Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 61 - Evidence
OTTAWA, Thursday, March 11, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-40, an act respecting extradition, to amend the Canada Evidence Act, the Criminal Code, the Immigration Act and the Mutual Legal Assistance in Criminal Matters Act and to amend and repeal other Acts in consequence, met this day at 10:54 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum so I will call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order.
I wish to welcome you all, including our television audience, to Room 257 in the East Block.
We are fortunate to be able to meet in such a beautiful room to hear the views of Canadians on the proposed legislation before this committee. This room was established especially for the G-7 economic summit held here in July 1981. It was decided that the room would be preserved as a record of that historic event, in commemoration of which it was given the title of Summit Room.
Today, we continue our consideration of Bill C-40, respecting extradition. The bill aims to create a comprehensive scheme consistent with modern legal principles and recent international developments in the field of extradition. This bill was passed by the House of Commons on December 1, 1998, and was given first reading in the Senate the next day. The bill was given second reading on December 10, 1998 in the Senate, which means that the Senate has approved this bill in principle. Bill C-40 was then referred to this committee for detailed consideration.
That consideration began yesterday with the appearance of government officials. Today, we will hear from Amnesty International. We look forward to their opening statement, which will be followed by a question and answer period.
There will be a meeting of this committee next Wednesday when we will hear (null)from Professor Anne La Forest of the University of New Brunswick, and the Criminal Lawyers Association of Ontario. They will be followed by the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada.
Once the committee has heard those witnesses, there will be clause-by-clause consideration of the bill, at which time the committee will decide whether to pass the bill as is, recommend amendments, or recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
Our witnesses today, from Amnesty International, are Roger Clark, secretary general, and David Matas, legal network coordinator.
Please proceed.
Mr. Roger Clark, Secretary General, Amnesty International: Thank you, Madam Chair and honourable senators, for this opportunity to return to a matter which is of some importance to us. I propose to make an initial presentation of approximately 10 minutes. I will then pass the microphone to my colleague, David Matas, who will speak on some specific points relating to the proposed legislation.
I have left with the clerk of the committee an Amnesty International document which goes back to November 1997. It is entitled, "The International Criminal Court: Making the right choices -- Part III: Ensuring effective state cooperation." I cannot do justice to this subject in 10 minutes, or even an hour, but this document explains some of the reasons for our concerns with Bill C-40 in its present form.
The Chairman: For the benefit of members of the committee, we have three copies of this report available for perusal.
Mr. Clark: I met with Foreign Affairs and Justice officials on February 10 to discuss the preparatory process for ratification of the International Criminal Court as well as to discuss some of the concerns that we are raising with you today. It is clear that there will be, over the coming months, an intensive review of all pertinent legislation prior to the ultimate ratification of the Rome Statute of the International Criminal Court, on which Canada needs to move very quickly and show an international example, having led already in the creation of that court.
We believe that it is still possible to move in the right direction and make some amendments to Bill C-40 along the lines that we will be suggesting to you as we address some of our concerns.
We appeared before the House of Commons committee last November and raised some of the same issues at that time.
My comments fall into three categories. The first looks at some of the provisions of the Rome Statute creating the International Criminal Court, inasmuch as some of the elements of that statute have a bearing on national legislation.
The first point is one of definition and distinction. This is covered in article 102 of the Rome Statute. It addresses the definition of, and the distinction between, surrender and extradition. This is more than simply words. It is the distinction that the court believes to be extremely important. To refresh your memories on that, the Rome Statute defines "surrender" as the delivering up of a person by the state to the court. Surrender is directly from a state to the court. Extradition, on the other hand, means the delivering up of a person by one state to another as provided by treaty, convention or national legislation.
The same point is made where competing requests may be made to a state, in which case the state shall determine whether to surrender the person to the court or to extradite the person to the requesting state. That is in article 90 of the Rome Statute. Again, a clear distinction is being made. I believe this underpins a large part of what we are saying to you today.
David Matas was part of the Canadian delegation to Rome, so he can answer some of the specific questions that you may have in that regard. The understanding there was that surrender to the court would be less onerous than under national law. That is key to the element upon which we are asking your committee to reflect. How is it possible to make the extradition law less onerous with regard to surrender to the International Criminal Court?
The second set of comments is drawn from the establishment of the international tribunal for the former Yugoslavia. That tribunal was a landmark in setting standards of international law for dealing with major violations, crimes against humanity, genocide and war crimes, and we have two points in regard to the guidelines and the rules of procedure. First, state cooperation shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness. In other words, it is clear that behind that point is the notion that there be facility and not impediment. The sixth guideline is even more specific. It provides that the relevant state court shall approve the transfer of an arrested accused to the custody of the international tribunal without resort to extradition.
In regard to Bill C-40, more specifically, our first point is that there is nothing currently in the proposed legislation that makes the clear distinction that we believe is required both under international principle and practice. Therefore, our first request is that a means be found, through additional language and subsclauses, to ensure that there is recognition of the dual process.
The second point is one of definition. Currently, in Bill C-40, an international criminal court or tribunal is described as an extradition partner. Again, the language is important. An extradition partner is one with which Canada is party to an extradition agreement and with which Canada has entered into a specific agreement, or whose name appears in the schedule.
The last point affects both the international tribunals for former Yugoslavia and Rwanda. The catch there is how and at what point the International Criminal Court might be formally added to that schedule. Or is that the right way to go? Is it possible to strengthen the legislation without simply adding to the schedule through a different process at a later stage?
Clearly, there are no agreements in place between Canada and the international tribunals, and much less so between Canada and the International Criminal Court. However, Canada's responsibility in this matter is implicit, having been party to the establishment of those same tribunals. Again, the practice of maximum cooperation with the least impediment should apply. The question of jurisdiction between the courts should not be a major problem.
The absence of such agreements raises the potential for legal impediments in the process of surrender to the International Criminal Court. In other words, lawyers could challenge the legality of the process if there were no formal agreement. It is our submission that the Rome Statute, and Canada's signature to and ultimate ratification thereof, would not constitute an extradition agreement.
The third point raises the issue of ministerial discretion. Clause 47 of the bill refers to the minister as having the discretion to refuse an extradition under certain circumstances. The minister may refuse. Again, without entering into a detailed analysis of the circumstances under which that discretion may be applied, it is our submission that the room already created by that discretionary word "may" allows for challenge to, and ultimately, a possible breach of our obligations under the Rome Statute.
We certainly do not argue against the provisions in the bill with regard to what is required where extradition is at issue between states. Whether it be ministerial powers, appeal processes, judicial review provisions, all of these are appropriate and good. They are much less appropriate for the International Criminal Court, and in our view they do not respect the spirit of the Rome Statute.
Lastly, we submit that we need to be thinking about the Canadian example. In other words, Canada, having shown extraordinary leadership in bringing about the creation of the International Criminal Court, now has the obligation to think more carefully about the implications of the Rome Statute. Not only must we find ways to relate to the court in an effective manner, but we must demonstrate, through appropriate language, respect for that process. We must ensure that the court is given the importance that we believe a major step forward in international law should be accorded.
