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]

Wednesday, November 18, 1998

• 1544

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Ms. Bakopanos, do you want to introduce this?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you, Madam Chair.

There are two broad categories of amendments that were presented by Mr. Reynolds, and I have a suggestion for speeding up the process a little. They strike at the underlying philosophy of this bill, which is the ministerial discretion.

You suggest, Mr. Reynolds, we substitute a judge for the minister. We are not prepared to accept that, so I want to make sure we know that. Perhaps we can proceed with those amendments first and then go to your other amendments, which we can discuss.

That's what I'm recommending, because it's really sovereign state to sovereign state. If we start discussing the discretion, we will go to the basic principle of the bill itself.

The Chair: I guess you're suggesting that when we come to the first of those amendments we argue them all as a group, because it's essentially the same argument on both sides.

Is that agreeable, John?

• 1545

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Fine.

Ms. Eleni Bakopanos: I'm suggesting that for instance amendments 17, 20, and 21... Sorry.

The Chair: If that's agreeable, then when we come to clause 3—

Ms. Eleni Bakopanos: I have the Reform amendments we're applying. Numbers 1, 5, 7, 16, 18 and 23 remove the ministerial discretion totally. Those only deal with removing. There's another series that deals with substituting minister for judge.

The Chair: All right. Can you tell me which ones they are?

[Translation]

Ms. Eleni Bakopanos: Okay. I am referring to clauses 1, 5, 7, 16, 18 and 23, in Part 1.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): We are going to deal with them as a block, if I might put it that way.

Ms. Eleni Bakopanos: Yes.

[English]

The Chair: Then there's another group that suggest substituting—

Ms. Eleni Bakopanos: Minister for judge.

The Chair: All right.

[Translation]

Ms. Eleni Bakopanos: Okay. There is a second series of amendments that deals with substitutions to be made in clauses 8, 17, 20, 21, 25, 27 and 28.

[English]

I just want to make sure I have it right, Mr. Reynolds, also.

Mr. John Reynolds: What do you have listed as one? The first one I have is clause 3.

The Chair: No. The amendments are marked as Reform 1.

Mr. John Reynolds: I see.

Ms. Eleni Bakopanos: They are marked—the ones I received last night anyway.

The Chair: He's just not working from the same document.

Ms. Eleni Bakopanos: Oh, you aren't?

Mr. John Reynolds: I'm fine.

The Chair: So she's grouped 1, 5, 7, 16, 18 and 23 as one set; and then 8, 17, 20, 21, 25, 27 and 28 as a second set to argue as a block.

When I come to Reform, motion number 1 will actually be arguing Reform motions 1, 5, 7, 16, 18 and 23 all at once. Okay.

All right then, I have to get my script out. It says here good afternoon. No, it doesn't say that.

Ms. Eleni Bakopanos: It is the position that the minister would exercise an executor role, and that's entirely consistent with what the practice of extradition is all about. Therefore we would not be prepared to accept those amendments.

Mr. John Reynolds: I would like to put our position on it. We believe the judge should have the final decision, and not the minister.

The Chair: Okay. Do you considered them argued?

Mr. John Reynolds: Argued.

The Chair: What a guy.

Ms. Eleni Bakopanos: Thank you.

The Chair: We'll just start now.

Ms. Eleni Bakopanos: Have I confused everybody?

The Chair: Just give me a minute. This takes me a minute. They never make this easy.

Mr. Réal Ménard: Everybody loves you, I think.

The Chair: Okay, go ahead.

[Translation]

Mr. Réal Ménard: Madam Chair, before discussing the amendments, could I ask the parliamentary secretary or our friendly officials a question?

You know that the four witnesses we heard from yesterday all said the same thing. I would like to know why, in the end, the government did not give in to their argument. I am not convinced that it should have done so, but I would like to hear your reasons. We were told that there had to be two distinct legal systems for dealing with extradition, depending on whether it is ordered by an international tribunal or at the request of a partner State.

Perhaps my colleague could expand on what I am saying. We were told that, among other things, in the case of an international criminal court or tribunal, the minister had no discretionary power over the decision to extradite. I will give the floor to my colleague so that he can give you a little bit more information on what I mean and perhaps you could then comment on your reasons.

Ms. Eleni Bakopanos: You are just asking for clarification on a technical point. It does not concern the amendments that we are currently discussing, Réal.

Mr. Réal Ménard: It's just to understand...

Ms. Eleni Bakopanos: It is a discussion of the principle.

Mr. Réal Ménard: I just want to understand.

• 1550

[English]

Ms. Eleni Bakopanos: Madam Chair, do you want to go over the same discussion on the principle? Again, we are discussing the amendments at the moment. I don't want to be harsh on Mr. Ménard, but this is another debate on the principle that was discussed yesterday. It was even brought up with the minister when she was before this committee.

The Chair: If we can't agree to short-circuit it, I'll just start. But are we on those same amendments?

Ms. Eleni Bakopanos: We aren't going to debate the principle—the amendments Mr. Reynolds... I may be out of order, but I think Mr. Ménard's question has to do with the principle of ministerial discretion toward international tribunals, if I understood it properly.

The Chair: Mr. Ménard wants to make a point on that. The way I would like to do it, as chair, is to wait until we get to clause 3, which is the first time we have an amendment, and argue it out then. But I'd like to get the clause-by-clause started in the normal course.

I want to just acknowledge that Mr. Yvan Roy is back with us. We're glad to see you looking well, sir. We understand we took you to the hospital the last time you were here.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Madam Chairperson.

Ms. Eleni Bakopanos: Yes, we'd better be careful this time.

The Chair: We have to be careful with Mr. Roy. He apparently reacts very strongly to us.

Mr. Yvan Roy: Yes, very strongly, actually.

The Chair: We also have Mr. Lemire from the justice department. Mr. Roy is senior general counsel and Mr. Lemire is counsel with the international assistance group.

Pursuant to Standing Order 75(1), we will postpone consideration of clause 1 and come back to that.

The first clause to deal with here is clause 2. Mr. McKay.

(On clause 2—Definitions)

Mr. John McKay (Scarborough East, Lib.): I have a point of clarification with respect to what “state or entity” means. The first two are pretty obvious. The third is a little less obvious. I can't quite understand why “condominium” is in paragraph (c) under “State or entity”.

“State or entity” means

(a) a State other than Canada;

(b) a province...

(c) a colony, dependency, possession, protectorate, condominium...

Mr. Jacques Lemire (Counsel, International Assistance Group, Department of Justice): The reference is obviously not, as you would have guessed, to the—

Mr. John McKay: I only studied real property law, I'm sorry.

Mr. Jacques Lemire: My answer, unfortunately, has to be limited. To me, it's a term of ours that refers to a type of territory or possession—at the risk of being inaccurate.

Ms. Eleni Bakopanos: Does foreign affairs want to add something?

The Chair: Could you introduce yourself?

Mr. Keith Morrill (Deputy Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade): On this point, exactly as Jacques says, it is a specific term for a type of colony or dependency that is run by two separate metropolitan states. An historical example would be New Hebrides. It's a colony run by two countries, or three or four. There aren't a lot of them around any more.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): I believe that is correct. I do not think that there are any condominiums left in the world. So it is perhaps not as relevant as people are suggesting. It would have to be checked, but I do not think that there are any left.

Ms. Eleni Bakopanos: But is it still possible to create new ones?

Mr. Daniel Turp: Yes, of course.

Ms. Eleni Bakopanos: We have to leave it in, in that case. If it is possible to create new ones, it must be left in.

[English]

The Chair: You had to ask, didn't you.

Ms. Eleni Bakopanos: Thank you for educating us.

Mr. John McKay: How many people around the table knew that?

The Chair: Mr. Maloney and I did, but we weren't inclined to show off.

Ms. Eleni Bakopanos: No wonder we sent him to the hospital.

The Chair: Mr. Turp.

[Translation]

Mr. Daniel Turp: During the meeting that I attended, I mentioned to Mr. Lemire, I believe, that it seemed to me a distinction should be made between extradition and surrender, since in the international criminal courts or tribunals covered by this Act, the concept of extradition does not exist. For example, in section 89 of the new Rome Statute that will create the international criminal court or tribunal, the notion of surrender is used.

• 1555

In that sense, I feel that the text is not as accurate and rigorous as it should be. One way of making it more rigorous without changing the general thrust would be to add, in clause 2, a definition of the word “extradition” that would include the concept of surrender. As a result, the wording of the Act would no longer open the door to claims that the concept of surrender is not included.

