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]

Monday, November 23, 1998

• 1536

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We have our quorum.

We postponed consideration of clause 1. I stood clause 8. The parliamentary term is that it has been stood.

We stopped at new clause 10.1, Reform amendment 3, because the department wanted to think about it over the weekend. And I think we have a proposal to amend that, don't we, Mr. Reynolds?

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): It's just to delete everything after subclause 10(3).

(On clause 10—Specific agreements)

The Chair: First of all, so that we know what we're talking about, we're on the line referred to in subclause 10(3); all the rest of it is deleted.

Ms. Bakopanos, did you want to comment on that? Am I going too fast?

Ms. Eleni Bakopanos (Parliamentary Secretary to Minister of Justice and Attorney General of Canada): Yes. We're still trying to find our way. Subclause 10(3)?

The Chair: What Mr. Reynolds is trying to do with new clause 10.1, as he's amended his motion, is to ensure that full disclosure is given to the person who's the subject of a specific agreement.

Does the department have a comment on that?

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): We think we have captured the spirit of what Mr. Reynolds was trying to do last week, and we thought that in order to do this, perhaps amending subclause 10(3) instead of creating a brand-new subclause would be the way to go. And for that purpose we have sought the advice and the support of our drafters and have come up with a form of wording that perhaps would achieve what Mr. Reynolds, and I think the rest of the committee quite frankly, would like to see.

We have these documents in both officials languages and they can be circulated, if you agree.

The Chair: Please do.

So this would be proposed, then, as a government amendment to....

Mr. Yvan Roy: As a government amendment, Madam Chair, to subclause 10(3) in the hope that it is achieving what I think Mr. Reynolds and colleagues around the table would like to see.

• 1540

The Chair: We'll give Mr. Reynolds and his assistant a chance to take a look at this.

Mr. John Reynolds: They have captured what the intent was. So I can move that, if you'd like.

The Chair: All right. Is that agreeable, then? So now we're withdrawing Reform amendment 3, which is a new clause 10.1. And in lieu of that, Mr. Reynolds is now moving that Bill C-40, in clause 10, be amended by replacing lines 12 to 20 on page 5, with the following:

Evidence

to which is attached a copy of a specific agreement entered into by Canada and a State or entity is conclusive evidence of the agreement and its contents without proof of the signature or official character of the person appearing to have signed the certificate or agreement.

That motion's on the table, then. Discussion? Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I'm just looking at the original: “is conclusive evidence of the statements contained in the certificate without proof”. In “is conclusive evidence”, you've dropped the word “evidence”.

Mr. Yvan Roy: It's in the text; “conclusive evidence” is there.

Mr. John McKay: It's still there in “is conclusive evidence of the agreement and its contents”. Okay. And that will have probative weight?

Mr. Yvan Roy: Probative weight and the full disclosure, which I think was the problem raised last Wednesday when we appeared before this committee, to make sure it is given and it's before the judge. This amendments seeks to do that, in no uncertain terms.

The Chair: Mr. McKay, does that answer the concern you have?

Mr. John McKay: It seems to have, yes.

The Chair: Okay. Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Yes, I'm sorry, I feel very stupid here, but I can't actually see line 12 being the starting point of this and I can't read it properly based on the.... Perhaps someone could help me out. I go to line 12 and it ends with the word “specific”. This amendment replaces lines 12 to 20, as I read it, and I....

The Chair: Can I help you?

Mr. Derek Lee: Yes.

The Chair: Subclause 10(3) reads, as follows:

(3) A certificate issued by or under the authority of the Minister of Foreign Affairs

Stop, full stop. Now, start reading:

to which is attached a copy of a specific agreement entered into by Canada and a State or entity

Mr. Derek Lee: Okay.

Ms. Eleni Bakopanos: It's not 12. Yes, he's right.

Mr. Yvan Roy: If I may, I think it depends on what instrument is being used. The bill, as printed by the House, is the one we're working from, instead of perhaps the copy you have, which is the one that was tabled originally. That is why the lines may not completely fit what we're trying to achieve.

The Chair: I have the bill printed by the House and it fits.

Ms. Eleni Bakopanos: We're working on another copy, Madam Chair. We have two copies.

Mr. Derek Lee: Mr. Roy is correct. There are two copies floating around there, that's the problem.

Thank you. That answers my question, Madam Chairman.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ):

[Editor's Note: Inaudible]

The Chair: It's hanging on 14 in the French. No, it's not line 14 in the English, Mr. Turp. If you read the English, we're on page 5—

[Translation]

Ms. Eleni Bakopanos: Lines 9 to 17 in the French version.

[English]

The Chair: But en anglais—

[Translation]

Ms. Eleni Bakopanos: The subclause begins on the same line in the English version.

[English]

The Chair: —subclause 10(3) reads:

(3) A certificate issued by or under the authority of the Minister of Foreign Affairs

That ends line 11.

[Translation]

Mr. Daniel Turp: I see now. Thank you.

[English]

The Chair: And then we get rid of line 12. All set?

Mr. Derek Lee: Yes. Madam Chair, some of us will be disabled in dealing with any other amendments because we don't have the same copy of the bill the chair's working with and that the counsel are working with.

The Chair: We have other copies and we'll circulate them.

Mr. Derek Lee: Thank you.

The Chair: In fact, maybe there's a reason for that. We're just trying to keep you off balance, keep you on your toes. I'm trying to keep Mr. Reynolds away from that hockey game.

Is there any further discussion on this proposed amendment? Mr. Turp.

• 1545

[Translation]

Mr. Daniel Turp: I have a question, Madam Chair. Am I to understand that with this amendment, a person subject to extradition will receive a copy of the agreement?

Mr. Yvan Roy: That is indeed the purpose of this amendment and we feel that we have satisfied the objective sought by the members of this committee at last Wednesday's meeting.

Mr. Daniel Turp: Am I also to understand that because of other provisions, this agreement will not be published?

Mr. Yvan Roy: You are correct, Mr. Turp. This amendment does not seek to amend the provisions of clause 8 respecting publication.

Mr. Daniel Turp: Fine. Thank you.

[English]

The Chair: Is there any further discussion on this amendment? Mr. McKay.

Mr. John McKay: I'm just trying to think of it from a defence attorney's standpoint. Will the crown, then, have any other evidence it can introduce at the actual hearing?

Mr. Yvan Roy: Of course. What this merely does is put before the court the agreement that has been entered into between Canada and the foreign state in a specific case, i.e., when the extradition of someone who is in Canada is sought and we do not already have an agreement with that country or entity for the purpose of extradition.

As for the evidence that must be put before the judge in order for the person to be extradited, the regime you have elsewhere in the act will apply. So all you have is an agreement, and then you have to satisfy a judge that you have enough evidence for the purpose of sending the person to trial, which is the test that is required.

Mr. John McKay: You don't satisfy the judge in the agreement itself.

Mr. Yvan Roy: You don't.

Mr. John McKay: You satisfy the judge outside of the agreement.

Mr. Yvan Roy: You satisfy the judge that there is an agreement between the two countries, which is the basis for the whole exercise before the judge. Judges have an agreement with state X in order to extradite Mr. Lemire. That's before the judge. Now you have to satisfy the judge that you have the evidence for the purpose of extradition. The agreement is a completely different understanding between the two parties. It replaces the treaty, really.

Mr. John McKay: The difficulty a lot of us struggle with is that we've never seen one of these and, frankly, wouldn't know one if we fell over it. So I take it that the agreement states the parties, it states in broad terms what the individual is accused of and names the individual, and then there's a signature at the base of the agreement.

Mr. Yvan Roy: Yes.

Mr. John McKay: And that's about it.

Mr. Yvan Roy: That's about it.

Then you have to satisfy the judge that there is evidence to this effect. That's a different exercise. And then the minister will have to decide whether he or she will surrender that person, again on the basis of the agreement but with the evidence that has been presented. And there is going to be a court hearing, as in any other extradition case. It's just that it's replacing this document. That instrument replaces a treaty, because there is no treaty between the two entities or the two states. That's all.

Mr. John McKay: Thank you.

The Chair: Thank you.

(Amendment agreed to)

Mr. Derek Lee: I have a question.

The Chair: Yes.

Mr. Derek Lee: Madam Chairman, as I read clause 10, it allows the entering into of a specific agreement at any time even if there is in existence an extradition treaty. And although it's nothing we can really get into deeply here, I have a sense that what may happen over time is there will be an extradition desk at Foreign Affairs and they will generate a form of specific agreement, and whenever a particular country would wish to have an individual extradited they will simply phone up the extradition desk, the standard form of specific agreement will be used on a one-off basis, and extradition will take place that way rather than people trying to work within the bounds of a treaty, rather than our ever having to amend a treaty. It's just so cumbersome that all the people involved would have to do is, in response to a letter or a phone call, just say “Here we have form 32-B, which is our new specific agreement form. Fill it out; we'll sign it, you'll sign it, and we'll get on with it.”

• 1550

Could I have a comment from Foreign Affairs about the possibility of this process evolving into a long series of specific agreement approaches rather than trying to work with the more cumbersome treaties? Or could I even suggest that you address the possibility that the specific agreement should only be used when there's no extradition treaty or no broader extradition agreement in existence?

Mr. Alan Kessel (Director, United Nations Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade): Thank you. It's our understanding that the bill has provisions for the situations where there is a treaty. It has the provision for the situation where there's a designated state, or allows for designation if the Government of Canada decides to designate. This is to take care of those rare circumstances.

But I believe the specific agreement provision is to take care of those very rare instances—I think this was elucidated very clearly by our colleagues from Justice—where we do not have a treaty with the country or we do not wish to designate a long-term relationship for a country for any particular reason.

If we see a particular need, in Canada's interest, to have that specific agreement at that specific time, I don't think we're going to have a cookie-cutter approach to this thing. This issue is dealt with very seriously. We are dealing with human beings here, and people who have rights under our charter and in other countries. I think we will give this issue the seriousness it demands.

Mr. Derek Lee: Would you agree, though, that the current wording of the act would permit what you described as the exception to the rule to actually become the rule? Would there be walking away from extradition agreements where Canada, to use the analogy you've used, doesn't really want to marry another country, they just want a night out, and we'll just have the specific agreement approach? I just ask you to allow that the current wording would allow this to evolve if circumstances were such that it should evolve that way. Have I got that right?

Mr. Alan Kessel: In any event, I'm going to answer your question.

Quite clearly, what we have here is a treaty. It's a very small, specific, directed treaty that would require that there be an Order in Council for that treaty. This means it would have to go to cabinet, as well, for that Order in Council. So I don't think we would have the capacity in Foreign Affairs to simply issue a form. The thing would have to go through the normal process for creation of a treaty, which would then be reviewed by cabinet to allow it to happen.

Mr. Derek Lee: Okay. I'll accept your answer as being a fair answer. Thank you.

The Chair: Thank you, then.

[Translation]

Mr. Daniel Turp: I have a very brief question for Mr. Kessel. Will these treaties—since specific agreements will be treaties—be the only agreements that will not be published?

[English]

Mr. Alan Kessel: They will be treated like any other treaty. They are a treaty. This is just a specific short form of treaty. In fact, you can designate an exchange of letters a treaty. You can designate a note with two paragraphs in it a treaty. These treaties will be treated as all other treaties are required to be treated.

• 1555

[Translation]

Mr. Daniel Turp: You haven't answered my question. Is this the only category of treaty that will not be published in the Canada Gazette or in the Canada Treaty Series since, as Mr. Roy explained earlier, the legislation does not require their publication? Will they be published, yes or no?

