Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 62 - Evidence
OTTAWA, Wednesday, March 17, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-40, 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 3:45 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I should like to welcome all of you, including our television audience, to Room 257, East Block. We are fortunate to be able to meet in such a beautiful room to hear the views of Canadians on legislation. This room was established especially for the G-7 economic summit held here in July 1982. It was decided that the room would be preserved as a record of that historic event, in commemoration of which it was given the name Summit Room.
Today, we continue our consideration of Bill C-40. The bill aims to create a comprehensive scheme, consistent with modern legal principles and recent international developments in the field of extradition.
The bill was passed by the House of Commons on December 1, 1998 and received first reading in the Senate the following day. Bill C-40 received second reading on December 10, 1998, meaning that the Senate approved the bill in principle. Bill C-40 was then referred to this committee for detailed consideration.
That consideration began last week with the appearance of government officials and Amnesty International. Today, we will hear from the Criminal Lawyers' Association of Ontario, followed by Dean Anne La Forest, from the Faculty of Law of the University of New Brunswick.
We will have another meeting tomorrow, at which time we will hear from the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada.
Once the committee has heard from all the witnesses, we will proceed with clause-by-clause consideration of the bill, at which time we 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.
Before us today is Paul Slansky, a member of the Criminal Lawyers' Association of Ontario, who will be presenting the association's brief.
I wish to point out two things to members of the committee. First, we are having some problems with the sound. The translators and the recording people are getting the sound, but it is not recording properly. We intend to use the television tapes as our record of this meeting.
Second, we have received a number of documents, speaking notes and briefs, that are in one language only. Because of time constraints, they could not be translated. We are hoping to have them translated by next Tuesday. I am sure that we all agree that Canadians have the right to communicate with Parliament in either official language. I hope no one will object if these documents are distributed to the members at this time.
Senator Joyal: I am opposed to that.
The Chairman: In that case, members of the committee who wish to have them can pick them up themselves at the back of the room. The translated versions will be available on Tuesday.
Senator Beaudoin: Do you intend to proceed with clause-by-clause consideration of the bill tomorrow?
The Chairman: No.
Senator Beaudoin: So we will have the translated documents before we do so.
Senator Joyal: I wish to explain my rather blunt "no."
We have had an Official Languages Act since 1968. It is clearly stated in the Constitution of Canada that both French and English are the official languages of this institution. Everyone knows that documents, when they are introduced, must be in both languages. In this committee, in particular, where we are concerned about the implementation of the Charter of Rights, we must be careful to treat both languages equally in our deliberations.
The Chairman: It has always been the practice of this committee not to distribute documents unless they are in both official languages, but all Canadians have the right to communicate with their government in the language of their choice.
Senator Joyal: Definitely.
The Chairman: Please proceed, Mr. Slansky.
Mr. Paul Slansky, Member, Criminal Lawyers' Association of Ontario: I wish to start with an apology for having the materials available only in English. I learned only on Friday that I would be coming here today and the materials were finalized only last night. The Criminal Lawyers' Association is a volunteer organization, and I am here as a volunteer. We do not have the resources to enable us to have had the documents translated in time. However, the materials may be of some assistance to you as they are a clause-by-clause analysis of those clauses to which the Criminal Lawyers' Association objects.
The Criminal Lawyers' Association has some significant concerns about this bill. I have had the opportunity to review the transcripts of your proceedings of last week when you heard from representatives of the Department of Justice and Amnesty International. I will outline our position on some of the matters discussed with you then.
The Criminal Lawyers' Association is in significant disagreement with a number of the positions outlined by the Department of Justice on the first day of your proceedings. The Criminal Lawyers' Association is, however, in substantial agreement with the position of Amnesty International.
You may recall that Amnesty requested three amendments, one that concerned separating out surrender to international tribunals from extradition between states. The Criminal Lawyers' Association agrees with that separation, for reasons that I will outline in due course.
Amnesty International also indicated that they are opposed to discretionary surrender or extradition to face the death penalty. They said that there should be a mandatory prohibition of surrender to face the death penalty. The Criminal Lawyers' Association endorses that position.
Their final recommendation was to prevent involvement by the Minister of Justice in refugee issues, but to leave those issues to be decided in the ordinary course through the provisions of the Immigration Act. The Criminal Lawyers' Association agrees with that position as well.
Amnesty International indicated that they otherwise found the bill to be acceptable. That is where we part company. The Criminal Lawyers' Association has significant concerns about a number of aspects of this proposed legislation.
The difference between the position of Amnesty International and the Criminal Lawyers' Association is primarily one of perspective. Amnesty wants quick and easy surrender to face justice before international tribunals, but not extradition to places where there is a death penalty. Any obstacles to that in the bill concern Amnesty International.
On the other hand, we are concerned about the protection of the rights of the individual. Accordingly, some of what Amnesty International views as obstacles we view as important protections of the rights of the individual.