Otherwise, a person to whom we might want to apply a procedure under this Act could well claim that the procedure does not apply in the case of an international court because it is not a case of extradition but a case of surrender.

So I am making a constructive suggestion to incorporate in clause 2 a definition of “extradition” that clearly includes the concept of surrender in accordance with the meaning attributed to it in Security Council decisions and in the treaty designed to create the international criminal court or tribunal.

Mr. Yvan Roy: I can add a comment since I have the feeling that the suggestion is also the result of analysis that Amnesty International presented to this committee.

Mr. Daniel Turp: No, not necessarily.

Mr. Yvan Roy: The document that I read was based on the premise that a distinction had to be made between extradition and the procedure referred to as surrender. The argument was made that the distinction is required under the Rome Statute, which you referred to, Mr. Turp. In fact, a passage is quoted in the document in support of this argument.

However, from our point of view at least, it is certainly not required. You know as well as I do that Canada played an active role in developing that text. In fact, one of the witnesses who appeared before you, Mr. Piragoff, was part of the Canadian delegation along with Mr. Kirsch and others who participated in the work.

Our position on this is that the way the text is worded, and because it evokes the possibility of surrender through extradition, but surrender nevertheless to a foreign court, the problem does not exist.

I will quote the text from Amnesty International and we will see if you agree with me.

It says, in the 5th paragraph on page 2 of their document,

[English]

that the Rome statute states that “...the requirements for the surrender process in the requested State...should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.”

[Translation]

Most of those words are in quotation marks, having been taken directly from the Rome Statute.

In our opinion, there are two criteria in that paragraph. First of all, the system put in place to turn someone over to an international tribunal must not be more complicated than extradition. But because the same system applies, we feel that we meet this first condition. Secondly, since a distinction is made between surrender and extradition, the court itself recognizes that the two may exist and that someone can be sent before a court through extradition.

On that basis, we feel that what the minister is presenting to Parliament fully meets those requirements. I can tell you quite humbly that we would be ill-advised to adopt the text of an Act that would run counter to what we negotiated in Rome during the summer. Canada is considered a major promoter of that text.

I understand why you have suggested including a definition of “surrender”. However, our process involves two steps: committal—and I'm using the English terminology because it is easier—ordered by the judge, and surrender, ordered by the minister.

• 1600

In our opinion, it is not more burdensome in the case of an international court than it is in the case of extradition in general, and that meets the initial condition. I think that the international court itself recognizes that with respect to extradition, that condition can be met. With all due respect, I think that we succeed in doing so without the amendment that you may want to propose.

Mr. Daniel Turp: I did not make my suggestion so that we would debate the fundamental issue. I understand the proposed amendment will change the system. It is true that it is perhaps not necessary to change the system in light of the statute or the two other Security Council decisions. However, we need to be careful, in my opinion, because the concept of extradition is truly different from the concept of surrender within the meaning of some international conventions. Leaving out the concept of extradition was deliberate, and you undoubtedly know why; it is because of the problem concerning the extradition of nationals.

We should be concerned about being rigourous, without necessarily changing the substance, unless the Reform Party has some support here. We should be rigourous and state that extradition includes surrender, in order to comply with our international obligations and the terminology used in the international treaties we want to comply with, especially in a bill like this one. My point may be technical, but it is rigourous with respect to terminology.

Mr. Yvan Roy: I see that Mr. Lemire wants to comment. I will make some more comments later on.

Mr. Jacques Lemire: I note that in your comments you clearly specify that this reference to a more specific term would deal with the fact that some States do not surrender or extradite their citizens. The purpose of using a slightly different term could be to take into account that type of situation. For Canada, it is not an issue, since we can extradite or surrender our citizens.

So my reaction is as follows: as long as our legislation enables us to extradite our citizens, or people who are not Canadian citizens, to a court in a partner State to which we can extradite, I feel that the Act, as it stands, enables us to meet our obligations.

Mr. Daniel Turp: On that point, I would say that the Supreme Court could always change its mind and decide to interpret the Canadian Charter more strictly than it did in the Finta case, I believe, and that it would be prudent to include the notion of surrender in this Act.

Mr. Réal Ménard: Accept this fine amendment, Ms. Bakopanos. I do not understand your reluctance.

Ms. Eleni Bakopanos: I think that we have made our positions clear; they were already clear yesterday if I am not mistaken.

Mr. Daniel Turp: This time, it does not deal with the substance, if you understand what I'm saying.

Ms. Eleni Bakopanos: Mr. Roy has understood fully, but I think that it could have some consequences. I agree with him.

Mr. Yvan Roy: I was about to say—and I agree entirely with Mr. Lemire as to the necessity...—that I am not sure that the Finta case, which I know very well, has anything to do with what we are discussing here today. In other words, I do not necessarily accept Amnesty International analysis of this decision and its potential impact on extradition.

The fear I have with respect to the amendment that you are proposing to make the wording of the Act more technically accurate is that the system, the way all of the sections are structured, is based on the fact that we have an extradition system that applies to both States and quasi-States and to international courts. By introducing such a distinction—which might well be valid, I agree with you on that—we might have to review the entire bill, line by line, to determine the possible impact on other types of extradition, and more precisely, on the types of extradition that relate to an international courts. In other words, the wording and the structure that we have were not put together and thought out on the basis of there being a distinction made between “surrender” and “extradition,” but instead on the basis of the general notion of extradition, including surrender.

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Introducing at this stage the definition you are suggesting, which could be quite right legally speaking, is not necessary in my opinion and would require a careful review of each clause to determine where adjustments would have to be made. Mr. Turp, although I respect your opinion, we do not feel that is necessary. That is why you are meeting with some resistance on our side.

[English]

The Chair: Is it talked out, Réal?

[Translation]

Mr. Réal Ménard: I would just like to conclude by saying this. The main reason you have not made this distinction between a request for extradition from an international court and from a partner State is the one you have just explained, which essentially you support. However, Amnesty International was not alone in making that request. It was also made by the Canadian Council for Refugees and the four witnesses who appeared yesterday. They told us that this distinction should be included.

Are you not afraid that there will be a Charter challenge?

Some Hon. Members: No, no.

Mr. Réal Ménard: Don't you think that it would be opening the door to some hint of potential discrimination?

Mr. Yvan Roy: As you know, Mr. Ménard, there have been all kinds of Charter challenges. It would not be wise for me to claim that there wouldn't be any.

Mr. Réal Ménard: As you know, Mr. Roy, I am at a time in my life where I am learning about them.

Mr. Daniel Turp: He is taking some law courses.

Ms. Eleni Bakopanos: We cannot predict the future.

Mr. Daniel Turp: It is a good thing, isn't it?

Mr. Yvan Roy: With respect to that change, I do not have any major concerns.

Mr. Réal Ménard: Good. That reassures me, Mr. Roy. I have confidence in you.

Mr. Daniel Turp: The only concern that I would have, Mr. Roy, is...

[English]

The Chair: Ladies and gentlemen, I have my gavel now.

[Translation]

Mr. Daniel Turp: I would add that the only concern you could have is that you might have to come back every few years, if not earlier than that, to propose some additional amendments if you see that your system that does not make this distinction is not working.

An Hon. Member: Precisely.

Mr. Daniel Turp: Perhaps we could avoid that.

Mr. Yvan Roy: If it came to that, it would be because the courts would have made rulings that I could not predict at this point. If that were to happen, the dialogue between Parliament and the Supreme Court, which makes decisions and provides direction, would take care of it. Parliament would then be called upon to make the necessary amendments.

At this stage, however, if I were really afraid that that might happen, I would say that we should go back to the drawing board. For the time being, once again and with all due respect, I am not afraid of that happening.

Mr. Daniel Turp: Thank you.

[English]

(Clause 2 agreed to)

On clause 3—General principle

The Chair: Clause 3 has the first Reform amendment. The argument on this will cover Reform amendments 1, 5, 7, 16, 18, and 23, which just for purposes of greater clarity refers to clauses 3, 13, 15, 39, 43, and 46.

Mr. John Reynolds: I think amendment 5 is mistaken. It's a different amendment from what we've been talking about.

The Chair: All right.

Mr. John Reynolds: Reference 5 is not one of the “shalls”.

The Chair: Reform 5 is not—

Mr. John Reynolds: Reform 5 is not one of those. It's a different amendment altogether.

The Chair: Okay. So this doesn't cover Reform 5.

Mr. John Reynolds: Why don't we just do them as we go along. We can just scan them quickly.

The Chair: Okay. Mr. Reynolds, you move this motion?

Mr. John Reynolds: Yes.