[English]

Mr. Alan Kessel: They will be published.

[Translation]

Mr. Daniel Turp: I see.

Mr. Yvan Roy: I should make it clear that clause 8 makes provision for the publication of these agreements. Let me refer you to the definition of "extradition agreement" in clause 2, which excludes specific agreements. The specific agreement as such is therefore not subject to the provisions of clause 8 currently under consideration. However, it would be the only type of agreement to be excluded from this obligation, because all other forms of extradition agreements are subject to this provision. As you can see, the definition of "extradition agreement" is quite broad:

"extradition agreement" means an agreement that is in force, to which Canada is a party and that contains a provision respecting the extradition of persons, other than a specific agreement.

Therefore, an international agreement respecting extradition in some form, in whole or in part, becomes an agreement, other than in the case of a specific agreement. All of the agreements concluded in accordance with the definition set out in the bill must, pursuant to clause 8, be published. The exception is specific agreements. However, even partial extradition agreements are agreements which must be published.

Mr. Daniel Turp: However, I understood from what Mr. Kessel said that the agreements will be published even if there is no legislative requirement to this effect set out in the new Extradition Act.

[English]

Mr. Yvan Roy: To that effect, maybe Mr. Kessel would like to be a little more precise as to whether, even though there is no legal obligation, there is intent to publish those specific accords. I don't know. Maybe Mr. Kessel, who is in charge of that division, will be able to enlighten us.

Mr. Alan Kessel: It's our practice to publish all of these treaties, and we will continue to do so.

The Chair: Mr. McKay, I just want to point out that it's 3.57 p.m.

Mr. John McKay: I know, there is a hockey game.

The Chair: We're on the first clause.

Mr. John McKay: Where is the obligation under subclause 10(1) for this to be an Order in Council? It says:

10.(1) The Minister of Foreign Affairs may, with the agreement of the Minister, enter into a specific agreement with a State

Am I missing something? Is there an obligation here?

The Chair: Mr. Kessel.

Mr. Alan Kessel: Thank you, Madam Chair.

In our system, an agreement is required to be covered by an Order in Council which goes through cabinet. As long as it's an agreement, it's a treaty, and a treaty has to have an.... Oh, I see. It's not just—

Mr. John McKay: So this is custom rather than law?

Mr. Alan Kessel: This is our practice. It's our constitutional practice.

The Chair: Is that the basis for it? That's what he wants to know.

Mr. Alan Kessel: No.

Mr. John McKay: There is no statutory basis for it.

Mr. Alan Kessel: No.

Mr. John McKay: Again, we're all dancing in the realm of the theoretical here, but why couldn't subclause 10(1) be used to do an end run on a proper extradition treaty?

Mr. Alan Kessel: I'm sorry, I don't understand the term “end run”.

Mr. John McKay: Could you use specific agreements to do an end run on an extradition treaty?

Mr. Daniel Turp: But what does that mean?

Mr. Derek Lee: Avoid.

Mr. John McKay: It means to avoid.

Mr. Alan Kessel: Clearly this is designed for those occasions where we either determine we do not want a full-length commitment on extradition, or we have decided not to designate. Maybe there is something in the interests of Canada, or we have determined the specific case needs to deal with the removal of this person through our extradition procedure but we're not willing at this point to either designate or enter into a treaty relationship, or the treaty relationship would take too long. We have an individual in the country we wish to deal with immediately, and that would take care of it.

Clearly, if it were determined that there was an interest in having an extradition treaty or designation of this particular country, it is something that could be decided by the government.

• 1600

Mr. John McKay: In theory, you could have a treaty relationship and still enter into a specific agreement with respect to an individual.

Mr. Alan Kessel: I would not see the reason for that. The treaty relationship—

Mr. John McKay: I don't immediately either, but I'm querying here whether specific agreements can be used to avoid the provisions of an extradition treaty.

The Chair: Mr. Roy is just dying to jump in here, so let's let him.

Mr. Yvan Roy: I am not sure, Mr. McKay, what would be the purpose of trying to do the end run around the treaty you're talking about. The specific agreement must be, by the very terms of the statute, narrower than what you can do with the treaty, generally speaking. In other words, the specific treaty must be in accordance with the guarantees you already have in the act and you cannot, through a specific agreement, overrun those provisions. It's difficult for Mr. Kessel, and also for me, to see why that would be attempted.

Mr. John McKay: Different evidential standards.

Mr. Yvan Roy: The law continues to govern. The evidential standards you have in this piece of legislation apply throughout whatever type of agreement you have. If the government of the day were to do something like this, they would end up shooting themselves in the foot.

Mr. John McKay: What's your point? We won't get into that.

Mr. Yvan Roy: You cannot do more with this specific agreement than what would be done with the general agreement we're talking about. I don't know what would or could be achieved with such an agreement.

Mr. John McKay: Okay.

The Chair: The evidentiary rules of the Extradition Act would apply whether you were using a general treaty or a specific agreement. There would be no reason to go to a specific agreement.

Mr. Yvan Roy: I agree with you.

Mr. John McKay: A tribunal versus a court.

The Chair: No. I don't think so.

Mr. Turp.

[Translation]

Mr. Daniel Turp: I asked a good question this morning because I was told that under international law, should a conflict arise between a general extradition agreement and a subsequent specific agreement, the latter would prevail, that is to say a specific agreement would take precedence over a general extradition agreement. Even though you're saying that the rules are different and that that would not be the case, perhaps it should be made clear that a specific agreement would not prevail over a general extradition agreement, because theoretically, that could happen. If this is not made very clear in the legislation, should a dispute over the interpretation of these provisions arise, the specific agreement will take precedence, in accordance with the general rules of interpretation which apply in international law.

Mr. Yvan Roy: Mr. Turp, the bill already contains specific provisions to avoid this type of situation. Clause 10(2) stipulates the following:

(2) For greater certainty, if there is an inconsistency between this act and a specific agreement, this act prevails to the extent of the inconsistency.

The legal framework adopted by Parliament must prevail and no agreement can override the provisions adopted by Parliament. Clauses 44,45 and 46 of the bill set out the reasons for refusing an extradition request. As you will note, the provisions respecting evidence in the draft legislation prevail over any agreement that may exist to this effect. This is a specific provision which applies to specific agreements. You will see later on that certain reasons for refusing a request may be invoked by Canada or may be set out in an agreement.

The specific agreement is more all-inclusive and affords better protection to an individual than any other agreement that could have been adopted. Therefore, a specific agreement mustn't override a treaty or provide greater advantages; rather, the opposite should be true. The extradition agreement can contain provisions that override some legislative provisions, but not so with a specific agreement.

• 1605

Mr. Daniel Turp: Wouldn't it be a good idea to add to clause 10 (2) that the provisions of this act or of any extradition agreement with a country with which a specific agreement has been concluded prevail over inconsistent provisions? In cases where there is a conflict between the general extradition agreement with a country and the specific agreement with a national, which of the two prevails?

Mr. Yvan Roy: I'm wondering if the problem doesn't have something to do with the way this was drafted. As I indicated earlier, the definition of "extradition agreement" excludes specific agreements. Therefore, it wouldn't be useful to refer to an agreement in clause 10 (2), specifically if the purpose is to exclude a specific agreement. Given the way in which this provision is drafted, your suggestion is unnecessary and even a little difficult to carry out. If I understand you correctly, you want to prevent inconsistencies between extradition treaty provisions and specific agreement provisions. However, the treaty in question here is defined as an agreement, and the definition of "agreement" already excludes specific agreements.

Mr. Daniel Turp: I'm concerned about the same thing as Mr. McKay. My concern is that a specific agreement applying to a national could prevail over a general extradition treaty concluded with that same country. That could happen because if we wanted to extradite someone, we could proceed by way of a specific agreement. However, we shouldn't be going against the provisions of a general extradition treaty. Clause 10 (2) states that when there is an inconsistency between the Act and a specific agreement, the Act prevails.

I'm not trying to put you on the spot. I know that the Chair doesn't especially like our technical discussions, but in my view, this is an important question. Mr. McKay has raised a valid point that we should all consider.

In the legislation that this bill seeks to amend, is there a provision which states that general extradition treaties prevail over the provisions of the Act? Perhaps this should be re- considered in light of this new category of specific agreements. In any event, Madam Chair, perhaps we should give this matter more thought and consider whether or not to bring in an amendment to this effect during the third reading stage in the House.

[English]

The Chair: We could think about this until doomsday, so as the manager of the process here, I'll ask if people want to think about it, or do you want me to call the question? There's still report stage.

Mr. John McKay: It's a theoretical issue, and what we're dealing with is ten years out. I know we all have great confidence in our ministers and our governments ten years out, but we should ask, as members of Parliament, how this could be abused. I suppose that's the underlying thesis to my question. Could a specific agreement be used to abuse or end run—

The Chair: Could we just put something out there as well? We're not operating in a vacuum here. There's still the Charter of Rights and Freedoms in Canada, and it's going to protect people. So if this is abusive in the sense that it derogates in some way from somebody's rights that are defined in the charter, the charter's going to catch that issue. It's going to be raised. So let's not forget we're operating within a system, not off in the airy-fairy land of public international law, which I was never very good at in law school because it didn't involve people going to jail.

Are there any other comments?

Mr. Paul DeVillers (Simcoe North, Lib.): I understood the witnesses to say that whether it's a specific agreement or a complete treaty, it requires the same approvals from cabinet, etc., so I don't see a problem.

(Clause 10 as amended agreed to)

• 1610

(Clause 11 agreed to)

(On clause 12—Minister's approval of request for provisional arrest)

The Chair: Reform amendment 4 has to do with clause 12. Mr. Reynolds, do you just want to give us a—

Mr. John Reynolds:

[Editor's Note: Inaudible] ...I don't have it on my sheet here right now.

The Chair: Okay. This is a limitation on the minister's approval. That's defeated, then.

(Clause 12 agreed to)

(On clause 13—Provisional arrest warrant)

The Chair: Reform amendment 5 is on clause 13. Did you want to speak to that?

Mr. John Reynolds: Yes. Paragraph 13(1)(a) says at present:

(a) it is necessary in the public interest to arrest the person;

I move that Bill C-40, clause 13, be amended by replacing lines 1 and 2 on page 6 with the following:

(a) it is necessary to arrest the person to prevent the person from escaping or committing an offence;

The reason for this is just that “public interest” is too vague.

The Chair: All right.

Mr. John Reynolds: It's a recommendation.

The Chair: Mr. Roy, did you want to respond or enlighten us on that section?

Mr. Yvan Roy: Madam Chair, it is true that the Supreme Court of Canada, in a case called Morales, to which the Criminal Lawyers' Association referred in their brief, has indicated that in some circumstances using the notion of public interest alone without any description might be unconstitutionally vague. The proposal you have on the table is to basically do away with the notion and replace it by two concepts, that it's necessary to arrest the person and prevent them from escaping.

I wonder if the honourable member would be amenable to leaving in the clause the notion of public interest and try to illustrate what is meant in the circumstances by referring to the possibility, or the necessity, of arresting someone or preventing the escape of someone. If I may, I have some words that I could put to you to see if there is any interest in this.

The Chair: You're just on a roll today. Do you have it in both official languages?

Mr. Yvan Roy: We have it in both official languages, but unfortunately not in the form of an actual amendment. It's just to see if Mr. Reynolds would be amenable to something like this. It could read like this:

(a) it is necessary in the public interest, including to arrest the person or to prevent the person from escaping or committing an offence;

So it would be in order to try to illustrate, as best we can, what is meant in the circumstances.