We are saying that the distinction between surrender and extradition should be entrenched in Bill C-40 as a separate subclause, with the appropriate wording, including the provision for an expedited process of judicial hearing and appeal, and with limited grounds for ministerial refusal.
At this point, we are not suggesting specific wording. However, Amnesty International has a considerable amount of available expertise. We would be happy to enter into whatever discussions are appropriate in order to find the right language and provisions in law to achieve the purpose.
In conclusion, the recent events around the Pinochet case in Britain, although not immediately relevant to the International Criminal Court, demonstrate the complexities and pitfalls around the process of international surrender and extradition.
We believe that the creation of the International Criminal Court has established a new relationship between states and the ICC that is different from the traditional one. We believe that it requires new concepts, approaches, and language. Anything less than that is to allow the ICC to come into being with business as usual. What we are looking for are clear signals from Canada that the International Criminal Court, and the procedures it establishes, are of enormous significance in the struggle against impunity.
Mr. David Matas, Legal Network Coordinator, Amnesty International: I want to elaborate on the distinction between extradition and surrender and why it is important for Amnesty International. Before I do that, I wish to mention two unrelated points that are of concern to Amnesty International in Bill C-40.
The first is in regards to the death penalty. The bill provides in clause 44(2) that the minister may refuse to make a surrender if he is satisfied that the conduct in respect of which the request for extradition is made is punishable by death. It is our position that Canada should not, under any circumstances, surrender a person to a jurisdiction where that person faces the death penalty. That should be in the law.
There is a case before the Supreme Court of Canada right now, to be heard March 22, where we are arguing that position as a Charter matter, that the Charter requires that. Our extradition treaties, as a matter of form, include a clause that states Canada can insist that the death penalty be neither sought nor imposed as a condition for granting extradition. Sometimes we invoke those clauses and sometimes we do not. It is our legal position that under the Charter of Rights and Freedoms, those clauses should be invoked. It is also our position that that type of procedure should be embedded in the law, so that these clauses are required to be invoked in every case where the death penalty could be sought or imposed.
The second unrelated concern has to do with refugee protection. Bill C-40 basically extracts people from the refugee procedure at the minister's say so. There is no independent refugee determination if the minister decides that the person should be extradited. We oppose that provision. The refugee determination system is there to offer protection. It does have exemptions, which take into account the extradition regime, under article 1(f)(b) and 1(f)(c) of the refugee convention. These are incorporated into the Immigration Act, so that if a person were allowed to make a refugee claim, the type of exemptions that apply in refugee determination and would be relevant to extradition proceedings, could take effect. The advantage is that we would have an independent, quasi-judicial determination instead of just the ministerial say so.
According to Bill C-40, the minister does not need to determine that the refugee convention exemptions apply. The minister only has to be satisfied that they apply. It is a matter of discretion instead of a matter of law, an we view that with concern.
In terms of refugee determination, clause 96, at the end of the bill, amends section 69.1 of the Immigration Act. The introduction of subclause 14 says that if a person is ordered to be surrendered under the Extradition Act, then the order of surrender is deemed to be a decision by the refugee division that the person is not a convention refugee. This is perhaps an incidental remark, but it indicates how oblivious the drafters were to the war criminal dimension, because 1(f)(b) deals with serious non-political crime outside the country. It is 1(f)(k) that deals with war crimes and crimes against humanity. They did not have that in mind. It is relevant for extradition, but it should be, in my view, determined. You must also look at clause 44(1)(b) of the bill, which substitutes the minister's determination for the refugee division's determination. Clause 44(1)(b) states:
The Minister shall refuse to make a surrender order if the Minister is satisfied that
(b) the request for extradition...
The clause takes it out of the refugee division and puts it into the hands of the minister. The minister does not need to make the actual determination. The form of the determination is different from the refugee convention and is not a proper legal regime. It seems very strange that, in my view, what they are doing through the Extradition Act is violating the refugee convention. It seems that in order to comply with one international regime, the drafters would put us in violation of another. All of the international regimes should be respected.
The main point we are trying to make here is about the difference between surrender and extradition. In some ways, the timing of Bill C-40 is very fortunate, but in other ways, unfortunate. It is fortunate in that it allows us to introduce legislation that brings us into compliance with the Treaty of Rome.
The reality is that the bill was drafted and presented before the Treaty of Rome was concluded. The government's position is that they will introduce legislation later to deal with the obligations flowing from that treaty. However, it is our submission that that is not appropriate. Now is the time to do it. It does not make sense to get things wrong now and try to put them right later. It is not that complicated. I should say that even without the Treaty of Rome, there is a problem with this bill because of the way it treats the tribunal for Rwanda and the tribunal for the former Yugoslavia. As you can see, in this bill they are just entities designated in the schedule as extradition parties. That is inappropriate for those tribunals because they make the distinction between extradition and surrender.
With Bill C-40, we would be setting a bad example. One of the differences between surrender and extradition is that with surrender to the international tribunals, it is they, according to the treaty, that are supposed to decide on the applicability of the exemptions. But according to this bill, it is always the minister who decides on that applicability. In Canada's case, one would hope the minister would decide properly and decide on judicial review, but we are dealing with something that is potentially an example to the rest of the world. We are asking every country that ratifies these treaties to do the same thing. If we are saying to the rest of the world that it is all right for the government to decide, and it is not up to the international tribunals, we are opening up the whole international legal regime to abuse. We would not want that.
This is a very crucial time, not just for Canada, but for the whole world. For the Treaty of Rome to come into effect, 60 states must ratify. There are now over 70 signing states, including Canada. The first state, Senegal, has ratified and other ratifications are starting to come. Legislation will be enacted in all these countries between signature and ratification. Every country is looking around at other countries to see what is going on. The 70 plus countries that are in the process of getting their act together will be looking to Canada. Now is the time to be setting an example, and certainly not a bad example.
There are many ways the minister can intervene in the proceedings, which might be appropriate for extradition, but not for surrender. For instance, Bill C-40 states that the minister can refuse extradition on the basis that the requesting entity does not have jurisdiction over the territory in which the crime was committed.
The International Criminal Court has jurisdiction based on more than just territory. It has jurisdiction based on a request by the United Nations Security Council. It has jurisdiction based on the nationality of the accused. The bill allows the minister to refuse extradition to an international tribunal and that would be in direct violation of the commitment of the tribunal.
I can give a number of other technical examples, which are in a written paper that has been made available to the committee.
Perhaps the biggest problem with Bill C-40 as it now stands is the rule of double criminality. In order to extradite a person to a foreign entity, the alleged act must be criminal in Canada and it must be criminal abroad. That is proper in terms of extradition to a foreign state, but it is not proper in terms of extradition to an international tribunal dealing with war crimes, crimes against humanity, and genocide.
Double criminality is not just a theoretical problem in the sense that things could go wrong or that we would be setting a bad example. It is very real problem. If this bill were enacted now, with the rule of double criminality, no person could be extradited to an international tribunal for war crimes or crimes against humanity because of the decision of the Supreme Court of Canada in the Finta case. That case set up a very high standard for prosecuting war criminals and criminals against humanity. It has a different standard for mental intent and a different definition of superior orders than exist in the international tribunals. It has a different definition of mistake of fact from the international tribunals. It sets up a defence of "honestly believed racial prejudice" that would try to show one did not have the proper intent for war crimes or crimes against humanity. That is what the Finta case decided. It means that all, or virtually all, war criminals could use that defence to avoid extradition to an international tribunal.
