to the same country. For example, deportation basically means that the person is deported to their last country before they came to Canada, or their country of residence. Extradition, of course, could be a request from a third country who wants that individual.

With respect to deportation, it is purely a Canadian matter. It's our discretion that we don't want this person in the country; we want to deport the person out. With respect to extradition, if there is a treaty then we have a treaty obligation to another country to respect that request for extradition. Under international law, because there is a treaty we are obligated to abide by that treaty if the request is made. That's why extradition would, as you would say, trump a deportation.

Sometimes, of course, it may be that the most logical country for both the extradition request and the deportation is the same one. In those situations, both the deportation and the extradition can proceed at the same time. We've had situations in the past where we've had both an extradition request and a deportation proceeding occurring with respect to the same country.

Problems have occurred where the person in the context of the deportation hearing raises a defence of being a refugee and says that under the refugee convention, he or she cannot be deported back to the country because they are claiming refugee status in Canada.

• 0940

In the past that has caused a problem because the refugee status claim can take a lot of time, and it also then ends up with two processes, one process determining whether or not this person is a refugee, which can take time, and a second process where there is a judge and the Minister of Justice determining that this person has committed a serious offence.

One of the exceptions under the refugee convention, by which a person can be deported notwithstanding that he makes his refugee claim, is if he is wanted in a foreign state for the purposes of a serious, non-political offence. What is happening under the current situation is that we have the extradition process determining whether or not there is a serious offence committed by this person and the same question being determined by the refugee board.

And this bill tries to say there's a duplication of procedures here, that it's a waste of time and it's slowing down the process. This bill attempts to say that we only need one adjudicator to be making the decision with respect to whether or not a serious crime has been committed such that the person is excluded from the benefit of the refugee convention. The decision taken with respect to this bill is for that decision to be made in the context of the extradition hearing rather than the refugee hearing.

The reasons are, one, a judicial decision makes that assessment; two, it is an assessment being made by a judge, and of course it's being made by an extradition judge who has the expertise to determine whether or not conduct amounts to criminality; and three, the Minister of Justice has to take into account issues like whether or not the person will have a fair trial, whether the person will be discriminated against or whether the person is likely to be tortured or shot on their return. In any event, therefore, the decision was made to streamline the process, to have only one adjudicative body make this decision. And the decision was made that it should be the extradition process rather than the refugee process, which is administrative.

Mr. Derek Lee: You've dealt with the redundancy between extradition hearings and IRB refugee hearings and that's good. This bill deals with that. I think it's a fair mechanism.

But you haven't addressed directly, I don't think, the redundancy between an extradition hearing and a potentially more expeditious deportation hearing, where the deportation would be to a jurisdiction that would otherwise be seeking extradition—and without mentioning any countries, it's often the U.S.A. I'm just wondering if this bill attempts to allow the more expeditious hearing procedure, that is, the deportation hearing, to trump or pre-empt the extradition process. And if it doesn't, in some cases maybe it should.

Given that we've solved the IRB sidetrack issue—or pretty much solved it—we're looking at a true deportation process that isn't going to get sidetracked too much by an IRB process and an extradition process. And maybe deportation is the right number; it might take 30 or 60 days and only one legal aid lawyer, whereas the other process might cost us considerably more and accord position, rights and process to a person who, being non-Canadian, with no connection to the country, simply isn't entitled to have it.

I guess I'm just looking for you to confirm that this bill does not attempt to address the possibility of allowing an immigration deportation process to pre-empt the longer and potentially more expensive extradition procedure.

Mr. Don Piragoff: Absent the situation of a refugee claim, both an immigration deportation proceeding and an extradition can run in parallel, on the chance that one falls and one does not fall.

With respect to the policy as to why deportation proceedings should continue or should not trump, you might want to raise some questions with the immigration department on that particular issue, because, really, it's their policy.

The Chair: Thank you, Mr. Lee. Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Madam Chair.

• 0945

And thank you both for being here. This is a fairly in-depth and complex piece of legislation, but overall, I think, it's obviously one that was needed, and it's timely.

One thing was stated with respect to the sufficiency of the evidence. I believe you articulated that the common law gives a broader role to the judiciary, but with respect to the political judgment calls, I suppose, that are sometimes made, this would in essence be better dealt with by a department or by the minister. Can you expand on that? Are there any situations wherein you're concerned about the evidentiary burdens being met and, for lack of a better phrase, I suppose, about the potential for political interference by either the Canadian government or foreign governments in this decision-making process when it comes to extradition?

Mr. Don Piragoff: Madam Chair, I'm not quite sure of the question. Are we concerned about the ability for there to be a political decision taken? If that's the question—

Mr. Peter MacKay: That is the question.

Mr. Don Piragoff: From the department's point of view and from a policy point of view, the ability for the executive to have the final say is what makes this in accord with international law: that extradition is basically a relationship between two sovereign states and it is an executive decision, and if decisions have to be made with respect to the judicial or the political system of another country, those are really questions that Canada as a sovereign state, as a political state, should be making, not a judge who is not aware or attuned to exactly what may be occurring within a foreign state.

So in terms of whether it's beneficial to have discretion, all countries have a final discretion as to whether or not they will extradite. Primarily it is to ensure that it is in the interests of their country that the person be extradited, but it's also to ensure that an individual is not going to be executed as soon as he steps off the plane in a foreign country—without a fair trial.

Mr. Peter MacKay: My colleague, Mr. Reynolds, touched on this, but perhaps, again, I can ask you to expand. We've seen situations in the past where the government and the judiciary have tread very lightly in the area of charter rights in this country. Yet, I can see under this piece of legislation the possibility that separate rules of evidence at extradition hearings might come into play and charter considerations would be softened somewhat. Does that trouble you at all under this particular piece of legislation?