I have have the French version to read to the members:

[Translation]

(a) it is necessary in the public interest, including to arrest the person or to prevent the person from escaping or committing an offence.

[English]

The Chair: Mr. Roy, could you read it in English again for me, please?

Mr. Yvan Roy: Yes. I think the words I have in French are slightly different from the ones I gave you in English.

The Chair: Yes.

Mr. Yvan Roy: I think it would be more correct in English:

(a) it is necessary in the public interest, including to arrest the person or to prevent the person from escaping or committing an offence;

I'll read it again:

(a) it is necessary in the public interest, including to arrest the person or to prevent the person from escaping or committing an offence;

So this says that it's in the public interest to do the thing that's required. Two examples of the public interest requiring that that this be done would be to arrest the person or prevent the escape of that person.

Mr. Paul DeVillers: The two examples are the prevention of escape and prevention of committing an offence. You need to arrest them, and the examples of the public interest are the two examples of the prevention of escape and prevention of committing an offence.

Mr. John McKay: That's in the public interest.

• 1615

Mr. Paul DeVillers: If you want to specify examples of what's in the public interest, those are the two examples.

Mr. Derek Lee: Madam Chairman, I think we see a consensus on this. If someone could draft those two up, we could maybe stand this down and then come back to it.

(Amendment allowed to stand)

(Clause 13 allowed to stand)

(Clauses 14 to 16 inclusive agreed to)

(On clause 17—Appearance)

The Chair: Mr. Reynolds.

Mr. John Reynolds: I move that clause 17 in Bill C-40 be amended by replacing lines 1 to 3 on page 9 with the following under the heading of Appearance:

17.(1) A person who is arrested under section 13 or 16 is to be brought before a judge or a justice within twenty-four hours after the person is arrested, but if no judge or no justice is available during this time, the person shall be brought before a judge or a justice as soon as possible.

This gives us the same rule as that which you have under the Criminal Code.

The Chair: Is that agreeable to the government? Ms. Bakopanos?

Ms. Eleni Bakopanos: Yes.

(Amendment agreed to)

(Clause 17 as amended agreed to)

(Clauses 18 and 19 agreed to)

(On clause 20—Section 679 of the Criminal Code)

The Chair: Mr. Reynolds has a proposed amendment. This is Reform amendment 10, which is on clause 20. Mr. Reynolds, did you want to speak to that?

Mr. John Reynolds: I move that clause 20 in Bill C-40 shall be amended by replacing line 25 on page 9, with the following:

20. Subsection 515(10) of the Criminal Code

It's the same conditions as for ordinary bail since the person hasn't been convicted. Section 679 applies to the release of a person convicted pending trial.

The Chair: Mr. Roy.

Mr. Yvan Roy: Madam Chair, this clause basically applies to cases where the individual has already been committed to be extradited or is awaiting surrender because the minister has made her decision. It is, in those circumstances, to apply the very same regime as applies to people who are appealing their conviction. That's the reason this section refers to section 679 of the Criminal Code, which deals with bail during appeal.

We would suggest that this is the appropriate standard in the circumstances, given that the person in the first place is seen as being a fugitive, and second, the person has already been in court in front of a judge at the very least, and possibly has already been before the minister, who has made a decision with respect to the surrender of that person. So section 679 appears to the government side to be the more appropriate section applicable in these circumstances.

The Chair: Is there any further discussion?

(Amendment negatived)

(Clauses 20 to 22 inclusive agreed to)

(On clause 23—Substitution of authority to proceed)

The Chair: Clause 23 includes Reform amendments 11 and 12. Mr. Reynolds.

Mr. John Reynolds: I move that clause 23 in Bill C-40 be amended by adding after line 40 on page 10 the following:

(1.1) Where the Minister substitutes another authority to proceed under subsection (1) and the person applies to another date to be set for the beginning of the extradition hearing in order to give the person an opportunity to examine the new authority, the judge shall set another date for the hearing.

The intent is to allow an extension.

• 1620

Ms. Eleni Bakopanos: Mr. Reynolds, we accept it, except we would like to propose a subamendment. Instead of “the judge shall,” we want to propose that the judge “may” set another date for the hearing.

Mr. John Reynolds: Fine, that's agreeable.

The Chair: So then let's just do it this way.

Mr. Reynolds, let's see your Reform-11 as having the word “may” rather than “shall” in the last line. Is that all right?

Mr. John Reynolds: Yes.

(Amendment agreed to)

The Chair: Do you want to go to Reform amendment number 12 then?

Mr. John Reynolds: Yes. I move that clause 23 in Bill C-40 be amended by replacing line 5 on page 11 with the following:

during the hearing if the judge considers that the interests of justice so require.

This allows the amendment, but only in the interests of justice. The defendant should not be prejudiced if he has revealed his defence.

The Chair: I don't know how you'd make that work.

Ms. Eleni Bakopanos: The language Mr. Reynolds uses is probably more general than what we're proposing, and it is not acceptable. I don't know if technically anyone wants to go further.

The Chair: Is there any further discussion, then?

(Amendment negatived)

Clause 23 as amended agreed to)

The Chair: Is there any discussion on clauses 24 to 33 inclusive?

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): One moment, please. We would like to go over them quickly. We shouldn't go too fast.

[English]

The Chair: Take your time.

Yes, Mr. Reynolds.

Mr. John Reynolds: I just want to be recorded as voting against clauses 32 and 33.

The Chair: Okay, thanks.

[Translation]

Mr. Réal Ménard: Would Mr. Roy be amenable to discussing the provisions of clause 32 with us? I want to be certain that I understand them correctly. This provision lists different types of evidence that could be admitted, even if, under Canadian law, they do not constitute evidence as such. You will recall no doubt that this has already been brought to our attention. Would you care to comment?

Mr. Yvan Roy: The purpose of clause 32 is essentially to modernize our rules of evidence insofar as extradition is concerned. It should be remembered that extradition does not involve putting a person on trial, but rather is a process whereby a determination is made as to whether sufficient evidence exists in Canada, providing such evidence is available, for this person to undergo a trial.

Clause 32 allows for a document called the record of the case to be admitted into evidence. This document contains evidence which, if we were to comply strictly with the rules of evidence in Canada, would not be admissible as such. Take, for example, our Supreme Court which, following a series of decisions, has determined that hearsay evidence is admissible in Canadian courts, but only when two prior conditions have been met: the need for this evidence to be presented and the evidentiary weight of that evidence. This is what is referred to as reliability.

• 1625

Regarding extradition, a foreign country, for example the United States, France or another country on the European continent, can present a record of the case which, by definition, could contain hearsay evidence, even though the conditions of necessity and reliability, conditions required in Canadian court, may not be present.

Clause 32 stipulates that to the extent that a foreign country has authenticated a record and confirmed that it contains evidence, it's possible that based on this record, a Canadian judge may order the extradition of a person even though all of the proof required under Canadian evidentiary law may not be present. Clause 32 endeavours to make the rules of evidence more flexible so as to allow the case to be tried on the basis of the extradition record.

I can give you another example which illustrates the need we have under Canadian law to use affidavits. An affidavit is written testimony sworn given by a person relating to what that person has seen or heard directly. At present, an affidavit is required as evidence and this is a generally recognized form of evidence under Canadian law.

According to this new provision, it would no longer be necessary to obtain first-person affidavits. For example, a trial judge in Paris could submit a record and inform us that it contains a statement by a Mr. Lemire to the effect that... the statement would relate what Mr. Lemire had to say. Ms. Bakopanos could also testify in this case and the trial judge could report in his court records the details of her testimony, without requiring either Ms. Bakopanos or Mr. Lemire to swear out an affidavit.

Mr. Réal Ménard: I have a question for you.

Mr. Yvan Roy: Go ahead, I'm listening.

Mr. Réal Ménard: First of all, let me just say how much I would have enjoyed having you as one of my law professors. You explain things like an academic.

Some of the witnesses expressed some concerns. What assurances can you give the committee that the records on which a judge will base his ruling are accurate, that they have been authenticated and that there is no possibility of error, as we sometimes see in the case of an affidavit? The parliamentary secretary will recall that that was a specific concern raised by certain witnesses, not just any witnesses, but criminal lawyers. Clause 32 proposes to do away with the current provision whereby records are deemed to have been duly authenticated.

Mr. Yvan Roy: With your permission, Madam Chair, I'd like to clarify that clause 32 sets out a general principle. Subsequent clauses indicate how evidence is to be presented. The need to authenticate the record of extradition is made clear further on. All clause 32 does is set out a general rule.

You asked me what steps we took to ensure that the extradition record was accurate. I would remind you that clause 3 of the bill stipulates that an extradition request must be made by a country that is extradition partner, not by a person or a prosecutor somewhere in France, Switzerland or the United States. There request must be drawn up by a country which does so on an honour basis. You heard from my colleagues who testified before this committee that the extradition process is one conducted between partners based on a relationship of trust. We agree to trust a foreign country and based on that trust, the Canadian government concludes an agreement with that foreign country and sets certain parameters. If the foreign state fails to satisfy the basic conditions established, one of which is the proper authentication of evidence, this could have consequences for international relations between the two states.

Mr. Réal Ménard: Could you explain to me the presumption on the part of the criminal lawyers and lawyers who have testified before us. Do you feel their concerns are unwarranted? Lawyers are not usually fearful individuals.

• 1630

Mr. Yvan Roy: I won't say their concerns are unwarranted. I think it's important for the legislation to set some parameters. As parliamentarians, you have a duty to ensure that a person is not extradited unless the proper evidence has been presented. The public must have confidence in our extradition system.

In the past, and this is perhaps why we must be vigilant, there have been cases where persons have been the focus of a veiled extradition process. I have one case in mind which received considerable media coverage. It involved a person by the name of Jaffe in southern Ontario. In the United States, people are hired to find persons who fail to show up for their scheduled court appearance and who are therefore in danger of losing the bond that was posted. These individuals came into the country and took Mr. Jaffe. As I recall, they brought him to Florida.

The Government of Canada raised a stink at the time and demanded that Mr. Jaffe be returned. It argued that the United States had violated the provisions of the Extradition Act. The government would act in the same manner if this Extradition Act were violated.

Mr. Réal Ménard: There is a difference. For example, regarding clause 33, witnesses have indicated to us that records will no longer be authenticated either through a formal affidavit or by a state seal. How then will these records be authenticated? We talk about taking a country at its word, but there isn't a more accurate way of authenticating a document. It's enough that it comes from a country that is one of our extradition partners. In the eyes of the international community, the fact that the country in question is seeking extradition should be enough to vouch for the validity of that country's judicial process.

Mr. Yvan Roy: We believe that the authentication process being proposed here is even better than the one currently provided for under Canadian law. Currently, all that is required is an affidavit, which is typically drawn up in a foreign country. All we have is the authentication of a foreign country which is telling us to take this affidavit into consideration.

In future, the appropriate judicial officer will be able to say: "Here is the evidence I have on record". The affidavit sworn by a person will no longer be sufficient. Proof will be required that the individual in question has committed an offence and should be extradited. Not only will the judicial officer provide this authentication, but there is also the fact that the foreign state has requested extradition.

We feel that these assurances are sufficient, if indeed the evidence is sufficient under Canadian law—and that remains to be determined by the judge—to allow the Canadian government, based on the appropriate authentication, to determine that under the circumstances, proper evidence for extradition has been admitted.

Mr. Réal Ménard: You have convinced me. You sounded slightly exasperated...

Mr. Yvan Roy: Not at all.