Our position is the same on these amendments. We believe the minister should not have the final discretion. In most cases in courts, judges make decisions that are respected by the crown. We think it's an unnecessary step.

The Chair: Thank you.

Ms. Bakopanos, did you have any further comments on this?

Ms. Eleni Bakopanos: No. I think I made myself clear at the beginning. That's the whole principle behind this bill.

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): I have a comment. The comment I would make is that judges are not accountable. They do follow the law, but they are certainly not accountable for their individual actions in the way that ministers would be in the House of Commons. So I think that the current structure proposed by the government, which continues the existing extradition structure, is the most appropriate way to go and offers more accountability to Canadians than a judicial thumbprint.

Thank you.

• 1610

(Amendment negatived [See Minutes of Proceedings])

(Clause 3 agreed to)

(On clause 4—Further proceedings)

The Chair: Clause 4 refers to Reform amendment number 2. Mr. Reynolds, do you move that?

Mr. John Reynolds: I move that clause 4 be amended by replacing line 37 on page 3 with the following:

the person under this Act, unless the judge is of the opinion that those further proceedings would be an abuse of the process.

This prevents an endless resumption of hearings, so the judge can decide there's nothing really new.

The Chair: Are there any comments? Ms. Bakopanos.

Ms. Eleni Bakopanos: It doesn't really change anything; it just clarifies.

Mr. John Reynolds: Right. It's a clarification that we got from the criminal lawyers who were here the other day. We've spent some time in looking at this. This is one of the clarifications. I don't think it changes anything in particular in the bill; it just clarifies.

The Chair: All right, thank you.

Are there any comments? Mr. Roy.

Mr. Yvan Roy: Quite briefly, Madam Chairperson, I think this amendment merely states what is already the state of the law; i.e., that a judge will always be in a position to stop proceedings when there is an abuse of the process of the court. This is understood at common law.

The way we read the clause—and Mr. Reynolds will correct us if we're wrong—this is purely to put in the legislation that this can be done by a judge. In those circumstances, that's probably a clarification that can be supported from our perspective, at the very least.

The Chair: What did that just mean?

Ms. Eleni Bakopanos: That we accept the amendment.

The Chair: Thank you.

Ms. Eleni Bakopanos: That's good; it's all right.

(Amendment agreed to)

(Clause 4 as amended agreed to)

The Chair: On clauses 5 through 8, I see no amendments on those. Are there any comments on clauses 5, 6, 7, and 8?

Mr. McKay.

Mr. John McKay: The criminal lawyers before us questioned paragraph 5.(a), which says the person may be extradited

(a) whether or not the conduct on which the extradition partner bases its request occurred in the territory over which it has jurisdiction;

So we would be asked to extradite somebody to another state for an occurrence by presumably one of their nationals or one of our nationals for behaviour over which this state has no jurisdiction. This seems a strange idea.

The Chair: The Nuremberg trials.

Mr. Yvan Roy: I'm not sure that the clause is saying they would have no jurisdiction. Rather, they would not be exercising territorial jurisdiction; they would be exercising jurisdiction on another basis, which is perfectly appropriate at international law.

Canada, generally speaking, is satisfied with prosecuting cases that take place within the confines of this country. There are other bases of jurisdiction; i.e., if a victim, for instance, is one of your nationals, or the perpetrator of the crime is a national, if the crime is committed outside of the boundaries of the country, there are some countries that still allow for the prosecution of these people within. There is a quite famous case that is currently ongoing before the House of Lords where the issue is exactly that. The person is in England, is wanted in Spain, but the crimes, if there were crimes committed, were committed in Chile. This allows for that kind of a regime if there is to be an agreement between countries to that effect. That's all that is doing.

So they would have jurisdiction, but they would have taken jurisdiction on a basis different from what Canada uses traditionally—i.e., territoriality.

Mr. John McKay: Okay, that makes sense.

The Chair: Mr. Lee.

Mr. Derek Lee: Are we on clause 8? Are we dealing with clause 8, among others?

The Chair: Yes.

Mr. Derek Lee: Okay, I just have a question.

Because these extradition agreements are not dealt with in the House of Commons but they are certainly part of our law, there are publication provisions here in the statute. Quite properly, there are publication provisions. The publication requirements appear to be mandatory, including inclusion of a 60-day time limit for publication after the extradition agreement is entered into.

• 1615

Can I ask the department's view of what would be the circumstance if there was a failure to publish within the 60-day timeframe? That's in clause 8. As I read it, the treaty would not be...I wouldn't say it was invalid, but in terms of a piece of law it certainly would be suspect. Does the department have a view?

Mr. Jacques Lemire: I can make a preliminary comment, but maybe my colleagues from External Affairs would...not yet?

The purpose of the provision is to ensure that the treaties are made public and to ensure that they are judicially noticed in the context of the proceedings. The publication takes place after the coming into force of the treaty. So the treaty is already in force.

Mr. Derek Lee: But would the treaty provisions be enforceable if they weren't properly published given that this states that the extradition agreement must be published within 60 days? I'd like to hear that it would not be enforceable. I would like to hear that if the government did not properly adhere to the filing requirements of the law, it wouldn't thereafter be entitled to rely on such an agreement in participating in and removing the liberty of a subject.

Mr. Yvan Roy: Basically you're asking what's the penalty for not publishing the treaty.

Mr. Derek Lee: The huge difficulty...it becomes seriously technical, because if it's not published after 60 days and it's found to be invalid, you can't even file it after 90 days. It's arguable that you might have to go back and renegotiate the agreement.

The Chair: Or execute a new one and refile.

Mr. Derek Lee: I'm not sure.

A voice: Do it in 60 days or lose it.

Ms. Eleni Bakopanos: That's what the experts are trying to... I'm not chairing.

The Chair: No, you're not. That's okay. There's something about getting to the end of the table there that...I have the gavel.

Ms. Eleni Bakopanos: I don't have a gavel.

The Chair: We're causing a buzz at the corner of the table there, so we'll just wait for that.

Did you want to go ahead with something, Mr. Turp?

[Translation]

Mr. Daniel Turp: As you know, there have never been penalties for not publishing treaties; that does not exist domestically. Internationally, it exists; when treaties are not registered with the United Nations, they cannot be invoked before the courts. But in Canadian law, penalties like that have never existed. There might be some merit in creating a penalty like that, so that if the treaty is not published within a given time frame, it could not be invoked in court. This would also provide a guarantee for people facing extradition procedures. Otherwise, there are no consequences for not publishing the treaty. You could perhaps think about that.

I am warning you ahead of time that our party will probably present amendments, not today, but during third reading in the House, so that you are prepared for it. By no longer requiring the government to table these treaties in the House, awareness and knowledge of these treaties is limited. Someone tried to convince me last time that this requirement to table with the courts was outdated and should no longer apply. On the contrary, I think that it should be broadened to include all treaties to which Canada adheres.

The thing that I do not understand is why only excerpts from multilateral treaties are published in the Canada Treaty Series; this is not at all consistent with the practice of publishing treaties in this treaty series.

In my opinion, there are two things that do not make sense and should be amended so that the notion of publishing agreements and tabling agreements can be improved in the bill.

[English]

The Chair: Tell us your name so that we have it on the record, please.

• 1620

Mr. David Allin (Deputy Director and Head of Treaty Section, United Nations Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade): I'm David Allin, deputy director of the United Nations criminal and treaty law section.

With respect to publication of treaties, we do have the Canada Treaty Series in which we publish the vast majority of treaties that enter into force for Canada. That is a procedure. We have about 3,000 treaties in the Canada Treaty Series. The recent treaties that aren't actually in the Canada Treaty Series—because it takes some time in order to actually get the treaty published—are available publicly. Soon, perhaps within a year or two, our treaties will be available on the Internet.

So in response to your comment, our treaties are available publicly. They're published in booklet form and are widely known.

The Chair: Mr. Allin, can I just ask a question here. We've asked this before. At least in theory I think I may agree with Mr. Turp. I don't understand why every treaty your department negotiates on behalf of the Government of Canada, which is us around the table, shouldn't be tabled in the House of Commons and available in that forum. I don't understand your objection to that. I don't understand why treaties aren't published. You're not working for yourselves; you're working for Canadians.

Mr. Daniel Turp: But they are published.

Mr. John McKay: They're not gazetted. That's the point. If it's not gazetted, you lose it.

Mr. Daniel Turp: Maybe they should all be gazetted as well. They are more accessible if they are tabled. They should all be tabled.

The Chair: I don't understand. It's not a private club; it's the Parliament of Canada. We represent the people of Canada. What's the big objection to tabling?