Mr. Don Piragoff: I wouldn't say the legislation has softened charter considerations. Our opinion is that the bill is in accord with the charter. Out in the ordinary criminal law—that is, outside the extradition context—the Supreme Court of Canada has already made the rules of evidence more flexible. It is already starting to permit the introduction of hearsay, not by trying to find a rigid exception where you can pigeonhole your facts into an exception, but by basically saying if evidence is reliable, trustworthy and necessary, it will be admitted. This bill, to a large extent, is already starting to mirror what exists in the normal trial process.

Right now the extradition rules of evidence are more severe and more limiting than what exists in a Canadian domestic trial with respect to the admission of evidence. One can admit certain types of hearsay in the context of a Canadian trial. In the extradition context right now, it is very much limited to documents and documents which are affidavits devoid of any hearsay. This brings it more into line in terms of Canadian practice.

• 0950

There's another thing this bill does. When one is adjudicating in an extradition context only on the basis of affidavits, what you get is a piecemeal type of scenario or a fact-scenario of what happened in the foreign state. You have one affidavit by a police officer who says this and one affidavit by another witness who says that. You never really get a global picture of exactly what the case is that the other country has and how strong that case is.

What this bill says to the other country is the following. It tells the other country that rather than giving us piecemeal documents, which are only a part of the puzzle, and asking us to try to put together the pieces of the puzzle, the other should give us its case. The other country should describe its case, give us a summary, and certify by either a judicial official or a high government official, such as an Attorney General, that either all this evidence has been collected according to the law of that state or that this summary being given to us is sufficient under that country's law to justify prosecution.

That gives the fugitive in Canada and his or her defence counsel a lot more understanding of what the case is in the foreign country than a bunch of affidavits can do. To some extent, it is even giving the accused person more disclosure of the case than what exists under the existing law. So to that extent, it also is more in accord with the procedure in domestic proceedings, because, as you know, under domestic proceedings there are constitutional requirements to provide very extensive disclosure of a case. What this ends up doing also provides that same type of disclosure.

So I would posit that in many respects this bill brings the extradition process more into line with the domestic procedure, it being a procedure that right now is very much rooted in turn of the century Canadian legal theory, and modernizes it.

Mr. Peter MacKay: So is that information articulated solely through documents? Is there a process in which it would ever come to bear that an official would physically come to Canada to make that case?

You've answered this partly already, but I guess what I'm concerned about are the safeguards in place to prevent the extradition of Canadian citizens on evidence that wouldn't meet that threshold—and I realize it's a different threshold—a threshold in the context of one that wouldn't be met by Canadian criminal courts.

And I realize that as Canadian citizens we don't take our charter rights outside of Canada, but are there safeguards there to ensure that, number one, this evidence is reliable and this isn't just a country transmitting documents? I guess I've been in enough criminal courts to know that affidavits are not subject to cross-examination, and if it's simply documentary evidence that's presented to Canada, how do we delve into the reliability of that?

Mr. Don Piragoff: Okay. There are two answers to this. First, let's take an example, a country like France. The French judicial procedure is different from ours in that it's not necessarily police that do the investigating; police do the investigating pursuant to the instructions of an investigating magistrate or juge d'instruction. That judge basically tells the police to go out and interview this witness, interview that witness, collect these documents. He or she compiles a brief, a report, which is essentially the evidence that will be used in the domestic proceeding.

There's a certain guarantee of trustworthiness in that if the French system is based on a judge collecting evidence and that's what they use for trial we should also have some confidence in that document.

Under the current law, that document has absolutely no relevance or weight in the Canadian proceeding because it's all hearsay. It's the report of the juge d'instruction examining witnesses, examining the police officers, issuing search warrants for the police officers, and then writing up this report as to the likelihood of why this person is guilty and why the person should stand trial.

This would permit that type of document, that is, the report of the juge d'instruction, to be sent to us and be given to a Canadian judge, who would look at that report and then determine on the basis of that report whether or not there's dual criminality, whether there's a sufficient amount of evidence such that if the person were tried in Canada the person could be committed to stand trial.

• 0955

The second safeguard is that Canada will require a high justice official or a judicial authority of the other party to certify that the evidence summarized in this record of the case which is going to come to us is sufficient under their law to justify prosecution or was gathered according to domestic evidence law.

The third guarantee is that before the Minister of Justice would even initiate an extradition hearing, she or he has the discretion to say the evidence is just not good enough. Right now, the current law does not provide, officially, this type of upfront ability for the minister to simply say, “I don't think the case is good enough. The evidence is not good enough. I'm not going to send it.”

There is real debate amongst the courts as to how an extradition hearing starts. This would make it clear that it is the Minister's decision, right upfront, to say he or she is satisfied that the evidence from the foreign state is good enough to start the judicial wheels rolling in Canada.

The fourth safeguard is—

Mr. Peter MacKay: Excuse me for a second. Are you saying that discretion never existed in the past? If there was an appeal made to a minister where the argument was made that we didn't have enough evidence to pursue this person in a foreign country, that it was not something that we should engage in, are you saying that in the past the minister could not have intervened?

Mr. Don Piragoff: I said it was never formalized. It was a discretion that the minister exercised, but the act never permitted that discretion.

Mr. Peter MacKay: It wasn't articulated.

Mr. Don Piragoff: It wasn't articulated. This bill makes it clear that Parliament is now telling the minister he or she has that discretion, whereas before it was just the minister exercising that discretion.

The fourth area of protection with respect to evidence is that for any evidence is collected in Canada—for example, if the police interview someone in Canada—Canadian rules of evidence must apply. So actually, that might require a witness to come and testify before the extradition judge. Basically, evidence in Canada must meet the Canadian standards. Evidence collected outside of Canada will have to meet certain standards that the bill sets with respect to its collection or with respect to its certification by a prosecutorial or judicial authority outside.

Mr. Peter MacKay: Is there any necessity for or consideration given to the existence of reciprocal agreements between countries? Does that come into play at all?