Mr. Réal Ménard: ...Nevertheless you have convinced me.

The Chair: Is that all, Mr. Ménard?

Mr. Réal Ménard: Yes, that's all.

[English]

The Chair: We're on that block of clauses from 24 to 33. Mr. McKay, you had a brief discussion?

Mr. John McKay: Did I?

The Chair: Yes.

Mr. John McKay: I must have missed that.

Mr. Derek Lee: Treat us.

Mr. John McKay: Is it fair to say that subclause 32(1) would allow hearsay evidence?

Mr. Yvan Roy: Yes.

Mr. John McKay: Would subclause 32(1) allow hearsay evidence that is not sworn?

Mr. Yvan Roy: It would.

Mr. John McKay: So in subclause 32(1) you have hearsay evidence that's not sworn. It bounces over to subclause 29(1):

there is evidence admissible under this Act.

So you have it admissible at that point.

So we're doing an analysis:

had it occurred in Canada would justify committal for trial...and the judge is satisfied.

What is the standard that satisfies the judge? Is it on the balance of probabilities, or is it that a jury is properly instructed? What's the standard?

• 1635

Mr. Yvan Roy: Madam Chairperson, the standard that is applicable continues to be the standard of Shepard v. U.S., i.e., that there is enough evidence for a case to be sent to trial. So there is proof on each and every one of the essential elements of the offence. Then on that basis, in Canada, a person would be sent to trial. This is the standard that would be applicable here.

So you have evidence that is put before the judge in the form of the record of the case. But the judge then needs to be satisfied that this evidence satisfies the basic standard we have here in this country, which is Shepard v. U.S. The standard would not have changed; it's still the same.

The difference is in the evidence that is put before the judge. Right now you require an affidavit in the first person. In the future, in the record of the case, you will typically have a juge d'instruction, especially if it's coming from a western European country.

The juge d'instruction, the judicial officer in charge of this matter, will give you a number of will-say statements, or will give you a narrative of what they have. That judicial officer will then have to attest that this evidence is available, and that they have that kind of evidence.

The Canadian judge is going to be receiving this. The Canadian judge will also make sure that for the crime to be extradited the essential elements have been satisfied, e.g., if that case were to take place in Canada, it could go to trial.

Mr. John McKay: Is the standard the same for state to state, state to territories, and state to condominium?

Mr. Yvan Roy: Yes.

Mr. John McKay: So it's one standard fits all?

Mr. Yvan Roy: Yes.

Mr. John McKay: So the issue shouldn't be on the level of standard; the issue should be on the quality of the evidence.

So once you go off the quality of evidence that we expect in Canada, don't you open a bit of a Pandora's box? After you've allowed a certain inferior quality of evidence, it really doesn't matter what standard you're using, because that's admissible evidence.

Mr. Yvan Roy: For the purposes of the extradition hearing, yes. Let me try to qualify that yes and tell you where we're coming from with this.

In the area of extradition right now, the practice around the world is to go with the record of the case. That is true of common law jurisdictions, as well as continental Europe and other countries.

Mr. John McKay: Do records vary widely?

Mr. Yvan Roy: Well, you need to be in a position to satisfy the judge depending on the standard that is applicable in those countries. If you're going to talk about the European Union, for instance, the standard is going to be very low, because for all intents and purposes they consider these matters to be within one country.

I'm exaggerating in trying to make the point, but it's like when you're sending someone from, say, Ontario to British Columbia to face justice, there is no need to satisfy a very high threshold. You have the person, you're satisfied that they're the same one, and you have six days to send the person to British Columbia.

Well, with respect to continental Europe the standards have been significantly relaxed, because they consider themselves to be part of the same family. This is not what we're proposing here. Absolutely not.

What is being proposed, however, is what you're going to have, instead of having a first-person affidavit that may or may not be sufficient.... Indeed, our case law....

You were a practitioner. You will know that in Ontario, in particular, you do not have the right to cross-examine on the affidavit. So you have to be satisfied with the piece of paper, coming typically from the United States, that says this person is willing to say that at trial. Whether that's true or not, whether they're going to say that at trial, is irrelevant for the purpose of extradition.

We think that what is being proposed is better than that. This is by having the foreign state, through the appropriate judicial officer, saying, listen, this is what we have in order to prosecute this case. We are putting the honour of our state on the line, and this is the evidence that we have. This is instead of having a number of affidavits. Again, as I was telling you, the practice has changed significantly. First-person affidavits are really not the norm any more.

• 1640

If you were trying to do something like this, there are a number of countries that simply would not want to do business with Canada. We, therefore, become a haven for those criminals.

I would tell you something from my experience. I'm sure Mr. Lemire can say a lot more about this because he's in the field; I'm more the policy-maker here. But our experience is that even the Americans, who are used to first-person affidavits, are saying to us, don't bother any more. I have dealt with them in a bipartite committee where we had to deal with telemarketing fraud. They're saying, if this is what you're going to require in the future, we might as well not deal with you.

That is certainly the case with a number of western European countries where first-person affidavits are not known, purely and simply.

So the minister thinks—and that is what we are putting before Parliament—this regime affords the kinds of protection that are needed in order to ensure that we are not extraditing people who should not be extradited. Still, we are using a regime that is more modern and that we think, at the end of the day, should work a lot better than what we have right now. So Canada is not going to become a haven for criminals but, on the other hand, will protect the interests of people who are here and who should not be extradited.

As the Chair so ably said earlier in the proceedings today, there's a Charter of Rights and Freedoms. On top of everything, it affords those protections, and this statute must be within the four corners of the charter. There is no question about that.

Mr. John McKay: I suppose the issue the defence lawyers were raising in front of us was that this just opens up this bill for charter challenges on the basis that you can extradite someone on sworn hearsay evidence.

Now, is there any meaningful distinction between the evidence before a tribunal that's required to expedite to a tribunal versus to a state?

Mr. Yvan Roy: I would not be able to come up with an appropriate distinction.

To answer your earlier point about challenges, I think that our minister, and certainly the department, acknowledges that there are going to be challenges. Every time you have a new piece of legislation there are some. However, we and the minister think it is for the greater benefit of the system and the greater benefit of Canada.

So there are going to be challenges for a short period of time, and courts will have to decide on those challenges. All I can say is that we are confident that the government will prevail.

I would remind you of section 1 of the charter. In free and democratic societies what is available is the record of the case. If we have to go to a section 1 argument, we will have plenty of that type of evidence.

(Clauses 24 to 33 agreed to)

The Chair: Mr. Reynolds wants it noted that he voted against on clauses 32 and 33.

(On clause 34—Oath or solemn affirmation)

The Chair: Reform amendment 13.

Mr. John Reynolds: I move that clause 34 in Bill C-40 be amended by replacing lines 26 and 27 on page 14 with the following:

Oath or solemn affirmation

34. A document is not admissible unless is it solemnly affirmed or under oath.

The idea here is to reverse the proposed version. If a person is to be extradited, it should be on the basis of sworn evidence.

The Chair: Thank you, Mr. Reynolds.

Mr. Roy.

Mr. Yvan Roy: Thank you, Madam Chairperson.

With all due respect to the proposal, we believe that having something like this defeats the purpose of the record of the case. Given the explanation I've tried to give in both French and English, our suggestion would be that it would not be appropriate to go to that extent.

(Amendment negatived)

(Clauses 34 and 35 agreed to)

(On clause 36—Translated doumcents)

The Chair: Reform amendment 14.

Mr. John Reynolds: I move that clause 36 of Bill C-40 be amended by replacing lines 34 to 36 on page 14 with the following:

Translated documents

36. A translation of a document into one of Canada's official languages shall only be admitted if the translation is accompanied by a document setting out the translator's qualifications as a translator and a sworn statement by the translator certifying that the translation is an accurate translation of the original document.

This meets the concern that the translation could be sloppy.

• 1645

Mr. Daniel Turp: Acceptable, Chair?

The Chair: Well, there's a way that this is already dealt with in the Evidence Act, isn't there?

Mr. Roy.

Mr. Yvan Roy: There is, Madam Chairperson. The view of the minister is that such an amendment really would not bring much to the process; indeed it would bring nothing.

The Chair: It's redundant, I think.

Mr. Yvan Roy: It's redundant. Let's just remind ourselves that all this section is saying is that the evidence can be admitted. If there is any reason to believe that the translation is not accurate, it can and should actually be challenged in court.

The Chair: Yes, thank you.

In practice this is dealt with all the time with translated documents in the courts. I've seen a hundred translated documents in court, and they're challenged all the time. There's a practice to deal with that. My view, not as chair, is that this is redundant.

[Translation]

Mr. Réal Ménard: Therefore, the government endorses the Reform Party amendment?

[English]

Some hon. members: No.

The Chair: No.

[Translation]

Mr. Réal Ménard: Because we see this happening now.

[English]

Mr. Daniel Turp: What's the rule in the Evidence Act you were referring to?

The Chair: It's not in the Evidence Act. That's what I was trying to fumble with, to find out where it is. But, in practice, a translated document can always be challenged. So they always give the qualifications of the translator and a certification that this is truly a properly translated document. It's usually done by statutory declaration, and then you can challenge that or not.

You can say, look, I see this document here, and they know this document is being submitted as evidence in this court of law. But I'm defending this guy, and I say this is an inaccurate translation—bang. I bring in a witness to say there are 42 words out of line. The next thing you know, the document's out and somebody's translating it word by word on the stand, under cross-examination, or whatever.

Those are the kinds of things that defence lawyers and crowns work out all the time. And if a translation is called into question.... I've seen mistrials over bad translations, so it's not going to work. This isn't necessary, but—

Mr. John Reynolds: I asked a very simple question: if you had it so that it was already sworn that it was accurate, then you wouldn't have to ask the question.

The Chair: You would. You could still ask the question. You still ask the question. It doesn't do any good.

Yes, Mr. Roy.

Mr. Yvan Roy: I was just going to tell Mr. Reynolds that his form of words suggests that there is some magic formula to the effect that a translator has the appropriate qualifications, and he or she can issue that certificate. There's no such thing.

The Chair: We don't have the criteria.

Mr. Yvan Roy: So we're really asking for—shall we say, in the vernacular—trouble by having something like this here. That's all we're talking about.

The Chair: You'd have to set up a structure to certify these people, and—

Mr. Yvan Roy: Exactly.

Mr. John Reynolds: Far be it for me to want to cause lawyers a problem.

Some hon. members: Oh, oh!

The Chair: I'd like it. I think I have a lot of friends who would be really happy if this section were in here. They could litigate it.

Do you withdraw 36?

Mr. John Reynolds: No.

The Chair: Okay.

(Amendment negatived)

(Clauses 36 and 37 agreed to on division)

(On clause 38—Report of the judge)

The Chair: Clause 38, Reform motion 15.

Mr. John Reynolds: I move that clause 38 of Bill C-40 be amended by replacing lines 5 to 19 on page 15 with the following:

Report of the judge

38(1) A judge who makes an order of extradition for the person shall transmit to the Minister a copy of the order.

The Chair: What is the practice here, Mr. Roy or Mr. Lemire?

Mr. Yvan Roy: Actually, Madam Chairperson, I thought this is what the current section 38 has proposed by what Bill C-40 is doing.

I think what is more telling with respect to this proposal put forward by Mr. Reynolds is what is left out.

Actually I thought the reason for clause 38, as presented by Mr. Reynolds, was because he wanted the work of the minister to be basically nothing. In other words, the idea is to expel the role of the minister and for the judge to make all those decisions.