Canada stopped prosecuting international criminals here because of the Finta decision and moved to revocation of citizenship and deportation. That was the lesson that the Canadian government learned from the Finta case, but it seems that it was forgotten when Bill C-40 was drafted. The drafters are setting up the same problem all over again.
I appreciate that the government has legislation in the works that would propose overcoming the Finta decision by amending the Criminal Code. However, I submit that it does not make much sense to create this problem, even temporarily, by legislating Bill C-40 and allowing people to raise Finta-like defences in extradition proceedings to international tribunals until such time as the Criminal Code is amended.
That is a brief, introductory run-through of some of our concerns. We will be pleased to answer any questions you may have.
Senator Beaudoin: You want a different clause for extradition as opposed to surrender. If I understand your argument, this is because the Treaty of Rome is relatively recent. I gather that Bill C-40, in your opinion, does not take care of this situation. In other words, we are in a hurry, but we should try to rectify the problem now and not wait for another bill. That is an interesting point of view.
You are strongly in favour, I am sure, of the international courts and penal courts. What do you not agree with in this bill on the distinction between the two? We may have two or three ideas in the same clause. However, what is the exact substance of the amendment you have in mind? Is it just meant to separate the two definitions, or is it much more substantial than that?
Mr. Matas: There would be two definitions, but also two different regimes. For extradition, one would go through the regime in the bill, subject to the changes on refugees and the death penalty.
Senator Beaudoin: You do not have a problem with that.
Mr. Matas: There is no problem with the regime in the bill, except with respect to the death penalty and refugees.
With respect to surrender, we would like to have a much different regime, where we would not go through the same checklist. There would not be a double criminality test or a specialty test.
Obviously, there would need to be a test to see if an individual had been previously convicted. However, that would be for the tribunal to determine, not the minister.
There would need to be a test of the adequacy of the proceedings. We do not have in the current extradition regime -- which I suppose is appropriate -- an independent determination of the adequacy of the proceedings in Canada. It is assumed that they are adequate. The international tribunals say that they can step in if the proceedings are inadequate. They decide, and we need such a test. It is a different set of criteria for surrender than for extradition.
Senator Beaudoin: They are substantially different, then.
Mr. Matas: Yes, they are substantially different.
Senator Beaudoin: Yesterday, we discussed for at least 30 minutes the question of the death penalty. It was pointed out that we never know whether a person extradited to the United States, for example, will be executed or not. However, do we need to take that chance? If the person may face the death penalty, we should say no?
Mr. Matas: That is not the position. Our extradition treaty with the United States provides that we have the right to request that the death penalty be neither sought nor imposed, as a condition for requesting extradition. That is part of the model extradition treaties signed by states around the world.
Every time Canada has made that request to the United States in the past, the United States has acceded. In order to get this person, they accede to the request not to seek the death penalty.
Senator Beaudoin: That is no problem.
Mr. Matas: That is my view. Historically, it has not been a problem. We do not keep the person here and the person does not get off. All we do is make the request. We are saying that the bill should require the government to make the request that all the treaties allow the government to make.
Mr. Clark: The discretion given to the minister to seek assurances that the death penalty will not be applied seems to be no longer appropriate, given that since last December, Canada no longer has the death penalty in any form at all. Canada is now in a position to join states such as Italy, which will automatically refuse extradition to a situation where the death penalty is likely. It is no longer a question of seeking assurances.
Senator Beaudoin: How can they make assurances, because the last word may be with the Supreme Court?
Mr. Matas: The first word is with the prosecutor. If the prosecutor does not seek the death penalty, it will never be imposed.
Senator Bryden: The Treaty of Rome has been signed by 70 countries.
Mr. Matas: Seventy-two, I believe.
Senator Bryden: It will only become an effective international document when it has been ratified by 60 states.
Was it signed two years ago?
Mr. Matas: This July, actually.
Mr. Clark: July 17, 1998 was the exact date.
Mr. Matas: It had 72 signatures quite quickly. There was a great deal of momentum behind this accord.
Senator Bryden: Since then, one state has ratified?
Mr. Clark: Senegal has ratified.
Senator Bryden: When is it anticipated that 60 states will have ratified the treaty?
Mr. Matas: You tell me when it is anticipated Canada will ratify the treaty.
Senator Bryden: I am asking a serious question. Are we talking two years, five years, 10 years?
Mr. Clark: Two years would be a minimum. I cannot see, even with much goodwill, that we could achieve that. It was hoped that this would be in place by December 2000, but that is unrealistic, in my view. We are looking at perhaps five years, and it could be even longer, depending on some states. Our neighbour to the south particularly has been opposed to many of the issues of the Rome Statute. Their role in either encouraging or dissuading states on moving forward with ratification is crucial. I anticipate a fairly long process of perhaps five years.
Senator Andreychuk: We were not able to achieve a time limit for ratification. It is only political will that will get us there, as opposed to some other accords, which include a time limit after which the deal is dead.
Senator Bryden: You take the position that Canada, because it took a lead in this, should anticipate this international treaty becoming effective in the next 10 years, and so should draft legislation in a manner that would be in compliance with a treaty which may or may not become effective.
Work on this bill, I take it, has been ongoing for a considerable period of time. Is it your position that Canada, or any state, should put on hold its domestic legal amendment and development whenever there is a possibility that an international agreement may come into effect?
Mr. Clark: I would turn that around and say that, first of all, the principles here are already well established. The existence of the two international tribunals speaks to the same principle. They are embedded in the Treaty of Rome and will not disappear. Hesitating to align legislation, when we have the opportunity to do it, with the provisions of the Rome Statute is saying in effect that we will hold back and see whether or not it comes into law.
I would turn the argument around and say that Canada, by moving in this direction -- which is not a controversial action -- is in fact showing leadership and trust in that international process. That is a fundamental point here.
Senator Bryden: There seems to be some controversy in the United States.
Mr. Matas: We do not need to change our law once the statute comes into effect. We need to change our law in order to ratify the statute. We cannot ratify the statute unless we are in a position to comply with it. With this bill, we cannot comply. We need subsequent legislation in order to ratify the statute. We want to be in a position to ratify as soon as possible, and by waiting for subsequent legislation on extradition, we could put ourselves years behind in the process.
We are not suggesting Bill C-40 be delayed or put aside. We are suggesting it be amended by the Senate now, but proceed at the same pace that it would have otherwise. As my colleague mentioned, we also need to do this because of existing treaties with the Rwanda statute and former Yugoslavia. It is not just for potential future statutes.
We must also keep in mind that 72 other countries are in the process of getting their legislation in shape so they can ratify. They are looking to see what Canada will do. If we are doing the wrong thing, there is potential that they will as well.
Senator Bryden: I understand the good model and the good world citizen aspect. Apart from the Treaty of Rome, are you saying a person could not be extradited or, to use your word, surrendered under this bill to one of the two tribunals that are currently functioning?