Mr. Don Piragoff: Reciprocity is not mentioned explicitly in the bill, but it is a factor Canada might look at with respect to another country. I mentioned Japan, for example, as a country which does not enter into extradition treaties. Their law provides for extradition without a treaty, but before they would extradite, they often look at the other country and ask if that country would ever give them reciprocity. In the past, we were not able to give Japan, for example, reciprocity. We would now be able to say to them that we can give them reciprocity because we can extradite under this piece of legislation without the necessity of a treaty.

Mr. Peter MacKay: Okay. I have just one final, very specific question.

The Chair: Go ahead.

Mr. Peter MacKay: What were the reasons behind dropping the requirement for laying extradition agreements before both houses of Parliament. That's in clause 8. Was that done intentionally?

Mr. Don Piragoff: I don't recall that the existing law requires it to be put before Parliament. It has to be published. I think the bill tries to treat extradition treaties like other types of international treaties, that they be gazetted in the Canada Treaty Series.

Mr. Peter MacKay: Thank you.

• 1000

[Translation]

The Chair: Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): If I understood correctly, in the first answer to the first question, we came back to the principle that extradition is an act between sovereign States, sovereign executives.

I believe too that this bill has the effect of expanding on this notion to include, for example, international criminal codes. That's why we're introducing the new term "partner", if I understand correctly.

To what extent will other States accept the definition we're giving to the term "partner" in enforcing extradition, not only to other sovereign States, but also to international organizations that have been recognized by treaty or by multilateral decision?

Mr. Jacques Lemire: It's true that the new legislation would allow Canada to extradite people not only to a State, but also to a partner, as defined in a broad sense, which includes international criminal courts. It is up to Canada to determine to what kind of partners it wishes to extradite people. The names of these partners are to be found in the treaties that we have signed with other countries and they may also be placed on the list of countries and territories with which we wish to maintain extradition relations. Obviously, it is up to Canada to determine the parties with which it intends to maintain these extradition relations.

Mr. Jacques Saada: I'm quite clear on all that. What I really wanted to know was whether the principle of partnership is becoming increasingly accepted internationally or whether Canada is breaking new ground in this area. What's the current situation? For example, if this international criminal court is set up, how will other countries deal with this new entity, compared to us? Are we in the forefront or is this a widespread tendency?

Mr. Jacques Lemire: I think that this question of partnership reflects Canada's intention to indicate that we are working in partnership to fight crime. It was Canada's decision to use this term. Each country is free to decide how extradition relations may be considered or managed under its domestic laws. Generally speaking, we can expect there will be fairly broad support for Canada's proposal regarding extradition to international criminal courts.

Now, how will each country choose to deal with this possibility of extraditing to an international criminal court in its domestic laws? It is up to individual countries to decide. In this matter, I think that Canada has adopted a pioneering position and is supporting the role that these international courts should play.

Mr. Jacques Saada: Does this bill have implications for military courts? I'm not referring here to war criminals. Will this bill have implications for military courts as such, for example, for Canadian military courts?

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Mr. Jacques Lemire: As far as military offences are concerned, the applicable principle is called the rule against double jeopardy. This rule does not in itself distinguish between what is proper to the court itself and what is proper to the very nature of the offences.

Moreover, under the terms of clause 46, an extradition must be refused if the offence is a strictly military offence. If a foreign State asked us to extradite for a purely military offence, the minister would refuse to extradite. This provision reflects the practice under international treaties, which is to refuse extradition in the case of purely military offences.

Mr. Jacques Saada: I wasn't really referring to that. Let me ask my question again. My question was really not very well put. Take the example of a member of the Armed Forces posted abroad, who commits a crime that has nothing to do with a war crime or with the performance of his military duties. The military courts usually take care of such cases.

What you're telling me is that it does not apply to this kind of specific case, because you are talking about criminal acts that a foreign country has alleged took place, but which would have taken place in the performance of official military duties. In my example, it's not the case, it's not what I'm referring to. What I'm referring to is the example of a member of the Armed Forces who commits an offence, not in the performance of his military duties, but in an individual capacity, while on a military posting overseas.

Mr. Jacques Lemire: Extradition is possible in such instances.

Mr. Jacques Saada: Under the provisions of this bill?

Mr. Jacques Lemire: Yes, it's possible. It is in no way ruled out by the bill. If you're talking about a request that could be made by Canada to a foreign country, to extradite a member of the Armed Forces for conduct that would be considered an offence under common law, the extradition would certainly proceed.

Mr. Jacques Saada: Thank you.

[English]

The Chair: Thank you. John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Madam Chair.

I'd like you to address your minds to subclause 44(1), reasons for refusal, and the apparent override the Minister of Justice will have with respect to an immigration refugee determination process. Could you describe how it will work? I'd like it if you could use an example.

My suggestion is that you use the example of blasphemy in Pakistan, which is a capital offence there. A number of Pakistani Christians and Ahmadi Muslims flee from Pakistan to Canada because of religious persecution, apparently having committed blasphemy in Pakistan. I'm not sure whether Pakistan is one of the countries to which we are a signatory, but the offence is clearly a capital offence in that jurisdiction.

So let's say the evidence is overwhelming that the offence has been committed in that jurisdiction. Work me through this process where the Minister of Justice is having to make a decision to commence the extradition process. And how is that different from what it is today?

Mr. Don Piragoff: I'll start with your last question: how is it different from what it is today? It's not any different from what it is today, other than the fact the discretion has never been set out in statute. It has just simply been there: the minister has the discretion to exercise because surrender is a discretionary act by the executive.

Subclause 44(1) tries to mirror the Supreme Court cases which say that under section 7 of the charter there are certain situations where it would be unconstitutional to send a person back to another country.

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An example given by the Supreme Court was torture. If a person is going to be tortured in the other country, it would be unconstitutional for a minister to exercise her or his discretion to send that person back.