The way it is proposed, the scheme requires that in the first place a judge agree that the person should be committed. As the discussion with Mr. McKay showed, this is based on the standard of United States v. Shephard, the committal for trial. Then there is a second stage in the process, where the minister has to make a decision on a number of fronts.

• 1650

I think the amendment as presented by Mr. Reynolds is for the purpose of expelling that role from the process for the minister. As such, you will understand that it runs contrary to the scheme as presented by the government.

The Chair: Thank you.

(Amendment negatived)

The Chair: I would point out that amendments R-16 and R-17 have already been defeated.

(Clauses 38 and 39 agreed to on division)

(On clause 40—Surrender)

The Chair: We have amendment BQ-2.

[Translation]

Mr. Daniel Turp: Madam Chair, when we read the bill, we noted that in clause 44 (2), the minister may refuse a request for extradition if the death penalty still applies in the country requesting extradition. That is heartwarming to see, and this option is being exercised increasingly by countries that do not believe in capital punishment. I know that that is Canada's position. We feel that it would also be useful to include this stipulation in clause of 40 (3) which concerns, not the refusal of an extradition request, but the powers of the minister to seek assurances in the case of a person whom the country requesting extradition wishes to prosecute. We suggest that the condition regarding the death penalty also be mentioned in clause 40 (3).

Given what is happening in United States in the case of Joseph Stanley Faulder and what happened in the Kindler and Ng cases, I think the minister should be able to refer to a legislative provision which authorizes him to seek from the extradition partner assurances that the person referred to in the extradition order will not be put to death if convicted. I hope that our arguments will convince government officials.

Mr. Réal Ménard: I hope we have convinced them.

Mr. Daniel Turp: Our government is opposed to capital punishment. Recently, it brought in amendments to the National Defence Act to eliminate any lingering reference to the death penalty. Furthermore, it must now ratify the second Optional Protocol to the International Covenant on Civil and Political Rights respecting the abolition of capital punishment.

[English]

The Chair: I think we get your point, Mr. Turp.

Mr. Roy.

[Translation]

Mr. Yvan Roy: Madam Chair, further to two Supreme Court decisions in the Kindler and Ng cases, the law is such that the Minister of Justice is not required to seek assurances before extraditing someone to a country where the death penalty has not been abolished. This issue is again being challenged in the Supreme Court. The court will hear appeals in Burns and Rafay and, unless I'm mistaken, in the Lemire case in early 1999.

On the issue of capital punishment, the government is proposing to maintain the status quo. The committee has learned of several cases of persons being extradited to the United States where the Minister of Justice sought assurances that the person in question would not be put the death. In some instances, such assurance was given by the extraditing partner.

To the extent that the amendment being proposed by the Bloc Québécois is designed to refresh our collective memory and does not seek to limit the discretion that the Justice Minister may exercise, we see no reason why it should be rejected.

• 1655

Moreover, there is no need to refer to this in this particular clause since further on in the bill, we find specific provisions respecting the death penalty.

[English]

The Chair: All right. Are there any other comments over here on this?

[Translation]

Mr. Daniel Turp: Madam Chair...

[English]

The Chair: Okay, Mr. Turp, I'll give you the last word. Go ahead.

[Translation]

Mr. Daniel Turp: If I understand correctly, we don't disagree. Indeed, the intent of the amendment is not to limit the minister's discretion, but to ensure that among other things, the Minister seeks assurances that a person who is the subject of an extradition order will not be subject to the death penalty. I feel that this is one way to show that Canadian law condemns the practice of capital punishment and to ensure, through clauses 44 (2) and 40 (3), that foreign states are aware of our position.

[English]

The Chair: I think that comment has essentially been answered, has it not?

[Translation]

Mr. Yvan Roy: I would be remiss, Madame Chair, if I didn't say that I cannot support including in this provision the stipulation that Canada condemns capital punishment because of an understanding reached by the people seated opposite, because that is not my role.

If we wanted to include the stipulation that we condemn this practice, this could cause us some problems. Ultimately, I'd like us to agree that the discretion of the Justice Minister is not limited by this legislation, given the current state of the law.

To some extent, it might be superfluous to include this. Our position was not to oppose an amendment like this, but simply to recognize that the minister should continue to have some discretion in such matters.

[English]

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Looking at the same section, without specific reference to the amendment about the death penalty, I'm reading this and I'm asking if this is in fact setting a standard or asking for assurances that are quite unrealistic. It says:

that the Minister considers appropriate, including a condition that the person not be prosecuted, nor that a sentence be imposed on or enforced against the person, in respect of any offence or conduct other than that referred to in the order of surrender.

Basically, the way it's currently worded, as soon as that person arrives back in the country of origin, there is every likelihood and every possibility, I suggest, that there may be new offences that come to light, and I don't know how those assurances can be given. I don't know how another country would agree to that.

Mr. Jacques Lemire (Counsel, International Assistance Group, Department of Justice): This type of protection, which is outlined as one of the possible assurances that can be obtained, is generally referred to as a rule of specialty, or a specialty, generally provided for in the treaties or sometimes in the legislation. The respect of this notion is common, and it is expected that it will continue.

As I said, these clauses exist in treaties, and when individuals are surrendering in accordance with treaties, we have to provide for that protection. There's every expectation that the protection is respected. It's protection that is known, that is apparent in the treaties, and that can be made apparent upon surrender in view of the provisions of the act where no treaty applies.

If it would occur that for some reason that protection is not being lived up to, that can be raised, but it's a highly unusual situation. I must say that although I understand your concern, in fact it's not common at all; it's highly unusual for this to arise.

Mr. Peter MacKay: I understand the reason for the rule, and I know what a rule of specialty is here, and I respect what you're saying, but is there a realistic expectation that upon the return of the person through the extradition process, were new offences to come to light they would be given immunity? Is that a realistic expectation, because of this specialty rule and the assurances that were given to Canada?

• 1700

Mr. Jacques Lemire: If new offences come to light, even if they were committed before surrender, the individual benefits from that protection. If it's an offence that is committed after the individual has surrendered, then this is not part of what the individual was surrendered for. But the expectation is yes, the individual benefits from the protection.

And in treaties, you will note that when a situation such as the one you raise arises, there is most often provision for the requesting state to seek consent of the requested state to prosecute the individual, notwithstanding specialty. But that requires consent.

Mr. Peter MacKay: I realize the reasoning behind it is to ensure that the requesting state makes every effort to ensure the investigation is complete; all charges are there. I mean, they obviously have a vested interest in providing Canada with the most information to ensure the extradition. It just seems to me to be a bit of a legal anomaly that if something new does come to light.... It doesn't take any great stretch of the imagination, in a case, for example, involving a sexual assault, that a victim has not disclosed. And after the fact—after the extradition—it appears there is immunity here, or at least a request for immunity from Canada.

Mr. Jacques Lemire: I understand your remark. However, it has to be considered in context, where the requested state, as a sovereign state, makes a specific finding vis-à-vis the individual and a specific offence, once its process has been invoked with judicial finding as to the evidence. So it's only fair that an individual who is surrendered for a specific purpose based on the evidence be dealt with strictly for that purpose.

Exceptions to that do exist. I've outlined one of them. But it's essentially the practice, and it stems from the nature of the act of surrender by a sovereign state. The premise is founded upon the time before the surrender takes place—the judicial findings and the specific purpose of surrender.

• 1705

(Amendment negatived: nays 10; yeas 3)

(Clause 40 agreed to on division)

(Clauses 41 and 42 agreed to on division)

The Chair: On clause 43 we had Reform motion 18, which is defeated.

(Clause 43 agreed to on division)

(On clause 44—When order not to be made)

The Chair: Reform motion 19, Mr. Reynolds.

Mr. John Reynolds: I move that clause 40 of Bill C-40 be amended by deleting lines 29 to 34 on page 17. This removes the death penalty clause.

The Chair: We're on Reform motion 19.

Mr. John Reynolds: Oops, sorry.

The Chair: It's on page 21 of the amendments, clause 44.

Mr. John Reynolds: Clause 44.

The Chair: Yes.

Mr. John Reynolds: Yes, that clause 44 be amended by deleting lines 29 to 34.

The Chair: No, we're on clause 44.

Mr. John Reynolds: Yes.

The Chair: John, it's page 21 of these amendments. It's your Reform amendment 19.

Mr. John Reynolds: Okay, hang on.

The Chair: It's okay. I appreciate you're working from two different books. The clerk has it next to you. Are you all set?

Mr. John Reynolds: I move that clause 44 of Bill C-40 be amended by replacing lines 17 to 34 on page 17 with the following:

When order not to be made

44. (1) The judge shall refuse to make an order of extradition if the judge is satisfied that

(a) the surrender would be unjust or oppressive having regard to all relevant circumstances; or

(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, political opinions, sex or status or that the person's position may be prejudiced for any of those reasons.

When judge may refuse to make an order

(2) The judge may refuse to make a surrender order if the judge is satisfied that the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner.

The Chair: Okay. So the words that are to be changed in this motion are underlined. That would be in subclause 44(1), the word “judge” and the words “an order of extradition if the judge”. Those words are underlined. That's the nature of the motion.

Ms. Bakopanos.

Ms. Eleni Bakopanos: Madam Chair, it goes along with the other amendments that we rejected because it replaces “Minister” with “judge”. We've already rejected those amendments.

The Chair: All right.

(Amendment negatived)

The Chair: Now we have BQ-3, which is.... I'm sorry. I was jumping in a little enthusiastically, for a chair.

[Translation]

Mr. Réal Ménard: All committee members can support this motion, if they so choose, Madame Chair. We are merely synthesizing the provisions of the International Covenant on a Civil and Political Rights and of the Quebec Charter of Human Rights and freedoms.

At our very first information session with Mr. Roy, I expressed some reservations about the narrow reasons listed in the bill and mentioned that other assurances should be sought to prevent discrimination. Not in my wildest dreams could I have imagined the government opposing my amendment because it extends the protection afforded a person in respect of whom an extradition request has been made.

[English]

The Chair: Mr. Ménard, you can't speak for the government. Ms. Bakopanos is going to do that.

[Translation]

Mr. Réal Ménard: I don't doubt that.

[English]

Ms. Eleni Bakopanos: Mr. Ménard did ask the same question in the House of Commons today.

The Chair: Yes.

Ms. Eleni Bakopanos: I think the minister put it on record that we are doing a total review of the human rights legislation. We are prepared to propose a subamendment to accept nationality, ethnic origin, language, colour, political opinion, sexual orientation, age, mental or physical disability, or status of that person. We have that in writing, Madam Chair, in English and in French.

The Chair: But, Ms. Bakopanos, just so we're clear, it's not that the government is finally rejecting any of these. It's just that some of them have not been litigated or defined.

Ms. Eleni Bakopanos: That's right.

The Chair: We need to deal with them in the overall review.

Ms. Eleni Bakopanos: Exactly, Madam Chair. The minister is proceeding with the review. There will be clarification.

The Chair: All right.

Ms. Eleni Bakopanos: But we have to start—

The Chair: Could we have those?

Mr. Daniel Turp: Which ones?

The Chair: Look at the list.

• 1710

[Translation]

Ms. Eleni Bakopanos: I will pass that around for you.

The Chair: Thank you.

Mr. Daniel Turp: There is also a reference to pregnancy.

[English]

The Chair: Is that pregnancy in French?

[Translation]

Mr. Réal Ménard: You have omitted the word "pregnancy".

Mr. Daniel Turp: You are striking reasons such as "pregnancy" and "wealth". Those are the only two reasons that you are eliminating.