Mr. Matas: I am concerned that although the request could be made and we could start proceedings, because of the double criminality rule and the Finta case, the accused could use defences that would prevent them ever actually getting over there. That is the problem.
Senator Bryden: One of our first obligations is to uphold our own Constitution and our own Charter of Rights and Freedoms for citizens and people who are in Canada. It would seem to me that any of the defences that are available here come from either the Charter or the judgment of our Supreme Court -- not an international court but our Supreme Court.
Would it not be the case that until that Supreme Court decision is affected by legislation of this Parliament, which I understand may occur, we would continue to err, if we err, on the side of ensuring that persons who may very well be Canadian citizens at this stage have full access to the protections of the Charter of Rights and Freedoms and the courts?
Mr. Matas: There is no conflict, the way I see it, between international human rights standards and the Canadian Charter of Rights and Freedoms. They are basically the same standards. Canada uses international jurisprudence to interpret the Charter. The Finta case was not an application of the Charter; but an interpretation of the Criminal Code. Obviously, if it were an interpretation of the Charter, there would be nothing Parliament could do about it, because the Charter reigns supreme over Parliament.
Senator Bryden: I do not agree with that. It reigns supreme over Parliament but that does not mean there is nothing Parliament can do. We can do things that will come within the Charter.
Mr. Matas: We are not respecting human rights by somehow preventing international mass murderers from being brought to justice before international tribunals. That is a violation of human rights and a violation of Charter standards.
Senator Bryden: Under our laws, as I understand them, these are not mass murderers until it is proven that they are.
Mr. Matas: When you set up an international regime, it is for the international tribunal to conduct a trial. For Rwanda and Yugoslavia, we signed treaties agreeing to hand over the accused if requested. It is a direct violation of the treaty to refuse to surrender a person who may be guilty in a fair trial under the tribunal, but who, because of our own peculiarities in criminal law, may be let off if tried here.
Senator Bryden: I am concerned that as we move into one world court which governs our lives in many areas, there is a possibility of abuse of that system as well. As a Canadian citizen, I would like to believe that I have all of the rights that are provided for by our Charter and by our system of justice. Before I am delivered up to be handled there, I should have the opportunity to say that I am not the person they seek. They may think I am the person; they may have pictures, whatever. It is the old writ of habeas corpus. I have a right to the defences that are available to me under our Charter and under our system of laws.
Mr. Matas: We are not suggesting that the Charter should be amended. The Charter would remain and all the Charter defences would be available. The international court does not govern many areas of our lives.
Senator Bryden: Did you not say that in clause 44(1) there is a recitation which states that:
The Minister shall refuse to make a surrender order if the Minister is satisfied that
(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...
That is the recitation of the Charter. Are you saying that the minister should not have that discretion?
Mr. Matas: We are saying that that power should exist, but as a matter of law, not discretion. It should exist in the Refugee Division of the Immigration and Refugee Board.
Senator Bryden: You are saying it should be mandatory.
Mr. Matas: Yes, according to the refugee convention.
The Chairman: Under clause 44(1) it is mandatory; under clause 44(2), the minister may refuse.
Mr. Matas: It is not mandatory because there is the phrase "The Minister shall refuse...if the minister is satisfied that..." All we are looking for in clause 44(1) is the minister's satisfaction, not the actual requirement that the substantive provisions be complied with.
If you look at the Immigration Act, once someone has refugee protection, they cannot be returned, period. It is not whether the minister or the refugee division is satisfied. It becomes a legal determination. The test is one of correctness right now, according to the law.
Senator Beaudoin: There is no discretion, then.
Mr. Matas: There is no discretion, but this proposed legislation involves discretion.
Senator Bryden: Rather than tearing clause 44 apart, an amendment could state that, "The minister shall refuse to make a surrender order under surrender (a) and (b)."
Mr. Matas: The problem is clause 96.(14), which amends section 69.1 of the act by adding subclause (14). Subclause (14) takes the issue out of the hands of the refugee division and clause 44 puts it into the hands of the minister. We are saying, "Get the minister out of this and leave it where it was originally."
Senator Pearson: I am following up on Senator Bryden's question. We are faced with a couple of issues. Except for Senator Andreychuk and yourselves, no one in this room has made a deep study of the Statute of Rome. We are not entirely sure what kinds of things have been built into that treaty that might be problematic for us. We are looking at a bill here in consequence of something that we have never studied. I have some concerns about that, because the last time I looked at it, there were some things about the Young Offenders Act with which I was not entirely comfortable. I do not know how they were dealt with, but there were some implications that a 17-year-old who had been the leader of a group that had massacred others might be held just as responsible as the 18- or 19-year-old. That was the last time I looked at that issue. If that is the case, then that would be in contradiction to our own youth justice system. The issue may have been fixed. However, unless we have had the opportunity to study that, I do not see how we can actually hold off so much on this.
The second issue was on the question of ratification of treaties. Having been very deeply involved in the ratification of the UN Convention on the Rights of the Child, I know Canada never ratifies immediately, particularly when dealing with criminal law, because one must deal with the provinces. We cannot set examples and we must explain why we cannot. It does not work unless you have the provinces on board.
Senator Andreychuk: I have a slight clarification. My reading of the Treaty of Rome is that it set out the principles and parameters of a court, but we are now entering phase two, where we will develop the court structures and administration.
I am a bit confused because you are saying that we should follow the same spirit. We cannot actually talk about how that court will function because we do not know that yet. I will be working on some committees that will make recommendations on the administration, the function and the operation of the courts. The two tribunals are doing that, but not the international court.
Mr. Matas: Obviously, if this bill were to be amended the way we propose, you could not right now add, as an entity at the end, the court, because it does not exist. All you could do is set up a regime that would apply to the two tribunals that do exist and then add the Treaty of Rome when it comes into force.
The other two tribunals exist now. This is not a hypothetical, future possibility. We will be in violation of those two treaties, which we have not only signed by ratified, if we enact this legislation. If, for whatever reason, at some point in the future, the criminal court that comes into being is problematic for the people around this table, or Canada as a whole, that tribunal does not need to be added. There is no reason why we should set up a legal regime here that puts us at a disadvantage because it is unresponsive, unable to comply, and oblivious to what is going on in the world.
Mr. Clark: There are problems with the Statute of Rome and Amnesty International pointed those out the day it was adopted. However, what is there is a set of fairly high principles and standards which will not change now. We are suggesting that Canada should put itself in a position to be able to relate to and uphold those same standards.
Sure, there will be other problems. The problem of ratification, to which Senator Pearson referred, is one that we struggled with on the convention against torture for exactly that same reason. It took two years for the provinces to come onside. The Convention on the Rights of the Child was one of the exceptions to the usual speed with which some of these things move.
Senator Pearson: That was not done until the end of 1991, two years from the time it was first introduced.
The Chairman: In order to clarify Senator Pearson's concern, I point out that this bill enables the minister to add to it. When the Treaty of Rome is ratified by Canada, the minister will be able to add it without coming back to Parliament again. Your basic point is that there should be two regimes, not one.
Senator Grafstein: I believe that what you are proposing and what we heard from the witnesses on behalf of the government yesterday are quite materially different. Let me see if I can sum up their position and get you to respond to the issue of a two-track system, because that is what you are suggesting.