Mr. David Allin: Treaties have been and were tabled up until 1990. After that, at about 1990, a question of resources within which to do the actual tabling has arisen. The practice arose of discontinuing the tabling.

The Chair: Is it expensive to table the treaties? It's a piece of paper published in both official languages. You just walk over there and put it on the table.

Mr. David Allin: It's numbers of treaties. We do about 70 treaties a year, and it's increasing on a daily basis. That was the original theory behind the decision to discontinue. It may actually be resumed, because there has been debate. We may very well recommence once resource questions and things like that are taken into account.

Mr. Daniel Turp: You have to. You're in breach of the obligations in the Extradition Act as it is now.

Mr. David Allin: Our extradition treaties, yes.

Mr. Daniel Turp: You haven't tabled those that exist since 1990.

The Chair: Just a minute. I know we're out of our closets here, but I just want an answer to this. Tell me how much money it costs to table a treaty in both official languages in the House. You're printing them anyway. It's just a piece of paper. How much money does it cost?

Mr. David Allin: The average printing cost per treaty is about $300 to $500. We do about 70 treaties a year. Included in that price we obtain whatever number of copies.

The Chair: But you print them in the Canada Treaty Series, right?

Mr. David Allin: Yes, that's right.

The Chair: Why don't we just photocopy it and table it in the House?

Mr. Daniel Turp: Use one of their copies.

Mr. David Allin: It could be done actually electronically as well.

The Chair: Yes. There are lots of ways to do it, sir. I just don't understand. I don't get it.

Mr. Daniel Turp: It's now done in Australia and the U.K. and New Zealand. In those parliaments all treaties are tabled now.

Ms. Eleni Bakopanos: Do we have an amendment on the floor, Madam Chair? Maybe we should have an amendment now. That would save us a lot of trouble in the House.

• 1625

The Chair: I'm chairing, so it's not my motion to make. We'll find the clause this is in, and we'll get back to it.

Mr. Derek Lee: Madam Chair, I'm still waiting for an answer to my question about the impact of the failure to publish within the 60 days.

The Chair: If it's not published within 60 days, is there any impediment to relying on it in a court or tribunal in Canada?

Mr. Derek Lee: Madam Chair, before that, I'm just going to leave my place to try to obtain the answer on the phone. I think I can have it on the phone. It may be of assistance, at least for me.

The Chair: Go ahead, Derek.

Mr. Derek Lee: Thank you.

The Chair: Did Foreign Affairs have any further comment on that?

Mr. Keith Morrill: My only comment was that in fact there would be, in relation to clause 8, two forms of publication, one under the Canada Gazette and one under the Canada Treaty Series. Obviously, our department is responsible for publishing the Canada Treaty Series.

As I understand the intention of this act, it's not the intention that failure to publish would necessarily avoid the possibility of an extradition. I would think that one could not proceed with an extradition—please correct me if I'm wrong—if the court did not have in front of it the text of the treaty. I think that goes without saying. I do not think that one would wish to see a treaty that has already entered into force be in effect treated as a nullity because a deadline had been missed.

Perhaps Mr. Lemire has some comments on how that would work.

Mr. Jacques Lemire: As you can read from the provision, publication takes place after the treaty has come into force. There's no indication that not publishing has any impact on the validity of the treaty. There is no indication of that in the provision.

The purpose of the provision is to ensure that the treaty is published, and that once it's published, it's judicially noticed. If the treaty were not published, it would not be judicially noticed. That would be the effect as we have it now.

The Chair: Therefore it couldn't be relied on in a court of law.

Mr. Jacques Lemire: It would have to be proven otherwise.

The Chair: Okay. Well, that helps.

Mr. Reynolds, you had something? You're fine.

Mr. Derek Lee: Did we get an answer?

The Chair: Yes, we did, but we can't tell you what it is. We'll have to shred it.

Some hon. members: Hear, Hear.

Mr. Derek Lee: I'm sorry, can I ask what the answer was?

The Chair: Yes.

Mr. Jacques Lemire: It would be my pleasure, Mr. Lee, to repeat it.

As I indicated, the provisions in clause 8 are meant to ensure that the treaties are published in order that they're made public and made known. There is an obligation to publish, but there's no sanction vis-à-vis the validity of the treaty in the section. The result is that if there's no publication, the treaty is not judicially noticed as provided for in subclause 8.(3). It would then have to be proven otherwise.

The Chair: Is that all right?

Mr. Derek Lee: Okay, I think that's consistent with—

The Chair: What you heard.

Shall clauses 5 through 8 carry in spite of the chair's little snit here?

[Translation]

Mr. Daniel Turp: Will we examine the draft amendment later?

[English]

The Chair: Are you working on it?

Mr. Daniel Turp: Yes.

The Chair: What clause would that amend?

Mr. Daniel Turp: It would add subclause 8.(4).

The Chair: I think I precluded that. I just passed...

Were you objecting to carrying clause 8?

Mr. Daniel Turp: Yes.

The Chair: Then shall clauses 5, 6, and 7 carry?

(Clauses 5 to 7 inclusive agreed to)

(On clause 8—Publication in Canada Gazette)

The Chair: On clause 8, did you want to say something?

[Translation]

Mr. Daniel Turp: If you were to give me a couple of minutes, I would draft a new subclause on tabling these treaties in the House.

[English]

The Chair: I'll keep clause 8. I'll stand it down for a minute.

(Clause 8 allowed to stand)

(On clause 9—Designated extradition partners)

On clause 9, the Bloc has an amendment, BQ-1. Did you want to speak to that?

[Translation]

Mr. Daniel Turp: That is a very technical amendment. I believe I detected a mistake in the French translation of subclause 9(1). We need to make sure that the French version clarifies that only the members of the Commonwealth whose names appear in the schedule are designated as extradition partners. The French version simply needs to be corrected.

• 1630

[English]

Ms. Eleni Bakopanos: Yes.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 9 as amended agreed to)

The Chair: Now, on clause 10, we have Reform amendment number—

Mr. John McKay: Just before you get off clause 9—

The Chair: Yes.

Mr. John McKay: We're talking about how states or other entities that appear in the schedule are designated extradition partners. In your entities section, you have “a territory”. How is “a territory” on a schedule? Do you have territories that are in schedules that are recognized as extradition partners?

Mr. Jacques Lemire: There's no territory as such that is designated in the schedule as it stands now.

The Chair: Is there a situation under which there could be in the future?

Mr. Jacques Lemire: Yes.

The Chair: And is that the reason it's there?

Mr. Jacques Lemire: Yes. It's meant to be wide and flexible.

The Chair: Thanks.

Mr. Daniel Turp: It's Taiwan.

Mr. Jacques Lemire: That's one possibility.

Mr. John McKay: Failure to appear on a schedule does not invalidate the extradition process.

The Chair: Order, please. Mr. McKay has the floor.

Mr. John McKay: I just want to clarify the point that failure to put a territory on a schedule doesn't invalidate the extradition process. You said no.

Mr. Jacques Lemire: No. Bear in mind there are three types of extradition partners we can extradite to: those with whom we have a treaty or a multilateral agreement they are a party to as well; those who are designated in the schedule; and those with whom we would have a specific agreement. These are entities, or states or territories, we can extradite to.

Mr. John McKay: What's the difference between a specific agreement and a bilateral treaty?

Mr. Jacques Lemire: A treaty will be an agreement that is standing between two countries; it would be similar to what we have with the United States. Our clause 10 provides that the Minister of Foreign Affairs may enter into a case-specific agreement with a state. Essentially, the Minister of Foreign Affairs, with the agreement of the Minister of Justice, may enter into an agreement with a state or entity for a specific purpose in a specific case. That would apply for example to a state with which we have no treaty and which is not designated in the schedule.

Mr. John McKay: Just so I understand this, you would have to enter into an agreement with the entity before you would be able to commence the extradition process?

Mr. Jacques Lemire: Yes, in order that this entity be a partner we could extradite to.

The Chair: Thank you, Mr. McKay.

Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I would ask one question so that I understand the word “entity” here. Let's say there is full integration of justice within Europe. Is the new integrated Europe considered as an entity?

The Chair: We have all the trick questions today.

Mr. Jacques Lemire: I think “state” or “entity” is widely defined and includes a “territory.” I'm hard-pressed to answer that question; it's hypothetical, but I cannot exclude it.

The Chair: Let's go to the gentleman from Foreign Affairs. If there were a united justice system in the European Union, would it not be likely that we would enter into some kind of treaty with them in any event?