Mr. Réal Ménard: And civil status.

Mr. Daniel Turp: Yes, civil status.

[English]

The Chair: Mr. Roy, am I correct that if we adopt this list of prohibited grounds we would then be bringing this clause in line with a sort of combination of the Charter of Rights and Freedoms and litigation?

Mr. Yvan Roy: Yes, Madam Chairperson.

The Chair: So it would be in line with the charter.

Mr. Yvan Roy: Yes.

Mr. Daniel Turp: And the International Covenant of Civil and Political Rights.

The Chair: Yes. That's a good....

Mr. Yvan Roy: I think it is, because I don't think that pregnancy or wealth are included in that one.

[Translation]

Mr. Daniel Turp: Wealth.

[English]

The Chair: That's not the question, Mr. Turp. Keep in mind who's chairing here—even though I don't always. The question I was directing to them was whether this brings it in line with the existing law in Canada—not somewhere else, but in Canada—with respect to our charter: what's written in our charter and what has been read into our charter by the courts. That was my question, and I think Mr. Roy is saying that is the case.

Mr. Yvan Roy: Yes.

The Chair: Thank you, Mr. Roy.

Mr. Ménard.

[Translation]

Mr. Réal Ménard: Since the opposition is still entitled to ask questions, I'd like to ask you why you have rejected the more inclusive list that we proposed.

Mr. Yvan Roy: The minister has asked us to pass along to her the comments we receive regarding the different provisions in the bill, including comments respecting clause 44. Our response was that the reasons for refusal listed in the bill must also logically correspond to the extradition process. Could a person be extradited because—and I think this corresponds to the way in which the legislation is drafted—that person is pregnant? It would be very difficult to imagine that extradition could be tied to a person's pregnancy or wealth, even though these two reasons could certainly be construed as grounds for discrimination. However, in the case of extradition, these reasons would be somewhat more difficult to justify, in our opinion.

As the Chair was saying, since we must not lose sight of the current state of the law and try to be consistent with the provisions in Canadian law, we believe that the list being proposed by the government is more consistent with the state of the law and that it approximates more accurately reasons that could be deemed discriminatory in the case of an extradition process. No single provision respecting discrimination in the broadest sense could garner the support of an international body.

The Chair: Mr. Turp.

Mr. Daniel Turp: As I understand it, you would be willing to go along with an expanded list of reasons, provided that these were relevant to the extradition process. As far as other reasons are concerned, you prefer to wait for a review.

One thing surprises me. Why have you added the words "de peau" after the reference to the reason "couleur"? This idea of skin colour is new to me. Do legal decisions contain references to skin colour? It seems to me that in French versions of international treaties, there isn't necessarily a reference to the words "de peau".

[English]

The Chair: Compared with the charter? Mr. Turp, have you ever read the charter? Colour is in the charter.

Mr. Daniel Turp: Yes, but in French la couleur de peau, you never use that—de peau. In English, it's “colour”; it's not “colour of the skin”.

[Translation]

I don't understand why the French version contains a reference to "la couleur de peau". Could someone explain this to me? I don't see any need for this.

• 1715

[English]

Ms. Eleni Bakopanos: If you have “race” you don't need “colour” is what you're saying.

[Translation]

Mr. Yvan Roy: No, the reference is to "couleur de peau" instead of merely "couleur".

Mr. Daniel Turp: All treaties...

[English]

The Chair: Just a second. Let them consult for a minute.

[Translation]

Mr. Yvan Roy: I have to wonder if this isn't simply due to the fact that the Canadian Charter of Rights and Freedoms contains a reference to "couleur de peau" rather than to "couleur". However, I'm not certain of that. Does someone have a copy of the Charter handy?

Mr. Réal Ménard: Yes, we do.

Mr. Daniel Turp: I will check it to see what it says.

Mr. Yvan Roy: You'll check the Canadian Charter?

[English]

Ms. Eleni Bakopanos: We have it in English.

[Translation]

Mr. Réal Ménard: We always have a copy of the Charter with us.

Ms. Eleni Bakopanos: However, all we have is an English copy.

Mr. Yvan Roy: The reference in the English version is to "colour".

[English]

Ms. Eleni Bakopanos: Yes, “colour”.

[Translation]

Mr. Yvan Roy: Therefore, if indeed the reference in the French version of the Canadian Charter of Rights and Freedoms is to "couleur" only, not to "couleur de peau", then perhaps we should amend the text of the motion accordingly.

[English]

The Chair: We want it to match the charter.

[Translation]

Mr. Daniel Turp: The only reference is to "couleur".

Mr. Yvan Roy: Is that right?

Mr. Daniel Turp: Yes, that's what it says in section 15 (1).

[English]

Mr. Yvan Roy: Madam Chairperson, I don't know how you want to operate here.

The Chair: Just delete.

Mr. Yvan Roy: Delete from the French version de peau on the proposal put forward by the government.

The Chair: Okay. It's not technically on the floor, in any event; we're just discussing it.

Is the Bloc prepared to accept this list of prohibited grounds?

Mr. Réal Ménard: Yes.

The Chair: All right. So we'll amend the Bloc motion, on consent. BQ-3 is amended to include this list the government has given us.

Is that okay? Is that satisfactory to you?

The Clerk of the Committee: Yes.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 44 as amended agreed to)

(Clause 45 agreed to on division)

(On clause 46—When order not to be made)

The Chair: Just let me keep checking here. Reform amendment 23 has been defeated, but Reform amendment 22 has not.

Mr. Reynolds, you've just replaced two words in clause 46, “When order not to be made”. You've just replaced the word “judge” in subclause 46.(1).

Mr. John Reynolds: Yes.

The Chair: I just want to take a look at it. You're substituting “judge” for “Minister”.

That's not on for the government, because of the arguments that were made before.

(Amendment negatived)

(Clause 46 agreed to)

(On clause 47—When Minister may refuse to make order)

The Chair: Reform amendment number 24 is the same. Mr. Reynolds moves it.

(Amendment negatived [See Minutes of Proceedings])

[Translation]

Mr. Daniel Turp: I have a question for the parliamentary secretary and her advisers regarding clause 47.

In this morning's edition of the Globe and Mail, David Matas was quoted as saying that we would have a problem with international criminal courts if the minister were granted the discretion provided for in clause 47 in the case of prosecutions in Canada resulting in a conviction. How does your minister and your department respond to this criticism and do they feel that Mr. Matas has raised a valid argument?

Mr. Yvan Roy: Obviously, I've read the article in this morning's Globe and Mail. I'm also familiar with the submission made by Amnesty International to this committee.

• 1720

My impression was that Mr. Matas' objections focused primarily on the specialty rule of which we spoke briefly and which is referred to in clause 40 (3) of the bill, as well as on the concept of double criminality in the case of offences which constitute war crimes or crimes against humanity. I believe that his comments were aimed, among other things, at the Supreme Court of Canada's decision in the Finta case.

This is an issue to which the Minister is extremely sensitive, given that Canada supported the creation of an international court. The last thing we want to do is block the extradition by an international court of persons accused of so-called international crimes, that is war crimes and crimes against humanity.

As for the specialty rule, clearly this measure is purely discretionary. The government and the minister are of the opinion that this rule shouldn't present a problem.

The concept of double criminality poses a more interesting problem. In order for Mr. Matas' argument to withstand close scrutiny, he would, in our view, have to argue that in order to extradite a person to a foreign state or to surrender that person to a foreign tribunal, the crime for which that person has been tried in Canada and that would be the subject of a trial elsewhere would have to be similar in terms of criminality. The double criminality rule set out in this bill does not require anything of this nature. This rule, as set out in clause 3 for those who are interested in reading the provision in question, is based on the conduct of a person, conduct which must be deemed of the same severity by both countries. I would especially like to draw your attention to clause 3 (2) which addresses this issue. It reads as follows:

(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner... in this case the international tribunal

...in the same way as it is in Canada.

Mr. Matas seems to be saying that given the rules that apply to crimes against humanity, when a person is prosecuted in this country, that person cannot be surrendered to an international court. In our opinion, this regime does not apply because clause 3 is based on conduct, not on how an offence is worded. Clause 3(1)(b)(ii) states the following:

(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

The important thing here is that the two offences, that is the one charged by the foreign country or by court, or by the Canadian extradition tribunal, be punishable by at least two years of imprisonment. We feel that in these cases, the standards set out in the legislation could easily be met.

Therefore, you asked a very good and very relevant question. The government has taken this into consideration in its bill and has made provision for a regime to counter problems like this. This is not an oversight. On the contrary, it was planned that way and the provisions of clause 3 are designed to address the very case that we are discussing.

[English]

Ms. Eleni Bakopanos: Mr. Morrill would like to add something, Madam Chair.

The Chair: Mr. Morrill.

Mr. Keith M. Morrill (Deputy Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade): I have a very brief point. I simply think there's a slight error in the translation into English. The phrase double criminalité, which Mr. Roy has used, has been translated a number of times as “double jeopardy”, which is a different concept.

Mr. Yvan Roy: Yes. Thank you, Keith.

The Chair: Thank you.

Mr. Peter MacKay: I have a question, Madam Chair.

The Chair: Go ahead, Mr. MacKay.

Mr. Peter MacKay: One of the reasons for refusal is with respect to the subject of the request being under the age of 18. I have a little bit of a problem with asking other countries to respect all of the fundamental principles governing our Young Offenders Act. Isn't that a little far-reaching? I keep in mind that this is under review, but I'm reading that paragraph 47(1)(c) to mean that we're asking other countries to say part and parcel that our Young Offenders Act applies to a young person in Canada and in their country as well.

• 1725

The Chair: That's only if there's no extradition agreement.

Mr. Yvan Roy: I believe we have to be careful with what is being considered under paragraph (c). When you're talking about the fundamental principles, you're not talking about every little quirk that we may have in our legislation. With respect to this, what comes to mind is a country in which the young person would be incarcerated with adult prisoners once found guilty, for instance. I think that would pose a significant challenge to the minister, and she may well decide in those circumstances that the person should not be extradited. That would go against international instruments and against our own way of doing things in this country, so I think these are the types of things you would be considering under that paragraph.

The Chair: I just remind colleagues that we have a vote at 6.30 p.m. I'm told the bells will start ringing at roughly 6.15 p.m. Just for your information, they are fifteen-minute bells, and there are fourteen votes at 6.30 p.m.

(Clauses 47 to 54 inclusive agreed to on division)

(On clause 55—Powers)

The Chair: We have a Reform amendment, REF-26, and I'm intrigued that Mr. Reynolds is now going to explain to us one of the finer points of French grammar.

Mr. John Reynolds: I was going to ask one of my colleagues to read that line.

I move that Bill C-40, in clause 55, be amended by replacing, in the French version, line 28 on page 21 with the following:

(a) soit accueillir l'appel et annuler l'ordonnan-

and by replacing line 45 on page 21 with the following:

(b(ro) dismiss the appeal

(i) if it does not allow the appeal on any ground referred to in paragraph (a), or

(ii) even though the court of appeal is of the opinion that on the ground referred to in subparagraph (a)(ii) the appeal may be decided in favour of the appellant, if it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

The Chair: Okay, let's start with the first part. Is there a problem with the French grammar? Does this improve the understanding, or is it an either/or situation?

Mr. Yvan Roy: I must say, Madam Chairperson, that I focused on paragraph (b). If you'll just give me ten seconds, I'll go back to (a).

The Chair: Please.

Ms. Eleni Bakopanos: Are we talking about clause 55?