That has a certain siren appeal, and I might be convinced of its wisdom, but I wish to test the thesis in a moment. Before doing that, I want to understand your position with respect to the status of the Statute of Rome.
Are you saying that we have not conformed to the existing international treaties?
Mr. Clark: That is right.
Senator Grafstein: With respect to the Treaty of Rome, you are suggesting that the same principles of non-conformance to existing treaties would most likely apply to the Treaty of Rome, as and when we ratify. That is to say, this is not a prior ratification.
This is, in effect, conforming to existing law, and you are assuming the same standards will apply to the two-track system, if you will, as and when it applies. We heard yesterday from the witnesses that their intention was, once there was ratification, to come back and review this bill, among others. Are you saying that really there is not an inconsistency between the two positions?
Mr. Matas: It is a matter of timing more than anything else.
Senator Grafstein: Let me test the two-track system. As I say, it has an appeal for me but there remain some questions in my mind.
Let me use the example of Pinochet. We are saying that if you are subject to an international criminal court, you should be treated more expeditiously than if you are subject to a court of another state. The public policy rationale for that is that there is a higher order of public concern and moral importance related to international crimes than to domestic crimes.
Mr. Matas: Also a higher level of confidence, because we were one of the authors of these international tribunals. A foreign state's tribunal is its own creation. That is why we set up the protections in Canada. However, with all the international treaties, we were present with our negotiating positions, and we got more or less what we wanted because we signed, and in the case of the two international treaties, we ratified. This is not just someone else's creation. This is partly ours.
Senator Grafstein: Let me come back to the test of the theory for a moment. We have a fast track for crimes of international magnitude as opposed to domestic ones. Take the Pinochet case. Difficult cases sometimes lead to bad law and sometimes to good law. Pinochet is involved in an extradition matter, not to an international court, but in effect, to another state. Is there not a symmetrical difficulty in terms of promoting a two-track system for the international courts when crimes against humanity are part of the domestic legislation in many states and can be prosecuted in Canada, the United States, the U.K.? If they chose, they could seize jurisdiction, as I understand it, and in fact prosecute Pinochet if he fitted the crimes against humanity definition. I will not get into the particular definitions.
Now we have a situation where we have a fast track in Canada. However, let us say Pinochet redux shows up in Canada. In fact, he would have the slower track, even though he is an alleged international criminal, because he is not being tracked to the international court. Does that not bring the system of justice into some disrepute if we are treating people accused of the same crime differently by virtue of the place where we are sending them for adjudication?
Mr. Matas: I believe you must look at the difference of place. An international tribunal is a different entity from a national tribunal, and it is not just a different place. It has higher status and agreed standards. It is not as if we are shortcutting the issues. We are saying the tribunal will decide those issues instead. It is not that they will never be decided. We have said, "We will leave it up to you to decide." Then the question is: Does that make sense as a matter of policy? I would submit it does because we wish to give a higher status to international tribunals. We wish to encourage their creation and their use. The reason for that is, when your dealing with international crime, the crime is against all humanity.
The trouble with sending Pinochet to Spain or Holland, which has also made an extradition request, is that those requests arise as a result of crimes against their nationals. What Pinochet, or Pinochet redux, has done is not just a crime against Spain or Holland; it is a crime against all humanity, and we get that message across more clearly and more dramatically to the whole world by sending the person to an international tribunal. We are giving a higher status to an international tribunal than to a national one.
Senator Grafstein: In the Pinochet case, international courts have not seized jurisdiction, have they?
Mr. Matas: No, but you are hypothesizing a situation. The reason they have not is because the case does not apply to Rwanda or former Yugoslavia, and those are the only international tribunals currently in existence. When the International Criminal Court comes into being, it will only deal with future and not past crimes. It could deal with a future Pinochet; it could never deal with Mr. Augusto Pinochet.
Mr. Clark: The International Criminal Court will only deal with individuals of some significance. It will never deal with a large number of cases. Your question does raise the issue of the willingness of states to prosecute when individuals find themselves on their own territory. There has been some reluctance to do that, but a little bit of movement in that direction has occurred. The point that Mr. Matas was making is that we are acknowledging the severity and the gravity of those particular instances.
One of the benefits of, and even one of the intentions behind, the Statute of Rome is to ensure that states do address their own legislation and make it possible for them to take on their responsibilities with regard to international law. In the long term, I suspect that that may in fact be a much more positive benefit than the court itself.
Senator Grafstein: I wish to pursue some other issues.
One that you have raised again is that of appeal. You have referred us to clause 44(2), which states:
The Minister may refuse to make a surrender order if the Minister 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.
You are saying that, rather than being discretionary, it should be mandatory.
Mr. Matas: Yes.
Senator Grafstein: It has great appeal, but I wish to test that theory.
The minister must make a very difficult decision when it relates to that provision, because as other senators have said, it is not clear whether the person being extradited, though possibly subject to the death penalty, may in fact be acquitted, or found guilty of a crime to which the death penalty does not apply. For instance, in some jurisdictions, there are still death penalties for very high crimes, treason or whatever. Again, lesser crimes may be exempt, and some are free of the death penalty. There are all kinds of gradations in various jurisdictions.
How does the minister satisfy himself if we take away his discretion completely by coming to some sort of determination? It sounds nice and it appeals to me, but when I think it through, I wonder if, by making it mandatory, are we, in effect, allowing the minister to get away with murder. Why? Because the minister does not need to think about it or exercise discretion or look at judicial facts or make a prejudgment. We are, in effect, allowing the minister to be irresponsible as opposed to being accountable to our domestic regime.
Do you follow my dilemma on this? Again, it is appealing, but when you cut through it, it may be counterproductive, in terms of our public policy, that this person should not be tried in the appropriate jurisdiction because there is a possibility -- not a high probability but a possibility -- that the death penalty may apply.
Mr. Matas: The death penalty does not apply unless it is requested by the prosecution. Our extradition treaties state that we can request the state that asks us for the person not to seek the death penalty.
The Chairman: In some cases, in some countries, the death penalty is mandatory, is it not?
Mr. Matas: It depends upon the level of the charge.
Senator Grafstein: We are talking about variations among different states. We are trying to apply a general principle to states that have a mandatory penalty for high crimes and other penalties for lesser crimes. In the United States, for example, it is a patchwork of different variations. I take it you are saying that if a murder charge is the subject matter of the extradition, then it should not be discretionary and that the minister should not, in effect, extradite.
Mr. Matas: If the death penalty is mandatory.
Senator Grafstein: If the death penalty in that state is mandatory, is that right?
Mr. Matas: Yes.
Senator Grafstein: That is a little more helpful, as opposed to a blanket prohibition on the minister in cases involving the death penalty.
Mr. Matas: I would go beyond that. It is not just where the death penalty is mandatory. Where the death penalty is discretionary, then the minister should ensure the prosecutor or the requesting state will not ask for the death penalty. If they refuse to accede to that request, then there could also be a refusal.
I should like to deal with this notion of getting away with murder. If you have an offence with a mandatory death penalty, then obviously the state can reduce the charge to one that does not involve the death penalty, after which the extradition could proceed.