Mr. Keith Morrill: As my colleague Mr. Lemire has said, it's hypothetical, but certainly we do enter into treaties with the European Community on matters that are within their competence. In the unlikely event that justice matters were rolled into third pillar EU matters, I would think the legislation is drafted to cover such unusual circumstances. I think you could probably do it and it would be a good thing. Obviously, if all of a sudden all your treaty partners turned around and said you can't talk to us, you have to talk to those people in Brussels, it would be a good idea to have a legislative structure that allowed us to do that.

• 1635

“Entity” can also include subnational entities such as Hong Kong or Taiwan, things like that, which do have different systems from their parent state.

[Translation]

Mr. Daniel Turp:

[Editor's Note: Technical difficulties] —both, I would say.

[English]

The Chair: Do you need any further help?

Mr. John McKay: The problem with the concept of territories is it starts to open itself up. I'm thinking of first nations in other jurisdictions.

The Chair: Well, the West Bank, or Gaza, or the Palestinian territory would be an example, would it?

Mr. Turp agrees with me. It's a good idea to always agree with me, Mr. Turp.

Mr. Daniel Turp: You have something on tabling; you're very...

The Chair: I'm sorry, are you still struggling, John, or are you prepared to let me go on?

Mr. John McKay: No, I'm going to let you go, because I can't quite get my head around where we're going with the concept of territory. We're moving into an area of imprecise legal definition, yet it is a very significant concept in the act.

The Chair: Welcome to international law.

Mr. John McKay: Well, that's it, and certainly when it comes to the liberty of the subject, precision is preferable over imprecision. So I keep circling this idea of a territory as something that may create some legal difficulties in the future. I don't quite know where the difficulties are, but there are a lot of claims of various entities to sovereignty, and I wonder whether we're opening ourselves up into a bit of a minefield here on various claims of jurisdiction.

The Chair: Can we move to an example? Would it help—

Mr. John McKay: I can't. Well, if I could get an example, I could—

The Chair: Let me try one. What if somebody came here after committing a crime in the Palestinian territory? What would happen? What would happen if they came to us and said Fred Smith committed murder while he was visiting in Ramallah City and we want him back to try him? What would we do?

Mr. Jacques Lemire: Well, it would be for the Minister of Foreign Affairs, in consultation with the Minister of Justice, to determine whether that territory would be designated one way or another. The purpose of such designation would be, after assessment, to ensure cooperation in the administration of justice and in bringing persons to trial. I have every reason to believe due consideration would be given as to whether or not a designation should take place, but that opens up the possibility, and the focus here is not political but whether to cooperate in the administration of justice in appropriate circumstances.

The Chair: Are you looking pained?

Mr. Keith Morrill: No, actually I was looking admiringly at Jacques' response.

A comment I would make is that in a treaty it takes two to tango, whereas under the designation area it doesn't. One issue you can have when dealing with foreign countries is they may have a different approach as to treaty-making, or who is in charge of their process for what they can do, from what we have.

Our position is clear. We have treaties with states, and we have treaties with international organizations that have that authority pursuant to the powers of the treaty. But there may be places, and Hong Kong is a good example, that are part of a state, part of China, and nevertheless China might well say—I can't, not being expert on Hong Kong—we have reached an agreement among China, Hong Kong, and the United Kingdom, saying that we are obliged not to deal with these issues for 50 years. We will not raise issues of extradition relating to Hong Kong. We have stepped back from this issue.

• 1640

Therefore, you face a question of whether we just never extradite anyone to Hong Kong. Alternatively, if Hong Kong does not have treaty-making power, you put a system in place. One of the ways you can deal with that is through the designation. You don't have to get into the question of treaty, because you have a unilateral system here.

There can be other situations. I think you mentioned the idea that the entity may claim to have a treaty-making power, but signing a treaty with them is effectively an act of recognizing that entity as a state. I think you can depend on the Minister of Foreign Affairs to not just stumble into signing a treaty with someone. It's a very important act that has very important consequences. For that reason, it's important that the legislation provides another way of providing this very important process of bringing alleged criminals to justice.

Mr. John McKay: But you have a conflict in issues there. You have a conflict between a political recognition of a particular territory, state, or entity, versus a claim by that entity to or from, at the liberty of the subject. You are therefore thrust into a profound dilemma.

For purposes best known to the Minister of Foreign Affairs, it may well be that he or she doesn't want to recognize this particular entity or territory, yet the individual over whom we have control and custody has committed some significant crime and would be an extraditable person in other situations. I'm not quite sure how you're going to deal with that.

Mr. Keith Morrill: It's an important issue. Exactly because it's an important issue, I think the legislation is designed to address that concern by dealing with the possibility of scheduling a country without a treaty. That's there mainly to maintain the historical process we have had with the Commonwealth states, and the section recognizes that.

In addition, the scheduling could also be a very useful process in the example of an entity that did not have treaty-making power but to which there was nevertheless an important reason to extradite, or indeed an entity that has treaty-making power but for some reason was unwilling to enter into a treaty. The scheduling creates an option that is in the control of the Government of Canada and the Minister of Justice.

The Chair: Okay, John?

On clause 10, then—

[Translation]

Mr. Daniel Turp: Just a second, please.

I think it's a good question because clause 9 does give a degree of discretion to the Minister of Foreign Affairs, who must consult the Minister of Justice. Having this discretion, he may add any State or any territory to the list, without legislative or parliamentary approval or control. In order to satisfy our colleague, perhaps we would have to stipulate that any territories added to the list would have to have the appropriate jurisdiction. It's true that, as it stands, the clause gives the Minister full discretion to designate territories. It may be true that he uses his judgment in general, but we are leaving him a great deal of discretion. To make our colleague happy, we would have to say that the only territories that may be designated are those having jurisdiction with respect to extradition, since the central government of a State does not always have this competence.

I'm not sure that this is essential, but you are right to point out that this discretion might be a problem.

The Chair: Thank you, Mr. Turp.

Now, Mr. Saada.

Mr. Jacques Saada: I would like nonetheless to express a reservation, although it's hard for me to put my finger on it. There are still some political situations where the Minister of Foreign Affairs must have this room to manoeuvre and where it is desirable.

• 1645

Take the case of an airplane hijacking, for example. It may very well implicate a number of parties, including one that does not have decision-making power, even though it is involved in the process. I don't have a specific example in mind, but I'm raising the question. I think it's extremely important, from the point of view of effectiveness, to give the Minister of Foreign Affairs this room to manoeuvre. I don't know whether it's logical to think this way, but—

Mr. Daniel Turp: It's logical. On the one hand, we are asking Parliament to approve a list, while on the other hand, we are not giving it a say about the rest of the list or the territories and entities to be added to it. The current wording authorizes the Minister of Foreign Affairs to proceed by order in adding names to the schedule.

Mr. Jacques Saada: That's not really an issue for me, but I understand.

[English]

The Chair: Can I move on to clause 10? Réal Ménard.

(On clause 10—Specific agreements)

[Translation]

Mr. Réal Ménard: I'd like to ask a question about clause 10.

[English]

The Chair: Just let me introduce it, then.

Clause 10 is before us, and we have a Reform amendment that would add a new clause to it.

Let's first stay with the body of clause 10 as it exists on the document that we have before we go to your amendment, John. I'll just see if there are any comments on clause 10 as it stands.

Mr. Ménard.

[Translation]

Mr. Réal Ménard: Some of you were here for the discussion we had yesterday with some criminal lawyers who were highly concerned about the whole notion of evidence and the authenticity of the documents used by an extradition judge and others involved in the system to make decisions.

I would like to ask you why you felt the need to suggest to the lawmaker, in subclause (3), a text that reads: “a certificate—is conclusive evidence of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.” Are you not afraid that this would give rise to dishonest practices and in the end to forgers' being able to take advantage of such a provision?

Mr. Yvan Roy: A provision like this one basically allows for a certificate to be filed, which clearly facilitates its being given in evidence. It is common practice to say that when such a certificate is used, proof of the signature is not required as well. Otherwise, we would be undoing what we are trying to achieve. We want to have a certificate that is conclusive evidence. If you want to have the person who signed that certificate come and attest to his certificate, you might as well have the person right there. This is an accepted manner of conducting cases.

This provision only allows for the document in question to be admitted as evidence; if there are reasons to doubt its validity, countering evidence can be presented. It's a question of admissibility and not one of weight or of ensuring that you cannot submit evidence. On the contrary, this proposal is intended to facilitate a type of evidence that, in itself, should not oblige the person to come and testify.