The Chair: Paragraph 55(1)(a). I'm assuming it's a....

Mr. Yvan Roy: I remember, Madam Chairperson.

The Chair: Okay, go ahead.

Mr. Yvan Roy: I think the two go together in that in the French what they had to do in order to make this grammatically correct was to add the word “soit”. If there is agreement to go with (b), then (a) will follow grammatically, purely and simply. However, I think you may want to have a discussion with respect to (b).

The Chair: All right, then with respect to (b), did you want to say any more on that, Mr. Reynolds?

Mr. John Reynolds: I'd just note that it allows the court of appeal to uphold the decision even if there was a technical fault but there was no substantial wrong.

The Chair: Mr. Roy, do you want to respond to that?

Mr. Yvan Roy: This provision, Madam Chairperson, comes from the amendments that were brought forward to the Extradition Act in 1992, if I'm not mistaken, following the cases of Ng and Kindler. They were modelled on section 686 of the Criminal Code, which provides for the appeal available to the crown in criminal matters.

This provision does not have the caveat that you can decide not to go forward with the appeal if no miscarriage of justice has occurred. This would basically be a new concept when it is the crown or, in this case here, a foreign state that is appealing the matter. This is a new way of looking at this, and if we were asked if we would go to the wall to stop this from happening, the answer would be no. If we were being asked if it's a good idea, we're not sure it is a good idea. I guess those are the comments I would have on this one.

The state of the law is such that this is not included in section 686 right now. It is not included in the Extradition Act the way it is right now. The section you have here, section 55, is merely taking what's already in the law and putting it in the Extradition Act. What I'm basically asking the committee is, why add some more words?

• 1730

The Chair: Any further discussion?

(Amendment negatived)

(Clauses 55 and 56 agreed to on division)

The Chair: On clause 57, there was a Reform amendment, REF-27, which has been defeated, so I'm now going to group clauses 57 through 130. I'm going to ask this question regarding clauses 57 through 130, both inclusive: are there comments on any of those clauses? Yes, which clause, Mr. Turp?

[Translation]

Mr. Daniel Turp: This is the motion to amend clause 99 and it is tied to the amendment that we are proposing for clause 8 which also deals with the publication of agreements.

[English]

The Chair: Okay. We'll stand that down to clause 8, and we'll group 58 through 98. Is there any other discussion?

Mr. John McKay: I have something on clause 96, on the Immigration Act.

The Chair: Okay, Mr. McKay has something on 96. Is there anything else? Just give me a grocery list of what you want to talk about, boys.

Mr. John Reynolds: I don't want to talk about them, but you can put me down as voting against clauses 57, 59, and 80.

The Chair: Okay, so clauses 57, 59, and 80, if they pass, will pass on division.

All right, then let's go to clause 96 and discuss Mr. McKay's concern.

Mr. John McKay: I'm not sure Mr. McKay has all that much of a concern.

The Chair: Well, let's hear from you anyway.

(On clause 96)

Mr. John McKay: The way the clause is drafted, the extradition process overwhelms the immigration process. I suppose the concern is that we have an intersection of two philosophies that may not be compatible philosophies. I'm interested in the department's reasoning for preferring the philosophy of extradition over the philosophy that underpins an immigration process or a refugee claim process.

Mr. Yvan Roy: Madam Chairperson, we have been joined by Yaron Butovsky, who is a lawyer working in immigration matters. He is much more of an expert in this area than I am, so I would ask him to comment on this, if that's agreeable to you.

The Chair: Yes, and welcome, sir. We've met before.

Mr. Yaron Butovsky (Counsel, Legal Services, Department of Citizenship and Immigration): Thank you, Madam Chair.

In terms of a response, I'm not sure I want to get into the philosophy. What I will say is this. As I think the Immigration witnesses outlined to this committee last week, when considering the intersection of refugee determination and extradition, our position is that we are often confronted with a situation in which people in the extradition process make a refugee claim essentially as a means of delaying their extradition. In such circumstances, rather than duplicating the decision-making that would go on in the extradition world by having the same or a similar determination take place in the refugee determination process, we will consolidate the two processes. We will essentially have a criminality determination made by a committal judge in the extradition world, that there is a minimum of evidence that a crime has been committed abroad. We will have that determination done by the extradition process, and we will have that deemed to be a decision of the refugee board.

I'll elaborate slightly on that. In the absence of these proposed legislated provisions, the refugee board, which would get and make a determination on the refugee claim, would be faced with a very similar kind of determination. That is, has a serious crime abroad been committed by this particular person in front of them? If so, would the person be excluded from refugee status? The international convention on refugees provides for that, and our domestic legislation provides for such exclusion from the refugee process.

• 1735

So since a similar criminality determination is made in the extradition world, the notion before you is that the determination in the extradition process be taken as conclusive and that it be deemed to be the decision of the refugee board that the person has been so excluded from the refugee process.

The Chair: Does that help, Mr. McKay?

Mr. John McKay: The problem is that these concepts get a little vague—and let me just see if I can go to an example. Someone is making a claim on the basis of religious persecution. This person is to be extradited for something that's a capital offence in the country requesting the extradition. If the extradition process takes over from the refugee claim process, is this person still able to assert his or her claim for refugee status? We talked about this particularly with respect to the death penalty. The extradition may be presented, and it may be based upon an assault, for instance. The real issue behind the assault, though, is the fact that if the person steps off the airplane, he or she will be persecuted because there are Ahmaddyia Muslims in that country. Or suppose he or she is a Christian in a Muslim country and is accused of blasphemy, and the real issue here is blasphemy or something similar to that.

Are we jeopardizing legitimate refugee claimants by having the extradition process, which, as we've heard on the evidence, is not all that high? Are we jeopardizing these folks, who are really going to be persecuted once they step back onto the extraditing partner's soil?

Mr. Yaron Butovsky: That's a fair question, but I think our response is a definite no. I say that because I spoke before about the criminality determination, and that's the judge's determination in the extradition process. In a sense, that mirrors what the Immigration and Refugee Board would determine.

The second step in the extradition process is the surrender process. We believe it has the refugee-like protections, for lack of a better term, that could be and would be accorded somebody if they make submissions to the Minister of Justice. For example, they might submit that they'd be persecuted or that the prosecution would be for persecutory purposes when and if they were returned to their home country.

The discussion just ensued about clause 44 and the various grounds on which it would either prevent the Minister of Justice from acting on a discretionary basis or would actually prohibit the minister from acting. Those grounds are very much similar to the grounds found in the definition of “convention refugee”. We therefore believe that the protections accorded through clause 44 are accorded fully to people who made submissions to the Minister of Justice, such that the legislation allows.

I could just add to that comment that one of the legislative amendments being proposed here is mandatory consultations with the Minister of Citizenship and Immigration before a surrender order is made by the Minister of Justice. That would be done with respect to anybody who has made a refugee claim in the extradition process. The client minister, the Minister of Citizenship and Immigration, would be called upon to make comments to the Minister of Justice apropos of any elements relevant to the surrender order to be made by the Minister of Justice.

The Chair: Thanks, Mr. McKay.

Mr. Lee, do you want to go ahead?

Mr. Derek Lee: In the same area, are those consultations discretionary or mandatory?

Mr. Yaron Butovsky: Mandatory.

Mr. Derek Lee: And they're contained in this statute?

Mr. Yaron Butovsky: Yes, they are in subclause 40(2).

Mr. Derek Lee: And do the consultations reduce themselves to paper? If the person was to query the basis of the consultation, could he or she do that? Could the person ask what Foreign Affairs is saying about this troubled place that he or she might have to go back to? How would the person find out what this mandatory consultation yielded, short of using the Freedom of Information Act?

• 1740

Mr. Yaron Butovsky: I could perhaps leave that to my extradition colleagues.

Mr. Jacques Lemire: Presently, the individual has the ability to make submissions to the Minister of Justice in opposition to surrender. So that individual has the full ability to put his or her case before the minister. The minister is provided with a summary of the case, and this would include all the information that goes to the minister in order for the minister to decide.

In practice, this summary of the case, which represents what goes to the minister by way of information, is provided to the individual for comments before it goes to the minister. This procedure has been approved by our courts as satisfying the rights of the individual in the particular context of the decision-making process for the purpose of surrender.

Mr. Derek Lee: So although the courts have urged considerations of fairness, we haven't done it in this statute.

Mr. Jacques Lemire: This issue of fairness is dealt with by way of case law and the obligations that we have to face in the context of the ministerial decision-making process. The actual way of dealing with this has been approved by the courts.

Mr. Derek Lee: Okay, but it's not provided for in the statute. If I went to look in this bill for this fairness provision in relation to the—

Mr. Jacques Lemire: It's in section 7 of the charter as it applies to the ministerial decision-making process.

Mr. Derek Lee: I accept that. But procedurally, you wouldn't find it in the Extradition Act.

Mr. Jacques Lemire: No.

Mr. Derek Lee: That's correct.

I also wanted to address a question that come up from the chair about a week ago in relation to the effect of waiver on proposed subsection (14). Proposed subsection (14) preempts the refugee determination process for serious offences.

If the individual were to waive at whatever point in the process they were, the waiver would come in. Would the minister ever get to order surrender? I take it the minister would not. If the minister doesn't order surrender, then there is no pre-empting of the refugee process, as I read it. Therefore, as I see it, the refugee process would have to continue, thereby pre-empting the extradition process. The intent of this section was to avoid that. Could I have some comments on this?

Mr. Yaron Butovsky: It's true the proposed subsection (14), which would amend section 69.1 of the Immigration Act, speaks of either surrender or discharge, two possible dispositions in the extradition process that would have an effect on the refugee determination process.

The notion of waiver, as I understand it, simply means the person immediately subjects himself to possible surrender to a foreign state without the minister's direct intervention. The consequence for extradition would be that while the claim is at the Immigration and Refugee Board for determination, the claim doesn't advance, on the premise that the person is no longer in Canada to advance this claim.

Mr. Derek Lee: Here I'm really thinking about someone who is playing games. So they would waive and pre-empt the operation of proposed subsection (14), then go to court and say “I still have to have my refugee hearing determined. I've waived, but I'm not leaving until I get my refugee process determined.”

Mr. Yaron Butovsky: I assume the consequence of a waiver would be the removal of the person fairly soon. He couldn't be staying around with a waiver and the minister not making a decision on the surrender. Is that right?

Mr. Jacques Lemire: If I may, I understand your question to arise in the specific context where the individual waives fully the extradition process.

• 1745

Mr. Derek Lee: At some point, they refuse a waiver.

Mr. Jacques Lemire: As provided for in section 72. In that context, the individual tells the judge that he or she wants to be removed immediately to the foreign state, and the judge has to inform that individual that he or she will be so removed. Bear in mind that the individual's refugee application stems from his own decision to seek refugee status.

If that individual decides in that particular context of extradition that he or she doesn't want to pursue that process any more and is aware that he will be removed immediately, then removal should take place, and that's what's provided for. Bear in mind that the purpose of the amendments is to harmonize both processes, and as Mr. Butovsky indicated, I think the end result would be that the pending refugee application would remain on the books for some time, to be dealt with in time as the refugee board would see appropriate. But in my view, it would not cause the individual not to be able to be surrendered. That volition would have been expressed by the individual, to be acted upon forthwith as advised.

Mr. Derek Lee: Okay. So you don't fear the game-playing after, because a person can waive at any time after arrest or appearance, and having waived and pre-empted proposed subsection (14), they would resort to habeas corpus or another procedure for the purpose of allowing the refugee hearing to continue, thereby circumventing the intent of proposed subsection (14). We're talking about individuals who probably have fairly good legal advice and who are keen to make sure the system doesn't move them out as quickly as the system would like to.