Senator Grafstein: You have referred to clause 44(1), which states in part:
The Minister shall refuse to make a surrender order if the Minister is satisfied...
Subclause (b) is essentially a catalogue of Charter principles, is it not?
Mr. Matas: Yes.
Senator Grafstein: There are two things in there that bother me and I would like you to deal with them. This goes to the question of whether or not ministers have discretion to slow down the fast-tracking notion that you are proposing to us, on the issue of political opinion. In other words, the minister shall refuse to make a surrender order if the minister is satisfied that the request for extradition is made for the purpose of prosecuting for political opinion.
Is that not really broad and does it not give the minister very wide powers? How do you see that being exercised? It is a Charter notion. For example, consider the case of Pinochet. Let us assume for the moment that it goes to an international court as opposed to a domestic court, or even to another state. He will say, "This was my political opinion. I took these steps in defence of the state, to protect the sovereignty of the state against egregious attacks by people who were determined to undermine it. This is my political opinion."
Mr. Matas: The question then is: How do you determine that?
Senator Grafstein: We are giving ministers powers of refusal here. I do not quarrel with the political opinion provisions, but I wish to be fair as well to ensure that the minister has a discretion that is clear to him or her.
Mr. Matas: Presumably, this would be a delegated jurisdiction, and thus it would be a civil servant. This is not a trial. There may not be an interview. They may ask you to send in something in writing and then someone will look at it and that will be it. You will get an answer, yes or no, and there may not be reasons given. There is no right to counsel or to disclosure in the bill. There is nothing. It is like getting your driver's licence.
What we are saying is that this procedure should be judicialized, as it is now for refugee determination. At the moment, if you make a refugee claim, all these things are here, and then there are exceptions for war crimes, crimes against humanity, and serious non-political crimes. There is a whole jurisprudence about what a serious, non-political crime is.
In the example of Pinochet, what the courts have said is: Does the political dimension outweigh the criminal dimension? That is to say, is this a criminal act or an expression of political opinion? If many people are killed, normally the courts have said that this is basically a criminal act; the expression of political opinion is drowned or overweighed by the criminality. By taking it out of this judicial context and putting in the context of "the minister is satisfied," there is no scope for argument or for the building up of future jurisprudence. I accept the exception, but it should be placed in the context of being argued and decided legally.
Senator Grafstein: I come back to Senator Bryden's point. It is a question to which the government responded yesterday. The government took the position, based on two tracks, that in Canada we have worked very hard to establish a principle that each person shall be treated equally under the law. That is the principle and we accept it. What you are proposing is different treatment for different parties under the law.
We have heard the argument about two-tracking, but how do we resolve that systemic issue in terms of fairness and equity? It is appealing to accept the notion, and I was very much taken by this proposition yesterday. However, I am questioning myself now about whether or not we can leave, in the public's mind, the notion that Canadian citizens can be extradited under two sets of laws. The only differential between the two is the order of magnitude of the crime, something which is very valid, and the fact that it would go to an international tribunal as opposed to a sovereign state's proposition. I know that we can craft something legal under the Charter. I am not questioning the ability to draft differentiation. I accept that we can do that fairly. The question, however, is: How do we justify it in a public policy situation? Over and over again, we in the Senate say that everyone is equal under the law. It has become an architectonic of our society. How do we deal with this?
Mr. Matas: First, we are not necessarily talking about two different people, but potentially the same person under two different procedures. Second, equality deals with discrimination and not differentiation. The law is rife with differentiations. Legally, you are in a different position from me because you are a senator and I am not. I cannot complain of inequality in the law. The point is I am not discriminated against because you are a senator and I am not. The courts have dealt with this.
What we are talking about is difference in procedure and not difference in substance. If you go to different tribunals in different provinces, for instance, there are different courts of jurisdiction.
Senator Grafstein: Are you liking this to a summary conviction versus an indictable one?
Mr. Matas: That is another way of looking at it. The indictable procedure is more elaborate than the summary, and the accused cannot complain during the summary that he is discriminated against because his offence is less serious. You cannot say that people who are being surrendered to an international tribunal are part of a disadvantaged group, which is what you are dealing with under Charter equality, and that they are being discriminated against. Far from it. One can say right now that people who have committed the worst crimes against humanity have been able to get away with them most easily. It is easier now to bring a fugitive bank robber to justice than a fugitive mass murderer. We are trying to redress that imbalance by setting up an international tribunal which will take on these cases that domestic tribunals have refused.
Senator Joyal: I should like to return to the statement made previously, that if we pass this bill we are in violation of the international court in Rwanda and the former Yugoslavia. We must investigate the parameters of that statement. I do not want people to think we would pass something that would be in violation of two courts to which Canada has contributed, and has, in fact, initiated. Would you refine that statement?
As the chairperson said in opening our discussions today and yesterday, our role is to ensure that the legislation we adopt in Canada is in conformity with the Constitution and the Charter of Rights. I feel we must clarify that statement so people are not misled about the implications of the bill.
Mr. Matas: I gave some specific reference in the paper that I provided to the committee. Let me read you a paragraph from it:
The International Tribunal for the Former Yugoslavia Rules of Procedure and Evidence provides that the obligations regarding state cooperation laid down in the Statute of the Tribunal shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned. The Registrar of the Yugoslav Tribunal drafted tentative guidelines for national implementing legislation. One guideline provides that the relevant state court shall approve the transfer of an arrested accused to the custody of the International Tribunal without resort to extradition proceedings.
The rules of the tribunal for the former Yugoslavia and the guidelines of the registrar say exactly what we are saying. I do not see how we could be more specific or more clear than that.
Senator Joyal: Let me understand it. Those two international courts, because they are mentioned in the bill, are in the same position as a state requesting extradition.
Mr. Matas: Exactly.
Senator Joyal: I asked the Department of Justice yesterday about dual criminality. We were told that the bill provides, in clause 3(2), a much broader definition of crime related to certain conduct. That would give the court the capacity for a much more expeditious dealing with a request from the Canadian minister than before. In other words, there is an element of flexibility in the proposed legislation. That is a major difference from the regime that we had before and it would certainly allow a greater efficiency of the new system. How can we say that we are in violation specifically of those two courts?
Mr. Matas: As I read to you earlier, it says, "without resort to extradition proceedings." This is an extradition proceeding, so that is a direct conflict. As well, it says the tribunal shall prevail over any legal impediment which may exist under national law. Our national law does not say anything about a court prevailing. According to this bill, our courts prevail, not the international courts, so that is another direct conflict.
Senator Bryden: The two international courts that are currently functioning have a geographic application.
Mr. Matas: That is true. The former Yugoslavia tribunal is obviously for the former Yugoslavia, and the Rwanda tribunal is for Rwanda.
Senator Bryden: Could there be a situation where one of those courts would apply to Canada?
Mr. Matas: Of course. We are talking about fugitive offenders, not people who commit crimes on our soil.
Senator Joyal: Suppose that there is a Yugoslavian officer here, an ex army officer, and that the international Yugoslavian court is requesting that that person be transferred to them. You say that, according to the guidelines published by the registrar of the court, that person should be immediately transferred to the court, and according to this bill, that person would go through the extradition procedure. Did I state it correctly, or am I stretching it too far?