What 44(1) does is provide an overriding discretion to the minister. It overrides whatever is in any treaty or whatever type of specific agreement might be arranged between the two countries. The minister has the statutory power to essentially override a treaty.

If a treaty did not provide for one of these grounds of discretion, the minister could legitimately say she is not going to exercise it, she is not going to send the person back, for example, in the situation given, because she believes the person is actually going to be prosecuted or punished because of religious views and not because of the commission of a criminal offence. There may be some criminal offence involved and that's why they're asking for this person's extradition, but the real reason they're asking for the extradition on what might be a minor or medium type of offence is really that they want to punish the person because of his or her political views or statements.

Mr. John McKay: What would be the operative difference between what the immigration minister does now in terms of a risk review and how the minister would exercise his or her discretion under clause 44? Is this just a little more sophisticated version of risk review?

Mr. Don Piragoff: It's very similar, and it would incorporate the type of decision that is made by the immigration minister. If in fact there is a refugee claim as well— Suppose it is, as Mr. Lee raised, a question of both deportation proceedings and extradition proceedings. The bill provides that the minister, in making this decision about surrender, shall consult with the immigration minister with respect to the validity of the refugee claim.

Mr. John McKay: But it's the justice minister's decision?

Mr. Don Piragoff: That's right.

The Chair: Thank you.

Eleni Bakopanos has a question.

Ms. Eleni Bakopanos: Yes, a very short question, Madam Chair, thank you.

First of all, I also want to thank the officials for one thing that I found very useful, and which I hope my colleagues have looked at: the diagram which describes what the two acts are about and what changes were made.

I would like to know if the infamous or high-profile case of Mr. Ng would occur today under the proposed legislation. Would it have taken that long to extradite?

Mr. Don Piragoff: No. The reason for the delay in the Ng and Kindler cases was the complex system of appeal that existed prior to 1991-92, that is, an ability to appeal both in the provincial court and the Federal Court at the same time. The legislation of 1991-92 streamlined the appeal process to say say that there was only one avenue of appeal, not two. We have found that since that legislation has been enacted it has significantly reduced the amount of time required for a case to go through the appellate process.

Ms. Eleni Bakopanos: Under the proposed legislation, if there had been no amendment in 1991 would the minister's discretion under the proposed legislation have overridden and enabled the Ng case to be pushed forward a lot faster? Because I think there has been a lot of talk about the minister's discretion, so I'm trying to think of another difficult case like this one. Would the minister have more powers, if you want to put it in that context, under present legislation and be able to extradite a lot more quickly?

Mr. Don Piragoff: I'm not sure I understand the question.

Ms. Eleni Bakopanos: If we had the Ng case right now and we were still stuck, would the minister be able to override and go ahead and extradite Mr. Ng under the present legislation?

Mr. Don Piragoff: Under this bill, a case like Ng would have proceeded a lot more quickly. Even though the United States is a common law country we had significant difficulty getting the United States officials to give us the evidence in the form we needed. We actually even had to send one of our own lawyers to California to help them put together the affidavits.

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That would not be required under this legislation. That's one of the first things that would improve the process. We wouldn't have to waste as much time as we did in the past, basically in trying to get evidence in the proper form of paper when really the substance was there in any event.

The second reason a case like Ng would move more quickly is the amendments of 1991-92, which we've mentioned.

With respect to the question of the exercise of the ministerial discretion, one of the big reasons why Ng and Kindler took so long was that the minister was exercising discretion to surrender in that case and the decision was challenged by the person. That was one of the reasons why it went to the Supreme Court.

That Supreme Court decision has resolved that the minister does have a discretion and is able to surrender a person with respect to a death penalty case. This bill incorporates the ruling of the Supreme Court of Canada. So by incorporating the Supreme Court ruling, when the minister exercises her or his discretion pursuant to this legislation he or she would be acting in accord with the Supreme Court, and that then of course removes another avenue for an appeal, because basically the minister would be saying, “I'm acting in accordance with the rulings of the Supreme Court. It's not a ground of appeal to challenge my discretion as long as it's in accord with what the Supreme Court says.”

And this bill is in accord with the Supreme Court ruling. So it would be quick enough, for those reasons.

The Chair: Thanks.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): Just to clarify this in my own mind along the lines of what Mr. Lee was asking about, we had a case in B.C. a few years ago—and it was low-profile—in which a fellow escaped from a Colorado prison, I believe, ran across the border and was picked up in southern B.C. The States wanted him back, we wanted to deport him, and then he put in a refugee claim. Do I understand that now the refugee claim has to run its course before anything else can be done? Is that what you're saying?

Mr. Don Piragoff: No. If the refugee claim is made, that refugee claim will now be determined in the context of the extradition proceeding rather than the deportation. Rather than having two tracks, the tracks are merged into only one track. There's one decision made by a court and one decision made by one minister, as opposed to the old system where you had a court making a decision, a board making a decision and two different ministers making a decision.

Mr. Chuck Cadman: So hopefully it'll shorten that whole process.

Mr. Don Piragoff: That's right.

The Chair: Clause 96 of the new bill covers that.

Mr. MacKay, you had a brief question.

Mr. Peter MacKay: Yes, very brief.

The Chair: Keep in mind that your chair has a question or two.

Mr. Peter MacKay: Sure. I'm just looking specifically for references to powers of arrest and seizure of property or evidence that might relate to a person who has sought asylum or has come to Canada to escape prosecution. What clauses deal specifically with that? And what evidentiary rules apply to the deportation of not only the person but any physical evidence that he or she may be in possession of? Clause 89 talks about the Canada Evidence Act, but—

Mr. Jacques Lemire: Let me draw your attention to clause 39, where, essentially, the extradition judge, when ordering committal of the individual, may order that objects seized when the person was arrested and which may be evidence or may be used in the prosecution can be sent to the foreign state with the person upon surrender. And the judge may impose conditions relating to the return of these objects. That's consistent with the present practice. This deals with the particular concern you have with respect to the sending of evidence seized at the time of arrest.