I don't have a solution. Is my suggestion viable? Is it something the statute should be trying to avoid?

Mr. Yaron Butovsky: I certainly take your point that we're continuously trying to ensure that the legislation takes account of the various actions or dilatory tactics people may take to impede proper removal from Canada.

My point would be that if the person waived surrender, they would not necessarily bring themselves out of the confines of proposed subsection (14), as drafted. Up until their removal from Canada under a waiver, proposed subsection (14) may still be operative, and therefore they could still be subject to the provisions of proposed subsection (14).

Mr. Derek Lee: Because I've raised an issue and I don't even have a solution to the issue I've raised, I'm going to leave it there. I don't think we can deal with it.

The Chair: Thank you.

Here's what we're doing here with respect to the clauses. I went through the clauses that were left, where there were questions. We have one left, which is clause 99. How we deal with that depends on how we deal with clause 8.

So we'll go slowly and keep in mind that if clauses 59 and 80 pass, they will pass on division because of the Reform Party.

(Clause 58 agreed to)

(Clause 59 agreed to on division)

(Clauses 60 to 79 inclusive agreed to)

(Clause 80 agreed to on division)

(Clauses 81 to 98 inclusive agreed to)

(Clauses 100 to 130 inclusive agreed to)

The Chair: We'll go to clause 8.

Ms. Bakopanos.

Ms. Eleni Bakopanos: We want to go back to clause 13, because there was a misreading or a misinterpretation.

The Chair: All right.

Ms. Eleni Bakopanos: We may have to have a longer discussion on clauses 8 and 99. So if we could go back....

The Chair: You would like to do clause 13 first, which I said—

Ms. Eleni Bakopanos: Yes, which you said you would go back to.

The Chair: Okay, I'm going to ask Mr. Maloney to do me a favour and take the chair for a second while I leave the room.

We'll restrict this to clause 13.

• 1750

(On clause 13—Provisional arrest warrant)

[Translation]

Ms. Eleni Bakopanos: What was read to us initially wasn't clear. You should clarify the text of the amendment that you are proposing.

Mr. Réal Ménard: Fine.

Mr. Yvan Roy: I'm sorry, but I was mistaken.

Ms. Eleni Bakopanos: Lawyers sometimes...

[English]

Are we all there? We were proposing a subamendment to Mr. Reynolds' amendment that on clause 13, lines 1 and 2 on page 6 be replaced with the following:

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;

In English that's the way we would like it to read.

[Translation]

We are proposing that clause 13(1)(a) read as follows in English:

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping for committing an offense.

We were mixed up a little.

Mr. Réal Ménard: Yes, it's coming back to me.

[English]

The Vice-Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Mr. Reynolds, you'll accept it and you'll move it.

Mr. John Reynolds: Yes.

The Vice-Chairman (Mr. John Maloney): That's the end of discussion from the government side.

Ms. Eleni Bakopanos: Add “including”.

Mr. John McKay: I know. It's just more precise drafting.

Ms. Eleni Bakopanos: Do you want to add that in, Mr. McKay?

[Translation]

Mr. Daniel Turp: Could you possibly read us both versions?

Ms. Eleni Bakopanos: Don't they agree?

Mr. Daniel Turp: I'm not certain that they do.

Ms. Eleni Bakopanos: Fine then, I'll read them again to you.

[English]

Okay.

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;

[Translation]

That's the French version.

The English version, on the other hand, reads as follows:

(a) it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence.

Have we omitted something?

Mr. Daniel Turp: There's one small problem in that the English version contains the words "to arrest", whereas this is not expressly stated in the French version.

Mr. Yvan Roy: That was my initial reaction as well and I should have mentioned this small problem. In the French version, the clause begins with the words "son arrestation est nécessaire", rather than state further on that it is necessary to arrest that person.

Ms. Eleni Bakopanos: That's stated first.

Mr. Daniel Turp: I see.

Mr. Yvan Roy: I made the same mistake.

Mr. Daniel Turp: I understand.

Ms. Eleni Bakopanos: Thank you.

[English]

The Vice-Chairman (Mr. John Maloney): Is everyone content?

(Amendment agreed to)

(Clause 13 as amended agreed to)

(On clause 8—Publication in Canada Gazette)

The Chair: Ms. Bakopanos, you and I spoke before the committee. Do you have something to suggest here?

Ms. Eleni Bakopanos: Are we going to be in or is the opposition going to table their...? Are we talking about clause 99 or clause 8?

The Chair: Clause 8.

Ms. Eleni Bakopanos: On clause 8, all we had was a hand-written note. I don't know how you want to proceed, Madam Chair.

The Chair: I consider that to be a motion on the table.

Ms. Eleni Bakopanos: I don't think we've even read the motion into the record. Have we?

[Translation]

Mr. Daniel Turp: The clerk handed me some copies earlier. Perhaps we could pass them around.

Ms. Eleni Bakopanos: These haven't actually been consigned to the minutes of proceedings.

[English]

The Chair: It's being distributed now. Mr. Turp moves this amendment to clause 8.

[Translation]

Mr. Daniel Turp: We debated this last time around. I believe the Chair and the other committee members all agreed that the practice of tabling extradition agreements before both houses of Parliament should continue. Others are also of this opinion, including the parliamentary secretary with whom I have spoken and who thinks this is a good idea.

If we were to delete this provision, we would be amending the existing legislation which already provides for the tabling of agreements before the two houses of Parliament. For the sake of transparency and to help parliamentarians be aware of what is actually in these treaties, I would like to add this provision to clause 8. I move that we do the same with clause 99, but we can discuss that later.

[English]

The Chair: What do you have to say?

• 1755

Ms. Eleni Bakopanos: Madam Chair, considering that it is a totally new amendment, a new procedure, I would like to recommend, if Mr. Turp doesn't have any objections, that we refer it to the foreign affairs committee of the House, because it is a new procedure and I think it would be more appropriate that it be discussed in fact at the foreign affairs standing committee.

The Chair: Thank you.

Mr. Lee.

Mr. Derek Lee: Madam Chair, I respect the spirit in which the amendment is offered, and I know members in this place always want to be up to speed on what the government is doing outside of the statute, whether it be by regulation, orders in council, treaties, or whatever. But my experience is that we now have a plethora of tabling in the House of Commons, most of which never reaches the eyes of MPs or their staff, and the reason is that there are other ways of making these documents known.

In my experience, simply having a tabling requirement without a subsequent mandatory reference from the table from the House to a committee for a particular purpose is merely creating a filing operation. The document is tabled, it's stamped, it goes into a file, and that's it. For all practical purposes, people who wish to know what the extradition agreements or treaties are will consult either the Gazette or the Canada Treaty Series, which comprehensively publishes, as I understand it.... Both of them taken together certainly are going to contain everything, other than the specific extradition agreements we have already provided for by an amendment today.

I accept the principle of tabling or of disclosure, a mechanism that would require very public disclosure of these kinds of documents, but under the current circumstance in Parliament, I'm not of the view that tabling alone adds anything to what is already out there, either in the Gazette or the Canada Treaty Series publication.

The Chair: Because I'm the one who got us into this by not being satisfied with the answer, it's a matter of resources. I still don't believe that's the answer, gentlemen. I think there's more to it than that.

Should somebody be studying this, not just in the context of extradition treaties but in the context of all treaties? If that's the case, we shouldn't be doing that. We do criminal law and a few other things over here, but we certainly don't normally do public international law, one of my favourite topics.

Mr. Turp.

[Translation]

Mr. Daniel Turp: I agree with the parliamentary secretary that this matters warrants further study, particularly by the Foreign Affairs Committee which has been wanting to do that since last year. If the process of tabling the agreement is not followed up by a referral, interest will be limited. However, there is justification for tabling agreements solely for the purpose of informing parliamentarians, as is currently done in the UK, in New Zealand and in Australia. My concern here is that this is one of the rare instances where agreements are actually tabled to Parliament. Agreements respecting social security are another example. We are proposing to amend legislation by doing away with an existing practice, namely that of tabling extradition agreements to Parliament. We would be setting a very bad precedent by doing this. This practice should be expanded and studied further by a committee.

That's why I am proposing this amendment. Not only am I encouraging the practice of tabling agreements to Parliament, but I also think we should agree not to amend this legislation until this matter has been debated further.

[English]

The Chair: Could I then propose, in a way of getting some direction for myself, if we either defeat this motion or take it off the board, would you be comfortable with having me write to the chair of the foreign affairs committee recommending that this entire process be reviewed? I think it's fair to say that it's my understanding that the Minister of Foreign Affairs would welcome that review. Are you comfortable with that kind of a resolution to the situation, colleagues?

Mr. Lee.

• 1800

Mr. Derek Lee: If we were to deal with the issue in that way, I think the committee should instruct the chair, if I can put it that way, to draw the issue to the attention of the foreign affairs committee.

The Chair: Okay.

Mr. Derek Lee: The issue is that this particular bill appears to change the practice. It appears to. I'm not too sure it does. Let's suggest it may change a practice involving the making known of treaties to Parliament, and we believe this issue should be looked at by parliamentarians. We think that committee should review it.

The Chair: How do you feel about that, Mr. Turp?

[Translation]

Mr. Daniel Turp: In my view, that's a very useful suggestion, provided this recommendation is made not only to the Chair of the Foreign Affairs Committee, but also to the Minister of Foreign Affairs. I believe that would be one way of resolving this issue.

[English]

The Chair: Let's do first things first, then—the Bloc amendment to clause 8.

(Amendment negatived)

(Clause 8 agreed to)

(Clause 99 agreed to)

The Chair: I'll come back to the letter in just a second, but I'll just finish my script.

Shall schedule 1 carry?

Some hon. members: Agreed.

The Chair: Shall clause 1 carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill as amended carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill to the House with amendments?

Some hon. members: Agreed.

The Chair: Shall the committee order a reprint for use at report stage?

Some hon. members: Agreed.

The Chair: Thank you.

Shall I then draft a letter for approval by the committee to the chair of the foreign affairs committee, and to the minister, recommending that the tabling procedure for treaties be reviewed by that committee?

Some hon. members: Yes.

The Chair: I'll bring that back to the committee so you can all take a look at it.

I want to thank you all. I really want to thank the immigration department, the justice department, and the foreign affairs department for their assistance.

I also want to thank our visitors from the opposition parties. And, Mr. Reynolds, I think you should thank your researcher for his assistance—

Mr. John Reynolds: Should I thank him for all the advice I gave him?

The Chair: —not that you didn't have your hands all over this file, but I know you were pleased with his work, and we are too.

Colleagues, thank you.

Yes?

[Translation]

Mr. Réal Ménard: Madame Chair, I greatly enjoyed my involvement in the committee's work and I hope to return, if possible, to examine other bills.

[English]

The Chair: We'd love to have you back.

[Translation]

Mr. Daniel Turp: I particularly enjoyed the Chair's firm resolve.

[English]

The Chair: She's a little bossy, but she tends to get the work done.

Mr. Reynolds.

Mr. John Reynolds: I gave a motion to the clerk the other day about the minister coming.

The Chair: Yes.

Mr. John Reynolds: I'm just wondering if, on Wednesday when she comes, we could question her on her performance as well as on Nunavut.

The Chair: You can try to go wherever you want, but I think we should discuss that at our meeting tomorrow, if you don't mind.

We're adjourned.