Mr. Matas: "Immediately" may be taking it a bit too far. I accept that a surrender regime is not just, "Here you are." A surrender regime must have some safeguards in place and the obvious one is identity. Is the person you are picking up the one that the tribunal has actually asked for? That must be determined here. Therefore there would be some procedures here, but they would be simplified. Many of the exceptions that would apply under extradition would not be there, while others would. There would be an initial determination here, but the final word would be with the tribunal and not with the Canadian courts.
Senator Joyal: Let us restrict ourselves to the two courts for the time being because they are the ones in operation and we must restrict our discussion in terms of immediate impact.
You say that we are not in conformity with those guidelines because a person would go through the extradition procedure, which is lengthier and has more safeguards and more opportunities for the person who is to be transferred to the court. Am I interpreting it correctly? The person might claim refugee status at the same time, for example.
Mr. Matas: Clause 44(2) is perhaps not the best example. I would say there are more opportunities for Canadians to say, "No, we will not hand you over," for instance, on the double criminality rule or the specialty rule or the jurisdictional rule or whatever. There are many arguments that can be made in Canadian extradition proceedings that, if they are successful, would put us in violation of the treaty.
Senator Joyal: When you appeared in front of the House of Commons committee, did you make that point?
Mr. Matas: With the House of Commons Justice Committee, we had the unfortunate circumstance of the chair having died very shortly after we made our submissions. It was a regrettable situation.
Senator Grafstein: Explain that to us. What happened?
Senator Joyal: I am sorry to pursue that. My point is, did you debate this important issue with the members in the other place when the bill was first introduced and debated?
Mr. Matas: Yes, I did. I spoke with the minister afterwards privately. She said that her officials were happy with the bill as it is.
As I understand it, it is basically as Senator Grafstein has said. The government wants to look at all the issues surrounding these international tribunals separately, at a later time, rather than do it now through this bill.
They do not necessarily reject our concerns, but they propose a different timing from the one we are proposing.
Our quarrel, as I understand it -- although it is really not for me to speak for them -- is more a question of timing and process rather than substance. Our position is that now is the time rather than waiting until later.
Senator Joyal: I do not wish to appear obstinate, but you did not debate that specific point with the members of the other place?
Mr. Matas: I would like to think that I made the point and they understood it. It is for them to say whether that is so or not.
Senator Joyal: There is a difference, Mr. Matas. I have known you for many years.
Mr. Matas: Decades.
Senator Joyal: You have appeared at and contributed to many discussions on the Charter, and certainly we are very grateful to you for that. Perhaps we are doing something in this bill that is clearly in violation of what Canada has ratified or is bound to at this point. It is different from what we could be bound to in the future. Senator Bryden made that distinction very well.
We are not speaking about a hypothetical court. We are speaking about two courts specifically mentioned in the annex of this bill.
We must understand this argument because it may become the law of the land. It will be binding on all those who could appear before those courts. Are we not abiding by our international responsibilities?
Mr. Matas: That is our position.
I do not say this just to flatter the senators. I do feel that this debate has been more profound, more perceptive, and more analytic than in the House of Commons. That is why we have the Senate as a chamber of sober second thought.
The Chairman: We may ask you to go out and say that publicly in the papers.
Senator Grafstein: He has said that on CPAC, and I hope the Canadian audience is listening.
Mr. Clark: At the moment, we are in a coincidence of history, in a sense, in that the bill is not in place. If it were, then Amnesty International would be working to make the corrections that we are now trying to introduce. It is not so much a question of disputing whether we are in contravention of our obligations. We feel that the letter of the law, as it stands now, puts us in a position of not fulfilling those obligations sufficiently. The question of example, then, becomes relevant.
It may well be that in technical terms, we would end up having to transfer a Yugoslav colonel to the international tribunal. It may be feasible to do that, but we are not saying it would happen. We are saying that the standards and the processes to achieve that are not the standards and processes that the framers of the Statute of Rome had in mind when they set this up.
Senator Joyal: Let us restrict ourselves, for the sake of the argument. Those two courts are well defined in the bill. Inasmuch as they are defined in the bill, we should try to abide by the guidelines of those courts. That is my understanding.
Mr. Clark: Until this bill becomes law, we could not transfer anyone to either of those tribunals under existing legislation. Already we are moving in the right direction. We are saying that we are not moving in exactly the right sort of direction.
Senator Joyal: Mr. Matas, you have written extensively on the issue, and you have studied it for many years. Are you satisfied that this bill is a major improvement over what currently exists? You state, in the premise of the document you circulated this morning, that only one war criminal has been extradited from Canada. Albert Rauca was extradited to West Germany in 1982. If this bill is implemented, will it be easier to seek to put war criminals in front of international courts?
Mr. Matas: I will repeat what Mr. Clark has just said. Up to now, there has been no legal regime of transfer to international tribunals. This bill at least does that. It may be a contorted regime, but at least the legal possibility is there, as it never was before.
We are not suggesting that this bill be held up in any way. On the contrary, Amnesty International has been pushing for this proposed legislation for years now. Ever since those tribunals came into existence, we have been pushing for this type of bill. We are happy to see it, but we would like to see it done in the right way.
The Chairman: You are asking us to set up a two-pronged approach. The first would be extradition, and the second would be an approach that met a much less stringent test.
How many cases before those two tribunals have gone through to fruition?
Mr. Matas: None have come from Canada. As you know, a Canadian judge, Louise Arbour, is the prosecutor for both of those tribunals.
The Rwanda tribunal was much slower getting off the ground and there have been a number of plea bargains and accepted sentences. There has been only one trial. With the tribunal on the former Yugoslavia, I think there have been about a dozen trials. I could not give you an exact number.
The Chairman: Until we see more of the results of the cases before these tribunals, is it not better to protect Canadian citizens through the more stringent requirements of extradition?
Mr. Matas: We are not necessarily dealing with Canadian citizens here. Presumably, most of these people would not be Canadian citizens.
The Chairman: We would be extraditing them from Canada, and so it is a question of protecting the rights of people within this country.
Mr. Matas: This extradition bill deals with anyone who is in Canada, including people who arrived here illegally with false papers and have no status or ties in the country. That is often the case when we are dealing with international murderers who are fugitives. They enter Canada with false papers and have no status here. The only thing that keeps them here is the legal proceedings. Why would we want to drag those out?
I would not say the test is less stringent. In fact we are saying that in both cases, the test is of equal stringency. The only difference is where the test is applied. The test of specialty and all these jurisdictional issues would nonetheless arise, but they would be decided by the tribunal alone and not by Canada.
The Chairman: We know from experience, though, that if these individuals were tried within Canada, we could trust our court system. I am saying that until we hear more results coming from these tribunals, perhaps we should not yet trust those court systems.
Mr. Matas: In a general way, that is a fair position. However, the way one demonstrates that position is by not signing, or by signing but not ratifying. You do not sign and ratify and then not comply. That is not the proper way to show you are waiting to see how things develop. Once we have signed and ratified, we are saying we trust them. Maybe that is a mistake, but that is our position internationally. I would urge us not to violate our legal obligations because we have developed some second thoughts.