Mr. Peter MacKay: What about search warrants? What if they're looking for the Hope diamond and the guy doesn't have it on him?

Mr. Jacques Lemire: That's right. The authority to seize at the time of arrest is limited to what's on the person or in the immediate vicinity of the person.

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It is possible for foreign authorities who are investigating a foreign offence and looking for evidence for their own prosecution to apply to Canada under a treaty on mutual legal assistance for Canadian authorities to conduct in Canada, on their behalf, a search for evidence to be used in the foreign prosecution.

The Mutual Legal Assistance in Criminal Matters Act provides for the implementation of such requests, which are made pursuant to treaty. The execution of searches and procedures occurs pursuant to these provisions once an arrest warrant has been issued by a Canadian judge upon being satisfied that the grounds listed in the Mutual Legal Assistance in Criminal Matters Act are covered.

Then the judge issues the warrant to be executed by Canadian authorities for the objects to be brought back before the judge in order for him to conduct a short hearing on the transmission of the objects to the foreign authorities.

Mr. Peter MacKay: That's outside the purview of this legislation.

Mr. Jacques Lemire: It's outside the Extradition Act. It's in the Mutual Legal Assistance in Criminal Matters Act.

Mr. Peter MacKay: Okay.

Mr. Jacques Lemire: The provisions have been in place since 1988.

Mr. Peter MacKay: This is a broader question. Have there been changes made to that act recently? Or are there changes forthcoming that you're aware of?

Mr. Jacques Lemire: Yes. There are changes made to the Mutual Legal Assistance in Criminal Matters Act which are part of this bill in related amendments. It does not pertain particularly to search and seizure, but there are amendments made to cover the notion of entity.

Similarly, in the Extradition Act, changes are made with respect to publication of the treaties. Also, changes are made in order to allow Canadian authorities, where a request is made by a foreign authority under a treaty, to order a person in Canada to attend at a specific location in Canada where facilities are available for the transmission of the person's testimony by way of video link to the foreign state. A scheme is put in place for that purpose by the amendments included here.

And in regard to the reverse, amendments to the Criminal Code are proposed in the legislation, whereby video-link evidence from a person who is outside Canada or a person who is in Canada can be used in the context of a Canadian trial for the purpose of evidence. Similar provisions allow for the use of audio link as well as video link in the context of a Canadian prosecution. These amendments pertain to the Criminal Code.

Mr. Peter MacKay: With respect to physical evidence, though, for a search warrant presumably there is a requirement for a reciprocal agreement with the country for which that evidence is sought. I suspect there's a similar criteria that has to be met by the other country in order for the warrant to be granted.

Mr. Jacques Lemire: In the context of executing mutual legal assistance—a request from a foreign state—there has to be a treaty in place.

Mr. Peter MacKay: Okay.

Mr. Jacques Lemire: These treaties provide for the types of assistance that the countries agree to provide to each other in accordance with the law.

The Chair: Thank you, Mr. MacKay. Mr. Lee.

Mr. Derek Lee: Just to get back to this interface between the Immigration Act and the Extradition Act, could I refer you again to clause 96? I just have a little wording problem here.

Some hon. members: Oh, oh.

Mr. Derek Lee: I'm sure it's just fine, but I thought I'd ask. Most of the time I'm not correct in my wording questions. The department usually has it right.

In lines 3 and 4 of proposed subsection 69.1(12) of the Immigration Act referred to in clause 96 of this bill, it says, “If authority to proceed has been issued under section 15 of the Extradition Act with respect to a person for an offence under Canadian law that is punishable”, etc.

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Are we not referring there to the offence in the foreign country? Because in the case of the Extradition Act, we're not dealing with an offence in Canada, we're dealing with an offence in the other country. I could be wrong, but I would suggest that it should read, “with respect to a person for an offence that under Canadian law is punishable under an act of Parliament”.

Do I have that right or wrong?

Mr. Don Piragoff: Under the existing law today, your analysis would be right.

What this bill does is resolve a problem that we had in the past, and still have, as to exactly what the extradition proceeding is commencing upon. Is it the foreign charges? Is it the equivalent of the foreign charges under Canadian law? This legislation tries to resolve that problem.

Courts across the country do different things, and what this does is make a decision. It says that the minister, when she or he receives a request for something— let's say it's an offence against the RICO statute in the United States, the Racketeer Influenced and Corrupt Organizations Act. Is the judge in Canada looking at whether the conduct in Canada would amount to an offence against RICO, which doesn't exist in Canada, or is the judge in Canada looking at the conduct and determining dual criminality on the basis of what that conduct, which they say is a violation of RICO, would amount to in Canada? The judge in Canada would be looking at things like whether it's corruption, extortion or fraud, for example.

In order to resolve that ambiguity, the bill provides that the minister will take the foreign legislation and translate it into the Canadian equivalent, and the extradition proceeding will commence upon the Canadian equivalent of that foreign legislation. That's why the lines which you refer to refer to an offence under Canadian law that is punishable by 10 years. It's the Canadian equivalent that the judge is looking at, not the foreign law any more.

Mr. Derek Lee: Okay. I understand the shift that's happening with the Extradition Act, but keep in mind that this proposed subsection 12 will appear in the Immigration Act, and if I were a person under the Immigration Act, I think I would say, “Excuse me, Madam Justice, but we're not dealing with an offence under Canadian law, we're dealing with—

Mr. John McKay: Why?

Mr. Derek Lee: The feds are using terminology that doesn't fit under the Immigration Act.

Mr. Don Piragoff: Maybe I could then draw your attention to this. Proposed subsection 69.1(12) of the Immigration Act says:

If an authority to proceed has been issued under section 15 of the Extradition Act with respect to a person for an offence under Canadian law that is punishable by an Act of Parliament by a maximum term or 10 years or more,

and in regard to that reference to section 15 of the Extradition Act, it is dealing with the authority to proceed—

Mr. Derek Lee: And that ties it all up.