The current wording of the extradition bill brings to mind the documents that would be signed by the American Secretary of State. Would we call on Madeleine Albright to travel to Canada every time she signs a document on behalf of the US government? Of course not. We need a certificate. If the signature had to be attested to, this amendment would no longer serve any purpose.

Mr. Réal Ménard: But that's not the point I wanted to make, Mr. Roy. Yesterday, when we were talking precisely about the American example, we were told that the affidavits used had been deemed authentic but, after verification, they proved to be false. Why does the bill say that the certificate is “conclusive evidence”? I realize that we can't expect people to come here physically, but I'm uncomfortable with the fact that no proof of the authenticity of the signature is required.

You are telling me that because a document is signed, it is deemed true. Is there no mechanism that would allow us to verify its authenticity? How does one go about verifying authenticity? You seem to be satisfied with the fact that the document is signed. However, the criminal lawyers told us that errors had in fact been made in the system and they referred in particular to the United States.

[English]

The Chair: That's a different subject matter from the subject matter of this clause, though. I'm very interested in your question, but—

[Translation]

Mr. Réal Ménard: The subject of the clause is the affidavit; that is what's referred to in the case of the United States. However, regardless of the document, the question of principle is why a bill should stipulate that there is no need to prove its authenticity. We accept that a document that has been submitted is deemed to be authentic.

• 1650

Mr. Yvan Roy: I'll answer your question by way of example. Subsection 7(10) of the Criminal Code provides specifically for the admissibility in evidence of a certificate issued by the Secretary of State for Foreign Affairs. The text reads as follows:

(10) ... in any proceedings under this Act..., a certificate purporting to have been issued by or under the authority of the Minister of Foreign Affairs... is admissible in evidence in those proceedings without proof of the signature or authority of the person appearing to have signed it...

You will agree that this text matches exactly what we have here. It's a way of submitting evidence. If it were always necessary to prove the authenticity of the signature applied, it would mean that Mr. Axworthy would potentially have to appear before every court in Canada and say: “Yes, that really is my signature on this document.”

The bill simply says that the signature is deemed authentic and allows us to file the document as evidence. There will be the possibility of filing evidence to the contrary. The bill provides for the possibility of working this way, by certificate, and in order to make it effective, you have to have that measure. What we are proposing in Bill C-40 is just that.

Mr. Daniel Turp: A similar provision exists in a number of other federal acts.

Mr. Yvan Roy: Yes, it's used commonly.

Mr. Daniel Turp: For example, in the new Oceans Act.

Mr. Yvan Roy: And in provincial legislation too.

Mr. Réal Ménard: But you remember what the witnesses told us yesterday?

[English]

The Chair: There's the Immigration Act and the Citizenship Act.

[Translation]

Mr. Réal Ménard: You recall what the witnesses said yesterday?

[English]

The Chair: The point is, Mr. Ménard, that nothing precludes a defence lawyer from saying this is not Lloyd Axworthy's signature and providing some evidence to prove it. Then we're into it. The only way to prove a signature in court is to have the person who signed it identify it or have a witness identify it. For example, I could say that, yes, I was there, and I saw Réal Ménard sign that piece of paper. This is just a short form in the case of official documents that's commonly used, but it doesn't preclude the defence from challenging the validity of the signature.

[Translation]

Mr. Daniel Turp: That's very difficult and it never works.

[English]

The Chair: This is different from the other issue that was raised of what happens if we get a false affidavit, as we did in the case of Leonard Peltier. This was the other issue. But we can come to that. It's answerable later in the bill.

Mr. John McKay: I wonder how it interacts with subclause 10.(3) here, which says “the specific agreement is conclusive evidence of the statements”. How would a defence counsel challenge the authenticity of those signatures if this is conclusive?

The Chair: No, you're never precluded from challenging the signature. You're not precluded from doing that.

Mr. John McKay: Then why write it such that it's conclusive?

The Chair: If one signature is proven, the contents of the document are accepted so as to give it judicial notice. That's all.

Mr. Yvan Roy: So it's admissible. When it goes before the court, if it's not challenged, it becomes proof of what's in it. But if it's contested, then you're back to square one, and that has to be debated before the judge.

Mr. John McKay: You're back to square one, and you can challenge the authenticity of the person who has apparently signed the document.

Mr. Yvan Roy: Yes, exactly. A document that's not authentic is not proof of anything, so it's got to be established first. Once it's established, though, it conclusively establishes the validity of that agreement we're talking about.

The Chair: Keep in mind that this is only done primarily with public officials, so you're in a situation here where it would be very rare to challenge the signature of the Registrar General of Canada, Minister of Foreign Affairs, or Attorney General on the indictment or whatever documents there are.

Mr. John McKay: That's not what the Criminal Lawyers Association of Ontario was saying yesterday. They said this was a wonderful little source of a challenge.

The Chair: I think it would be rare and difficult to do it.

Mr. John McKay: I understand the administrative need, but I just caution that this looks like it's going to be a source of challenge.

The Chair: As for the body of clause 10, is there any other discussion on that? If not, I'll go to Mr. Reynolds and his motion.

Mr. Reynolds, you have the floor.

Mr. John Reynolds: Madam Chair, I move that Bill C-40 be amended by adding after line 20 on page 5 the following new clause:

10.1 Despite any other provision in this or any other Act of Parliament, the Minister of Foreign Affairs shall disclose to a person who is the subject of a request for extradition and the court from whom an order of committal in respect of the person is sought under section 29 the entire contents of the specific agreement referred to in subsection 10(3) and such background documentation as is necessary to provide both the person and the court with information respecting the context in which the agreement was made. Disclosure of the contents of the agreement and the background documentation shall be made for the purpose of allowing both the person and the court an opportunity to assess the legitimacy of their request and ensure that the request complies with the terms of the agreement.

• 1655

This was recommended to us by the group that appeared yesterday. It gives full disclosure of the agreement so that the defendant can make a full answer.

Mr. Keith Morrill: I confess that what I understand the intent of this to be may perhaps be based on a misunderstanding of subclause 10.(3).

Any specific agreements that were to be the basis of an extradition would be public documents. The court would have to have them in front of them. The structure of the legislation is such that it's not really possible for the extradition to take place.

So the first comment I would make is the entire contents of the specific agreement would certainly be in front of the judge and available to the person. What we're talking about here is a very specific form of treaty, and it is, like any other treaty, a public document.

There isn't any question that the specific agreement would be in front of the judge and available to the person. So in that sense, I'm not clear on the need for such an amendment.

I have some considerable difficulty with the other issue that is raised by this proposed amendment, that such background documentation is necessary to provide both the person and the court with information respecting the context in which the agreement was made, in the sense that international negotiation is a process that can proceed in a number of ways, but certainly the starting point is that communications between states are confidential.

The outcome of the process is a document that must be public and available to the judge and the accused, but I don't think it's an appropriate approach to essentially start by questioning the reason why a particular agreement was entered into. The agreement itself is the document that the judge must consider and the person who is being extradited must address. The act itself, of course, as the present legislation, has a whole series of stages whereby particular concerns of the individual can be addressed, and a judge must be satisfied of certain things before the extradition can proceed. So the judge will have the agreement in front of him or her, as will the individual, and the act contains the assurances the judge must be satisfied of before the extradition can proceed.

In terms of the words “the legitimacy of the request,” I find that odd wording. The request must comply with the terms of the agreement, otherwise it can't proceed. Other than that, if the suggestion is that the request is made for improper reasons, then there are various discretionary matters both within the hands of the court and also the Minister of Justice. But of course in a specific agreement there's very little possibility of improper reasons, I would think. It's an agreement that one negotiates with a particular case in mind and therefore has the issues related to that particular individual case in mind when it's negotiated.

Those questions can come up, I would think, in the general treaties, but there you have the discretion of the Minister of Justice and the discretion of the judge to filter out those problems.

Mr. John Reynolds: Where does it say in the act that the judge has everything in front of him?

• 1700

Mr. Keith Morrill: You're quite right that it doesn't say that, but the structure of the statutes can't really work in the absence of the judge being able to consider the agreement. These agreements are public documents, and must be in front of the judge in order for the judge to proceed under the act.

The Vice-Chairman (Mr. John Maloney): Mr. Roy, do you have a comment?

Mr. Yvan Roy: I am convinced that there exists a constitutional obligation on the part of the state to let the person who is to be extradited know about the case and fully disclose what it is they have in order for the person to prepare himself or herself and then to face up to the procedures that have been started against him or her.

It is my submission to you that we do not need to state what is already part of our law. And if the only purpose of subclause 10.(1) is to make sure there is going to be disclosure of what is the case against that particular individual, I submit to you that this is not needed.