The Chairman: We are in a Catch-22 situation with international tribunals.
Mr. Clark: I do not see it as a Catch-22 situation. However, your question does go to the heart of where Canada places itself with regard to the application of international law.
The process establishing international tribunals and the Statute of Rome has been a very careful one, which Canada has adhered to, and which now we need to make as strong as possible. Certainly there will be problems and difficulties. We are seeing some of them already. There is nothing to indicate that somehow or other the fundamental reasons for creating those entities have now disappeared. The argument that the United States puts forward, for example, that the International Criminal Court will somehow represent a potential threat to its citizens who may be guilty of war crimes in other countries, flies in the face of the very basis of international law itself, which requires that nations acknowledge the supremacy of those international courts. To do otherwise, is in fact to throw up our hands and say it is not working.
The Chairman: We run into international anarchy.
Senator Beaudoin: As a question of timing, you said we should not delay the bill, but you are proposing at least one or two amendments. I would like to know, because your contribution is very helpful, is that enough in your opinion? You suggest the questions of surrender and of extradition must be addressed through a clear-cut amendment to this bill. What else do you recommend?
Mr. Matas: Basically we have three amendments; the first one concerns surrender and extradition, the second one deals with the death penalty, and the third with refugees. Those three.
If I may follow up on the Catch-22 remark, the whole idea of Catch-22, which is from a Joseph Heller novel, is that you set up a requirement that cannot be fulfilled. Here is a requirement we can fulfil. It is just a matter of our deciding to do it. I do not see a Catch-22 here at all.
Senator Joyal: On your point about the Treaty of Rome, again, I am puzzled by the impression we are creating. I do not wish to leave Canadians who will read our proceedings, or listen to our debate this morning, under the impression that Canada took the initiative of promoting the international court as described in the Treaty of Rome, but we did not really have the time to look into what we would change in our national legislation. We thought it was a good idea that we should promote, and one day we would reflect on the impact of that initiative on our domestic legislation. I do not believe we do things like that.
I feel that when the Minister of Foreign Affairs, in cooperation with the Department of Justice, takes the initiative internationally to promote such an important change, which implies a surrender of sovereignty, in terms of criminal legislation, to an international court, they must have studied the implications for our domestic legislation.
We do not have here today the representative of the Foreign Affairs department, although he was here yesterday. However, my question is, what studies has the Department of Justice, in cooperation with the Foreign Affairs department, done before promoting that initiative, because a student in law would know that that would have implications domestically. They would have made a study of the impact, of how we must re-adapt our criminal legislation to at least be in conformity with the idea we are promoting and leading internationally. Those very questions become immediately significant, once you start to discuss ratification.
Do you not think that there must be a report somewhere?
The Chairman: That may be a question to ask when the minister appears before us with her officials. It is not really fair to ask these gentlemen that question.
Senator Joyal: Definitely not, but as I said, I do not wish to leave our viewers with the perception that we are doing things somewhere, but we are not evaluating the impact domestically on Canada. This is important to me, that there must be some logic in the system, in terms of the international court, especially at the very moment that Canada proposes to all the other nations of the world that they surrender part of their sovereignty in criminal justice to ensure a more efficient pursuit of specific types of crimes.
Mr. Clark: Over the last few years, the experience with international law conventions, declarations, and so on, has shown that that detailed reflection on domestic law has not taken place. The difficulties that Senator Pearson described with regard to other international legislation bears that out. Time and time again, the specifics are not there.
Senator Pearson: We move in the direction, set the baseline, and as with The Hague Convention on International Adoption, we eventually make the adjustments we needed to make. However, we did not do it beforehand because we did not perceive it beforehand.
Mr. Clark: That is correct. However, as Mr. Matas was saying, this particular rethinking or rewriting of extradition law in Canada was already well advanced before the Statute of Rome came into being.
We are surprised that it was not possible for the drafters of Bill C-40 to put in the sort of things that we are recommending. I do not think there is a fundamental disagreement there; there cannot be, inasmuch as people who went to Rome understood that distinction clearly. What we are trying to do now is harmonize that in a way that is clear and sends the right message to other countries.
Senator Bryden: You have indicated a couple of things. You wish to have three amendments; however, you do not wish to hold up the bill.
We are a chamber of sober second thought. However, we also try to be one of practical sober second thought. We can propose an amendment than can be accepted by the Senate. If that occurs, the bill is sent back to the House of Commons, where those amendments need to be considered. The fact is, it is then out of our jurisdiction.
The Chairman: Constitutional things can happen.
Senator Bryden: That is right. Some of the things that you have drawn attention to might generate very significant debate on the floor of the House of Commons, which may not have been there when the bill came through, that could prolong the actual consideration of those amendments, either their adoption or rejection, and the bill coming back to us again. It can be done long enough that things can be interrupted. Parliaments get prorogued and elections even get called.
My point, then, is: In our trying to balance our practical sober second thought and your position, there might be a real risk of the bill being held up for a year, for two years, or maybe being reintroduced in the new Parliament. Would you still insist that you would prefer to have us try to move the bill with those three amendments, as against saying that if in our judgment the bill is sufficiently advancing, and I believe you have indicated that, that we should take the half loaf we have as against losing the whole?
Mr. Matas: You must appreciate the nature of the work being done here. We at Amnesty International like to think we are practical, but we are essentially idealistic.
Senator Bryden: That is fair. The world needs idealists.
Mr. Matas: That means that we want everything. We want all these amendments and we want them now.
Parliamentarians may need to compromise to achieve results. We are here to make a proposal and we do not have to compromise in order to do that. Our proposal is that all these amendments be made and that the bill pass right away, or very soon. We leave it to parliamentarians who are sympathetic to us to try to make that happen. We urge you to try to make that happen.
Senator Bryden: Not only are you idealistic, you really are impractical.
Senator Grafstein: Senator Bryden raises an important issue. By the same token, one could have the other side of the coin, which is that if the government really wants this bill as a matter of public policy, it will extend public sittings and make room on its agenda, assuming they accept our proposition. They can reject it and we can decide yet again if we feel the public policy is better served by our amendments than the government's position on this.
I do not have any specific problem with putting this back before the government in an amended form, if the committee is satisfied. We have very compelling witnesses here. By the same token, we have not heard from the government and other witnesses, and we should before we conclude. If, at the end of the day, we conclude that there are strong public policy reasons for amendments, then the government must decide whether or not to make room in its political agenda, and perhaps work a little longer and harder, as most senators do, to achieve a good result in the public interest. I hear what Senator Bryden is saying, but I have heard that from the government for the past 14 years and I am less persuaded by that argument this week than I was last week.
Senator Bryden: You have just had a bad week.
Senator Grafstein: I think the public is being well served by the public arguments being made on these issues. This is a way to demonstrate that the public would be better served by more care as opposed to speed. I made that argument yesterday in the Senate on a bill that we passed too quickly.
The Chairman: You are strongly on the public record on that.
Honourable senators, we will meet again next Wednesday when the Senate rises. We will be hearing from Professor Anne La Forest.
There is the possibility of another witness, the Criminal Lawyers Association of Ontario, and then we will be following up by hearing from the Minister of Justice, Anne McLellan, and her officials.
The committee adjourned.