Mr. Don Piragoff: Yes.

Mr. Derek Lee: Okay. I understand.

Mr. Don Piragoff: It actually says:

(3) The authority to proceed must contain

(c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person

in the foreign state.

Mr. Derek Lee: Okay.

Mr. Don Piragoff: That ties it up.

Mr. Derek Lee: So “offence under Canadian law” is a term of art.

Mr. Don Piragoff: That's right.

Mr. Derek Lee: Okay. That's fine.

And secondly, let's say we have a person in flight in Canada from the U.S.A., and that person is an escapee from a corrections institution in the U.S.A. who has a conviction record as long as his or her arm, all for offences that are punishable under Canadian law by 1 year, 2 years, 5 years, 6 years or 7 years, whatever the Criminal Code says. But he or she never hit the big one, never got the 10-year sentence, had 25 years of consecutive sentences all lined up in this U.S. institution, and managed to escape, got across the border and said, “Ha! I'm a refugee.”

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Am I correct in assuming that under this section, and with those facts, we haven't avoided the double track? In fact, because that person with the 25 years of sentences doesn't have a maximum 10-year conviction, we still have the refugee hearing going on. And if that's correct, could one consider inserting a provision that would deal with that kind of a scenario, where a person has escaped from a prison term of 20 years and is looking at Canada as a safe haven?

Mr. Don Piragoff: This bill tries to avoid a redundancy or a duplication between the refugee process and the actual extradition process. One of the exemptions or exclusions for claiming a valid refugee claim is that you are wanted in the foreign state for a serious non-political offence. The refugee convention does not define what is meant by “serious non-political offence”.

What we've said is that if there is both an extradition claim and a refugee claim, and if the judge is satisfied that the offence for which the person is being sought is equivalent to a Canadian offence which has a maximum of 10 years or more, then that will be deemed for our purposes to be a serious offence of a non-political character. That ends that issue of the refugee claim and then the rest is dealt with by the minister.

If the judge says that it is not an offence punishable in Canada by ten years or more, then the refugee claim can continue and recommence in the IRB. One would then look at the criteria that one applies in the refugee board as to whether—notwithstanding that this might be less than 10 years—in all the circumstances this person should not be granted refugee status and should still be sent back.

Mr. Derek Lee: Okay. And just to complicate it in the scenario I offered you, that person would not be sought by the extraditing country for an offence other than the offence of escaping, which, under Canadian law— what is it? A couple of years for an escape? So even a person convicted of murder and serving a life sentence in a foreign jurisdiction would not be sought for the murder when he or she escaped and crossed the border; he or she would be sought for the escape, which would be a 2-year sentence. Have I got that right or wrong?

Mr. Don Piragoff: No.

Mr. Derek Lee: Do I have it wrong?

Mr. Don Piragoff: Yes. I won't say you have it wrong. It's a yes-and-no answer.

Some hon. members: Oh, oh.

The Chair: Go ahead, Mr. Piragoff.

Mr. Don Piragoff: Thank you.

Yes, the foreign country could make a request for the escape, which, as you said, would be 2 years— However, extradition can also be sought not only on the basis that you want a person back to prosecute him or her for an outstanding offence but also on the basis that he or she complete an outstanding sentence. So if the outstanding sentence is murder and he or she is in jail for life in the foreign state and escapes, the other country would probably make two extradition requests: one, that he or she be returned in order to complete the outstanding sentence; second, he or she could also be prosecuted for the escape. So we would send them back for both.

Mr. Derek Lee: Thank you.

The Chair: Thank you, Mr. Lee.

I have a couple of questions. Mr. Perigoff, earlier I thought you said that even under the present extradition law the evidentiary burden is greater than it is during trials. I'd really like you to give me a couple of examples of that, of how the evidentiary burden on the crown is greater in extradition proceedings than it is, say, in a regular criminal trial. I thought you said that.

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Mr. Don Piragoff: I'll give a general situation, and Mr. Lemire, who actually does extraditions at the operations level, can maybe give you an actual case.

Under the existing law in Canada, the courts have the discretion to admit hearsay even if it doesn't fit within the traditional exceptions to the hearsay rule any more. They can now look at a flexible test of determining whether the evidence is reliable, whether there is a circumstantial guarantee of trustworthiness, and secondly, whether the evidence is necessary. Under the extradition law, the courts still had to apply the old law, which was that hearsay is inadmissible, that documents are, prima facie, hearsay and the only documents admissible in an extradition hearing are first-person affidavits or documents which are annexed to first-person affidavits.

If you have a situation where you have a complex fraud and there are 50 boxes of documents, you then must have an affidavit trying to explain all the documents in 50 boxes. In a normal trial, you wouldn't need to have an affidavit explaining 50 boxes; you'd probably have a witness who would take the stand, give testimony and make reference to the documents. The documents would quite often be introduced in evidence as an exhibit.

The Chair: And subject to cross-examination.

Mr. Don Piragoff: That's right. The person would be subject to cross-examination.

The Chair: But your documents aren't.

Mr. Don Piragoff: That's right. In extradition proceedings there is no cross-examination, unless of course there is a witness. And there can be a witness, as Mr. McKay was asking about. If evidence is collected in Canada, the witness would have to attend. Or, also, nothing precludes the foreign state from actually sending a witness. I think there have been some situations. It's unusual, but it could happen. A witness could come to Canada.

Mr. Jacques Lemire: Mr. Piragoff focused very clearly on one of the particular issues that we have, and it's in big fraud cases or money-laundering cases, where we are faced with a request which pertains to serious crimes that are committed in a very clever way, in fact, in a way that's intended to muddy the waters for investigating authorities so that they do not find the traces or the real people through corporate set-ups or montages.