If the purpose of the clause is to go behind the agreement in some fashion and to disclose the negotiations and discussions that have taken place between the state of Canada and whatever other entity or state for the purpose of having that specific agreement, I would have to endorse completely the comments of Mr. Morrill. This would not be appropriate. This is clearly something that should take place between states.

What is appropriate for the person who is facing extradition is the treaty arrangement entered into by the two countries, and that is going to be before the court. There is no question about that. There will be before the court a full disclosure of what is the case against that individual, so that he will be able to prepare. And at the end of the day, it is on the basis of those documents and that evidence that the decision will be made by a judge and ultimately by the Minister of Justice.

Mr. John Reynolds: Where does it say in here that the person being charged has all this information before him? And that's the case made by the lawyers who are here, that it's not there.

Mr. Yvan Roy: This is a state of the law. It would be clause 7, the obligation to disclose to someone. It would be a combination of clause 7 and section 6 of the Charter of Rights and Freedoms. Section 6 is the right you have to stay in Canada; that's constitutionally enshrined. Clause 7 is the procedure that is to be followed when you're undertaking to remove someone out of the country. And clearly these require that there be disclosure of the case against the individual. Otherwise, you have a significant problem before the judge.

[Translation]

It's the right to freedom in keeping with the principles of fundamental justice. It's the Stinchcombe ruling that flows from this section 7.

[English]

The Vice-Chairman (Mr. John Maloney): Mr. Lee and then Mr. Turp.

Mr. Derek Lee: Thanks to the amendment proposed, it becomes clear on reading that a specific agreement under clause 10 is not an agreement that is published under clause 8, and that specific agreements are specifically excluded from the definition of “extradition agreement”. So when the subject is brought before the court, there is no guarantee that there will be a full indication of the specific agreement. In fact, subclause 10.(3) inclines me to think that we're seeing here a process that provides conclusive evidence of the existence of a specific agreement and any necessary elements of the specific agreement relevant to the extradition application. But you don't have anywhere here a requirement that would have the specific agreement fully presented anywhere.

If the matter is in front of a judge, and Mr. Roy has stated this, it's highly unlikely that a party before a judge would be unable to cause the judge to ask for the entire specific agreement. But I'm not convinced by the wording here, and I'd like Mr. Roy to answer this, that a judge would require the entire specific agreement in front of him or her before they made a decision. I'm just thinking of some little guy or little lady in front of a judge who has no lawyer and doesn't understand too much, and there is no specific agreement in front of the court, only a statement of a minister that a specific agreement exists, and no prior publication of the specific agreement because it's not required under the act. There's a one-off agreement with Paraguay and that's not even an extradition agreement; it's simply a one-off specific agreement to take Mr. X and send him back to Paraguay.

• 1705

So I'd like Mr. Roy to convince me that our subject will be able to have access to the whole specific agreement under which he's going to be extradited.

The Chair: Go ahead, Mr. Roy.

Mr. Yvan Roy: Thank you, Madam Chair.

I'm just trying to imagine a case where the specific agreement between states would not be put before a judge. Whether it's a specific agreement or any kind of other arrangement, such as a multilateral agreement or a bilateral treaty with a country, these are the legal instruments that are needed in order to achieve the state's goal of extraditing someone—sending someone elsewhere.

I just can't imagine a judge not having a complete specific agreement in front of him or her and making a decision. The agreement is, by definition, what starts this process. If you don't have an agreement you don't have anything. If you have the specific agreement in front of the judge, some paragraphs have been deleted, and fraud has been perpetrated on the law by the state, we're talking about a gross abuse of power on the part of the state. You're talking here about the state of Canada putting its honour on the line by doing something like this without thinking about the consequences that politically and otherwise would flow from this.

I just can't imagine something like this being done, which is quite different from saying we need to have all of the drafts that may have been done of that agreement, or some notes that were done by Mr. Lemire when he negotiated the agreement, or someone else. That's a different issue altogether.

I'm talking here about the full agreement reached between the countries that would not be before the judge. This would be a very serious cause for concern, politically and legally in this country, and I just can't see that happening. There are consequences for perpetrating a fraud on the law like this—serious consequences.

Perhaps my colleagues would like to add something.

Mr. Jacques Lemire: I don't have anything to add. I don't see why the individual would not have the specific agreement itself. Beyond that, I fully agree with Mr. Morrill and Mr. Roy that what may lead to the agreement and the background to it is a totally different matter, and the agreement should be taken at its face.

Beyond that, these are state-to-state communications. Other issues are raised with the rest of the provisions. On having the court assess the legitimacy of the request based on other matters under the scheme of this act, this is not an issue for the court, but would be an issue for the minister in due course. The fugitive can oppose surrender.

I don't have a concern that an individual would not get a copy of the specific agreement itself. I don't see that. Please bear in mind as well that an individual whose extradition would proceed, based on a specific agreement, would have the full benefit of the provisions of this act, and the specific agreement cannot derogate or prevail over that. The specific agreement, when proceeded upon, allows a person to have the full protection of the Extradition Act as it exists.

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These are my comments. I think they're very much in line with what's already been said.

Mr. John McKay: Is a specific agreement also an extradition agreement, and therefore must be gazetted?

Mr. Jacques Lemire: No.

Mr. John McKay: You work your way through the definitions, and a specific agreement is set out here. But it looks a lot like an extradition agreement, feels a lot like an extradition agreement, smells a lot like an extradition agreement, so is it an extradition agreement? And if it's an extradition agreement, then it's going to have to be gazetted.

Mr. Derek Lee: No, it's explicitly—

Mr. John McKay: I know it's explicit, but you work up through the argument. If you're defence counsel, that's exactly where you go.

Mr. Daniel Turp: But it's not gazetted. It's clear in clause 2: “agreement...other than a specific agreement”. It excludes.

Mr. John McKay: “Specific agreement means an agreement referred to in section 10 that is in force”. Maybe for greater certainty you should say “and it is not an extradition agreement”; that way you avoid all your other problems.

A voice: It's not an extradition agreement.

Mr. John McKay: It doesn't say that. It just says “means an agreement referred to in section 10”.

The Chair: Just to help me here, when would you have a specific agreement? Have we ever had one? What's it for? How often do we sign them? When will we do it?

Mr. Lemire.

Mr. Jacques Lemire: No, we don't have provisions for specific agreements presently in the extradition legislation. We have provisions for designations. There have not been very many of those. To my knowledge, there have been three, and there's only one remaining. They're not common. When would this occur...?

The Chair: I want to know what you're thinking of when you draft this, because it almost sounds to me that you're going to enter into an agreement with the state to extradite John's mess.

Mr. Yvan Roy: That's exactly it.

The Chair: And why would we do that?

Mr. Jacques Lemire: Because we would not have, for example, a treaty with that state—

The Chair: Okay.

Mr. Jacques Lemire: —and that state would not be designated in the schedule.

The Chair: So John Smith goes to Albania and goes nuts and comes home, and we don't have an agreement with Albania, but Albania wants him back. So we go through how they're going to try him, how their system works and everything, and we say that in this case what John Smith is accused of is so heinous we're going to sign this agreement to extradite John Smith, and then he becomes subject to this act and he goes through the process.

Mr. Jacques Lemire: That's right.

The Chair: Okay, I understand.

Mr. Yvan Roy: It's essentially case-specific—

The Chair: Boy, would I like to defend that one.

Mr. Yvan Roy: —in cases that are not otherwise covered.

The Chair: Yes.

[Translation]

Mr. Daniel Turp: I would like to come back to the amendment being proposed by the Reform Party, which is intended to ensure that a person who is the subject of a request for extradition has access to the documentation. In reading the bill, we do not see that such a person who would be able to get hold of the specific agreement because, to begin with, as Mr. Lee pointed out, it is not published because it is excluded from publication. Further, subsection 10(3) could perhaps be interpreted as preventing such an agreement from coming before the court, because a certificate could attest to the contents of the agreement without there apparently be any need for it to be filed in court. Therefore, it is very easy to justify the first part of the amendment, if we want to ensure that the specific agreement is provided to the person.

As for the background documentation, that's another matter which is much more complex. The documents leading up to an agreement are not usually judicially noticed; they are not published. I'd like to hear your opinion on this. Would it not be a good idea to delete the exception contained in clause 2 which says that specific agreements are not published, so as to ensure that the person can have access to the agreement under which he is being extradited, or if this is not the case, to add a new provision like clause 10.1 that the Reform Party is proposing?

[English]

Mr. Yvan Roy: With your permission, I'll try to say this in English, because it was started by Mr. McKay and hopefully it's going to be clearer. I'll try to be as systematic as I can.