It becomes very difficult for a foreign state that has to chase documents across Europe, for example, to put a case together in a way that is admissible in Canadian law: by having specific bank officials provide documents, voluminous documents, and explain these documents, and by having the proper witnesses to provide these documents and explain them, and then having all these documents translated into either of our official languages. In these circumstances, we are faced with a very difficult and very often insurmountable task for foreign officials in putting a case that will withstand judicial scrutiny in Canada at the extradition hearing.

With the proper certification by the foreign official that the evidence is available and that it's been gathered in accordance with their law or that it justifies a prosecution in that state, the new provisions allow for the admissibility of a summary of the evidence into evidence in order that it be considered by the judge to determine whether or not there's a prima facie case against the person.

In this way, I think we're making headway in the context of extradition, where we have to bear in mind that the trial will take place in the foreign state and where the evidence will be fully considered and the individual will be in a position to make a defence in order that the full facts be considered by the trial judge or jury in that state where the trial is to take place.

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The Chair: I don't want to necessarily draw a negative inference or have people necessarily think that I'm taking a negative view of this next thing, but it's certainly a perception problem in our system.

As this stands now—the present act and the bill we're working on—you have the minister performing two roles. She is prosecuting as Attorney General and ultimately she has an administrative decision in her role as Minister of Justice. This bifurcated role is, in my view, not a bad thing, but there's always a problem of perception there. We had a problem of perception in the Airbus case. Some would argue that we had a problem greater than that, but my view is that we had a perception problem. And we're always going to have a problem as long as the Attorney General and the Minister of Justice are the same person.

Can you explain that role a little, how that operates? Functionally, how does it operate within the department? How does it protect her from that?

Mr. Jacques Lemire: The concern you are raising was considered in the past. In the context of the scheme as it is proposed, the role of the minister arises at two separate times or moments in the process.

The first one is at the time of considering whether or not to proceed with the request for extradition. At that point, when issuing the authority to proceed, the minister essentially realizes that there is an extradition request and determines whether or not the basic requirements of the legislation or the treaty have been met with respect to the foreign law aspect. Then the minister identifies the relevant conduct and asks the court to determine whether or not there is a prima facie case of that conduct against the individual.

The initial consideration for the minister is specific in the sense that it pertains to an executive duty in determining whether or not to proceed with the request. The role of the judge is specific and limited: it is consider the evidence.

In the context of the extradition hearing, the foreign state is represented by agents of the Attorney General of Canada. Their role in representing the foreign state is that of presenting the evidence for the judge to decide. Once that decision of the judge is made, which is specific on a single question—is there a prima facie case based on the admissible evidence?—then the minister has different questions to decide upon. This pertains to grounds of refusal, treaty requirements and so on.

The Supreme Court, in the cases of Cotroni and Dynar, has had to consider these arguments and has determined that in view of the specific roles and the questions to be answered there is no conflict of interest between an agent of the Attorney General representing the foreign state for the specific purpose of the extradition hearing and the minister herself in the context of making a political decision on executive issues in managing essentially the treaty relationship in view of the applicable law. There's no conflict of interest. That has been resolved and it's settled.

The Chair: As the agent of the Attorney General of Canada, around 1987, I think, I acted on an extradition. I was a member of a law firm that had the agency work.

It was a Tory law firm, Peter, you'll be glad to know that.

Voices: Oh, oh.

The Chair: I did one of these and it was interesting for me. Actually, I should probably raise this tomorrow with the minister, but it was an interesting process. I'm one of the few lawyers I know who has ever done an extradition, particularly from the crown's perspective. I take it that all extraditions that are undertaken to a foreign state are done by federal crowns, not by local crown attorneys?

Mr. Jacques Lemire: That's right.

The Chair: Is there support for the lonely agent who's out there? I can tell you there wasn't for me. I was supported by a paralegal, I think, in 1987-88. I had to go to the courthouse and look up forms in order to get the precedents. I had no assistance from the police. I actually instructed the police because the police had never done it before. It was a lot of fun, but it was a very strange and unsettling operation.

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Is there more support now or do you have a policy of sending people from the actual justice department instead of a rent-a-crown?

Some hon. members: Oh, oh.

Mr. Jacques Lemire: If I may just continue, there is a distinction in the functions, but it's essentially separate personnel who handle the request. In Ottawa there is a central authority, the international assistance group, which is more concerned with ministerial functions.

In the regions, it's the agent of the Attorney General in the province where the fugitive is located or is believed to be located who represents the foreign state in that particular capacity of conducting the proceedings.

The number of cases has evolved, and the practice has evolved as well, to the extent that there are many units, for example, in Montreal, in Toronto and in Vancouver, which are the main extradition centres throughout the country. They deal more specifically with these applications for extradition and present cases. So there are, I would say, dedicated resources to these specific cases.

The Chair: So the policy, then, or the practice in the department is to allow a part-time prosecutor, a per diem prosecutor, to handle an extradition. That's the way I've always seen it and it just seems to me that this is a pretty important function, a pretty heavy-duty function, that the state is performing.

And this may not be a fair question for you, Mr. Lemire, but it seems to me that the department might want to take a look at who's doing it. Because I was really flying alone. I did a fabulous job, though—

Voices: Oh, oh.

The Chair: —for $55 an hour, as I recall.

Mr. Jacques Lemire: I can advise that the extradition requests are handled by permanent crowns out of our regional office. That's the standard, normal practice. These are usually senior prosecutors assigned to handle these cases. They have support. As well, you indicated that you were on your own getting a warrant and all of that. More and more throughout the country there are police resources that focus on fugitives or have developed practice in working with the federal prosecutors in addressing extradition issues.

The Chair: I recall that in this one the RCMP said, “Nah, it's not our file”. It was the city of Windsor police and it worked out. It was probably not as disconcerting as I recall it being; I just have more experience now and know that I probably should have had more support; then, I probably thought I was playing dragons.

Mr. Jacques Lemire: In my view, over the years practice has developed and it works very well in regard to co-operation between permanent, experienced, federal crown prosecutors and police authorities.

The Chair: So if there's another extradition in Windsor, it's likely somebody would come from Toronto to do it rather than a person inexperienced in it in Windsor.

Mr. Jacques Lemire: The general practice is for permanent crowns to attend these cases.

The Chair: Okay.

Mr. Jacques Lemire: It does not exclude, on occasion, standing agents contributing, but generally federal crown counsel handle these matters.

The Chair: In the early 1980s, there was a case involving a developer in Toronto who was scooped by bounty hunters from Florida and taken back to Florida for prosecution. Mark MacGuigan, my predecessor in my riding, was the Attorney General at that time.

What have we done about that? What would happen if a bounty hunter came to Canada and did a de facto extradition of a Canadian national to an American court now? How would we deal with that? Have we fixed that? Because we didn't get that guy back, as I recall. Did we get him back?

Mr. Jacques Lemire: I think so. I think that further to this case there were discussions between Canada and the United States concerning these matters, and Canada expressed to the United States the fact that this was not acceptable and that we would consider seeking extradition for individuals who undertake such conduct in our territory. This was the subject of discussions between Canada and the United states and it's reflected in exchanges dating back to 1988, if I recall.

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The Chair: So it is sorted out?

Mr. Jacques Lemire: The issues were discussed between officials and Canada made its view very clear: that it found such actions were not acceptable, that we could seek extradition for offences committed by officials or bounty hunters coming to Canada and essentially kidnapping, and we would pursue extradition in these circumstances. My recollection is that this was the thrust of the position we expressed to the United States at the time.

The Chair: So if it happened again, we'd charge those guys with kidnapping and be off to the races, would we?

Mr. Jacques Lemire: They could be charged with kidnapping. But in such circumstances, obviously, it's for competent Canadian authorities to determine whether there's a case and whether charges are to be laid. And in those circumstances, the relevant Attorney General, the Attorney General of a province, would have conduct of such prosecution, as opposed to the Attorney General of Canada. The Attorney General of a province could apply to the Minister of Justice in order that extradition be requested from the foreign state.

The Chair: Thanks.

Mr. Jacques Lemire: You're welcome.

The Chair: Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): I remember this particular case. I monitor criminal cases— I don't know why. The two bounty hunters were extradited to Canada and were tried and convicted, with minimum sentences, but at least we went through the motions.

The Chair: Thank you. I had forgotten where that went. I just have this vision of Mark MacGuigan on 60 Minutes and me thinking, “What aren't we telling them?”

Let me just ask one other question. Unless colleagues are antsy, I'd like to ask a question about the case of a false affidavit, as in the case of Leonard Peltier. The U.S. affidavit was later determined to be false. I know what the government would say with respect to the specific Peltier case. The fact is, there was a false affidavit in that case. How are we going to deal with that? How does this bill deal with that? How can we avoid that happening? How do we test those affidavits? Or do we just trust the CIA or whoever is making them?

Mr. Don Piragoff: The problem with the affidavit approach is that other than the affiant on the affidavit there really is no one accountable for the whole extradition case. So where there is a false affidavit or an affidavit which is erroneous, under the existing system there really is no one in the foreign country who is accountable. Basically, they say they can't be accountable for someone who has signed a false affidavit. That's what the Attorney General would say.

Under this particular scheme, in the United States, for example, we are asking an Attorney General, either at the federal level or the state level, or some other senior prosecutorial official, to say, “What is your case? And will you certify to us that you have enough evidence to go to trial? And based on the evidence you have, is it sufficient to take the matter to trial in your jurisdiction?” So if there is false evidence that has been submitted knowingly to Canada, we can hold the other country accountable on the basis that they have actually certified to us that they had evidence sufficient to go to trial.

They may never be able to verify as to the truthfulness of a witness, because a witness can always turn and change a story once he or she gets on the stand at the trial. It happens even in this country. The police think this witness is going to say one thing and then once you get to trial, the witness says something totally different; rather than say the car was red, the witness says it wasn't really red, it was kind of magenta. It's not really a falsehood; it's kind of a wishy-washy, grey area of falsehood or a misinterpretation of what the evidence was.

What we're asking the foreign authorities to do is to certify that they have a case, that they're willing to stand by this case and to certify exactly what the case is that they're willing to stand by, so that if something happens and evidence is later proved to be false, we can go back to the foreign authorities and say, “You certified to us that you had this evidence and that the evidence existed for trial and now we find out that you never had this evidence.” Or we find out that the evidence was all false.

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That would then be the subject of, first, as Mr. Lemire said before, exchanges between the two governments, but, second, it also may affect any future relationships between Canada and that particular government, because we could say they cannot simply blame this on someone who did an affidavit. They were responsible for ensuring that they had a case before they made the request to us.

The Chair: Now, is this a lesson that we learned from the Peltier case? In terms of Peltier, I believe it's the government's position that the false affidavit didn't have a bearing on the result, but did we learn a lesson from that case? Is that case frequently in our minds?

Mr. Don Piragoff: This legislation would help resolve that problem for us, because it does hold someone in the foreign state accountable to us for giving us evidence which we use and then which might later turn out either to be false or not to be quite as truthful as people thought it was.

The Chair: Was I making you nervous, Mr. Lemire? Did you have something to say? I just saw a little bit of activity there.

Some hon. members: Oh, oh.

The Chair: Okay.

Mr. Peter MacKay: The reverse might be true, Madam Chair, in the case of Airbus, for ourselves; there might be lessons to be learned there.

The Chair: Oh well, we all take our opportunities to say what we have to say.

But that always has to be a concern because we're not relying on our own system. We're relying on somebody else's system when we take evidence from another state.

Thanks.

[Proceedings continue in camera]