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The way I read this, clause 8 provides for the publication, at which point the court can take judicial notice of the document. In other words, it does not have to be proven before the tribunal. A specific agreement, we all agree here, is excluded from the requirement that it be published, which would mean that you need to prove the agreement in front of the tribunal in order for that document to be in front of someone for the purpose of extraditing that individual.

When I go to subclause 10.(3), the way I read this is to say that merely what the minister responsible for foreign affairs is doing is issuing a certificate in which he is saying we have an agreement with that country in that case, which is specific, and the contents of the agreement are those that have been agreed to between the two countries.

That does not mean that Canada does not have to prove the agreement. That simply says that this is a way of proving what is in there and what has taken place. You still have the obligation, if you're Canada and you have to extradite someone to another country, to prove the agreement, because otherwise the judge has nothing in front of him or her for the purpose of extraditing that person.

You have a certificate that says we have an agreement. I'm telling you that the contents of the agreement you have in front of you are certified by me. This agreement is not published. Someone has to prove that agreement so that the judge will have jurisdiction on the basis of the statute here. Otherwise there is no jurisdiction. What is the authority of the judge to extradite someone outside of this country if there is no agreement and it's not in front of him or her?

[Translation]

Mr. Daniel Turp: We only wanted to guarantee that the specific agreement would be made known to the person who is the subject of a request for extradition.

Mr. Yvan Roy: I spoke earlier about the disclosure that must take place before a person can be extradited. Clearly the agreement under which the person may be extradited must be disclosed even before the extradition hearing. A disclosure of information therefore takes place so that the person can prepare. In addition, evidence of this agreement must be submitted to the court, to convince the latter that there really is an agreement in place. Finally, it must be proved that the individual committed the offenses as set out in the agreement that is in place. When all these conditions have been complied with, the court makes its ruling as to whether the person should be extradited or not.

Mr. Daniel Turp: So you are answering yes to the question.

Mr. Yvan Roy: The agreement is before the court. Absolutely.

Mr. Daniel Turp: Under what law? Section 7 of the Charter?

Mr. Yvan Roy: With regard to disclosure prior to the extradition hearing, in my opinion, section 7 clearly sets out this obligation for the Canadian government. What is more, it must submit evidence of the agreement at the hearing. It's one thing to disclose information; in criminal affairs, evidence is continually disclosed. That doesn't mean that because I disclose something to you, it will all be admissible in itself. That's a different exercise once we are before a court. That is why I say that the existence of the specific agreement must also be proved.

Mr. Daniel Turp: But doesn't the evidence imply the disclosure of its contents?

Mr. Yvan Roy: Absolutely. I have absolutely no doubt about that, absolutely no doubt.

Mr. Réal Ménard: Under the legal guarantees?

Mr. Yvan Roy: Under the general and specific legal guarantees with regard to evidence in Canadian law. In my humble opinion, there is absolutely no doubt about it.

Mr. Daniel Turp: Does the amendment being proposed by the Reform Party, which follows up on testimony given, seem superfluous to you? Is that what you are actually saying?

Mr. Yvan Roy: I'm not sure I understand you correctly, Mr. Turp. I'm sorry.

Mr. Daniel Turp: In your opinion, are the provisions of the proposed clause 10.1, which are designed to ensure that the person who is the subject of a request for extradition is informed of the content of the documents that relate to him or her, not necessary because these guarantees already exist in current law?

Mr. Yvan Roy: I believe that the clause 10.1 being proposed by Mr. Reynolds goes further than simply requiring that the agreement be disclosed. As Mr. Morrill attempted to demonstrate, these provisions require that we go behind the agreement and that, for example, we disclose the documentation necessary to give this person some background on the agreement.

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This certainly goes further than what is required now. Consequently, as government legal specialists, we cannot really support such a measure. If these provisions were limited to the agreement itself, in my humble opinion, they would be superfluous because they would duplicate what is already provided for by our rules of law.

Therefore, it comes down to this: either we go further than what is already there, and this poses a problem, in our opinion, or we repeat exactly what already exists and, as far as this goes, I don't think it's necessary. In fact, I think it would do more harm than good.

[English]

The Chair: Could we just stop for a minute here? We're now running up against timing problems, because the parliamentary secretary has to leave at 5.30 in order to do private members' business. I want to respect that and give her time to get over to the House.

I don't want to curtail discussion on this, and I don't see any reason to, but we need to find some other time to work with it. Right now we're looking at Monday afternoon to carry on. We have to look at Monday afternoon. We have witnesses coming long distances all next week for Bill C-57, the Nunavut bill.

Let's wrap this up. Do we have more comments? I'm going to give you the last word, John, because it's your motion.

Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I'm coming to this discussion late, I realize, but from what I can glean from your response to Mr. Turp, you're saying that subclause 10.(1) goes too far in disclosing the specific agreement, and particularly the background documentation in whatever context this agreement was made.

I keep in mind what you said about this being duplicitous or doubling up on a guarantee that's already there under the charter. Would you be satisfied if it simply guaranteed the disclosure of the specific agreement, so that it was confined to the context of the persons themselves? I realize what you said, that there is going to be disclosure of that earlier in another court proceeding, where they have to prove the document. But I think Mr. Lee's point is relevant. Not everybody who winds up in this position is necessarily going to be represented; and even if they are represented, this is a fairly complex piece of legislation and their lawyer may not be up on this.

Isn't it more important that the purpose of this be to ensure that they have full disclosure of the specific agreement that relates to them? If it was limited to that, would you have less concern?

The Chair: Just before you answer, Yvan, John Reynolds wants to piggyback on that comment.

Mr. John Reynolds: I'm thinking the same thing.

Since we're going to adjourn, you might just take this and come back to us. If we just eliminated everything after subclause 10.(3), eliminate the background information that you're saying is a concern, but everything on top of that...

I know you say that it's there, the documentation, but this says it in plain English. We have criminal trial lawyers saying they want that in there. I can understand, after listening to your debate, the concerns in the latter part on background information that may be confidential. If that would satisfy you, I think it might at least partially satisfy everybody else.

The Chair: We're having a softening effect on Mr. MacKay, who's suddenly worried about the accused.

Mr. Peter MacKay: You would know, Madam Chair, as a crown who had to go through the Stinchcombe era, that this is going to happen anyway. They're going to make demands for this, and it's going to happen.

The Chair: Ms. Bakopanos is indicating they're going to study it, and I think that's the spirit in which we want it studied, because we're worried about disclosure and the rights of the accused to full answer and defence to prepare.

Now, folks, Monday afternoon, following question period, we're back here, and we're going to try to get this done.

Ms. Eleni Bakopanos: Since I think we had agreement earlier from Mr. Reynolds and from the rest to take care of those clauses that dealt with the minister, can we take care of them, or is it too late to do that?

The Chair: No. Have you got time?

Ms. Eleni Bakopanos: I think we can go pretty quickly on that, since we have agreed that we can't accept them in any case, the ones that deal with ministerial discretion. That way it will make our work on Monday easier, if everybody's in agreement.

The Chair: Reform motion... What number are we at here?

Ms. Eleni Bakopanos: We were going to go to clause 13, if I understood properly.

The Chair: It's 5, 7, 16, 18, and 23.

Ms. Eleni Bakopanos: That's right.

Mr. John Reynolds: Five is not one of them.

Ms. Eleni Bakopanos: Fine.

The Chair: Okay, so 7, 16, 18, and 23.

Mr. John Reynolds: Yes, 7, 16, 18, 23.

The Chair: Are we agreed that they're defeated?

Mr. John Reynolds: Yes, that's fine, and for the same reasons as 4.

Ms. Eleni Bakopanos: And also the ones that dealt with...

Mr. John Reynolds: And 8, 17, 20, 21, 25, 27, and 28.

Ms. Eleni Bakopanos: That's right.

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The Chair: They're defeated?

Mr. John Reynolds: And for the same reasons as for 4.

The Chair: All right.

Ms. Eleni Bakopanos: Thank you.

The Chair: So Reform motions 7, 16, 18, 23, 8, 17, 20, 21, 25, 27, and 28 are defeated.

John, thank you.

Can I just give you folks something to think about over the weekend? I have here a document that sets out all the private members' business that is before the House. Among the private members' bills that are now in the order of precedence, 46% of those bills, if they pass, will come to this committee. Of the other bills that have been tabled but are not in the order of precedence, 31%, if they pass, will come to our committee. I would like you all to think about that over the weekend.

Thank you.

We're adjourned.