There are essentially three points that the Criminal Lawyers' Association wishes to make. First, the association largely welcomes the concept of the bill, the modernization of the extradition process; in particular, the elimination of the distinction between Commonwealth rendition, under the Fugitive Offenders Act, and the extradition process otherwise. That distinction has been described as outdated and outmoded, and we endorse the elimination of that dual process.
We applaud the clarification and codification of a number of procedures in the bill. We also applaud the inclusion of a mechanism, however flawed it may be, to allow for surrender to international tribunals.
Finally, we applaud the inclusion of provision for video-link evidence, which may very well be of great importance in certain circumstances in the determination of Charter issues in the course of extradition hearings.
Beyond that, the Criminal Lawyers' Association has some significant concerns. In particular, we challenge a number of the premises that are put forward to justify the reduction of standards and the elimination of protections.
There are three aspects of that challenge to the premises. The first is whether there is in fact a need for this bill, whether there is something wrong with the present system that requires the dilution of these protections. We take the position that there is no need. There is no evidence of any need in existence and none has been presented in any fashion during the course of these proceedings except bald assertions that there is a need.
The second premise being challenged is that the proposed legislation provides sufficient protection for individual rights and that it will pass constitutional muster. We dispute that premise. There are other aspects of this bill that are also unfair and potentially unconstitutional.
The third area I want to mention is that there are a series of provisions in the bill with which we take issue, not so much because they are wrong in principle, but there is some sloppy draftsmanship and some illogical, unnecessary provisions. Some of those are addressed in the materials that have been provided, which, hopefully, you will see in due course.
My submission to you today is primarily on that second area, namely, the challenge to the premises underlying this bill. In particular, the point is whether we need this bill, whether we need to reduce the protections and the extradition legislation.
As I understand the Department of Justice's position, they put forward two reasons under the extradition portion of the legislation as opposed to the international tribunal portion of the legislation. Certain countries, such as civil law jurisdictions, may find it difficult to meet our present laws of extradition, laws of evidence, and so on. Their second point is that crime has developed in a way that is more complex than it once was and that, therefore, the present extradition law is not suitable to address it.
It is the position of the Criminal Lawyers' Association that those propositions are incorrect. The state of the law of extradition at present is one that has been clearly determined by the Supreme Court of Canada, one that allows for a presentation of evidence and a consideration of that evidence under clearly defined rules that are not difficult for the requesting state to meet.
There have been very few cases in recent years about which I am aware where there have been discharges at extradition hearings or where extradition has been refused. There have been only a handful of cases over the last number of decades, if that many. To the extent that there have been examples, many came from situations prior to the Supreme Court of Canada having clarified the law. The law, as it presently stands, provides an easy, efficient and clear method to provide for the extradition to foreign countries. Therefore, there is not a problem with the judicial phase that needs fixing.
One of the other areas in which there have been problems is in relation to appeal and judicial review. That problem has already been fixed by the present legislation and, therefore, there is no need to be watering down these protections.
As I said, one of the purported bases was the fact that in some other countries, civil law jurisdictions are unable to meet the present requirements. There is, again, no evidence to support that. We have extradition requests from civil law jurisdictions all the time. They know what an oath is; they know what constitutes a solemn affirmation and an affidavit. To the extent that they need assistance, the Department of Justice is available, and has always been available, to provide advice to the requesting state so that they can put the materials in a form that will be acceptable to a Canadian court.
The purported justification for this legislation relating to civil law jurisdictions is a creation, in my submission, of the Department of Justice to allow for this watered down legislation to make their job easier. It is not a principle basis to allow for distillation of the protections under the bill.
They also say that complex cases are becoming more frequent, that there might be large fraud cases that make it impossible or difficult to meet the present requirements. Again, that is just not true. The present requirements allow for the adding, by appendix, of documents to affidavits as part of the authenticated documents. It is not difficult to present that to the court.
Complex fraud cases may be more difficult to prove at trial now than they may have been in the past in some ways; however, that does not mean that the extradition process is making it more difficult. It is just the nature of complicated criminal schemes that may make it more difficult generally. There is no basis to be watering down the extradition process unless there is something about the extradition process that is making it more difficult. Again, the presentation of evidence by way of documents appended to affidavits is something that is already provided for and does not create any kind of significant obstacle to extradition at present.
In relation to international tribunals, there is obviously a need because there is nothing to allow for surrender to international tribunals at present. I also agree that a reduction in the number of obstacles to send people to international tribunals is required It is important to understand that this is a different process, as Amnesty International has said. Under international law, there is an obligation to surrender to international tribunals. We have signed treaties to that effect. In the extradition context, there is no international law requiring extradition. The only law requiring extradition between states, as opposed to international tribunals, is that which is set out in treaty. All the treaties that Canada has entered into provide for discretion to surrender. There is no obligation to extradite; there is merely discretion to extradite. Therefore, it is apples and oranges when you are talking about surrender to an international tribunal and surrender to a state through the extradition process. We agree that the international tribunal process should be separate from the ordinary extradition process.
The next point I wanted to make is in relation to the protections in the judicial phase. Mr. Lemire pointed out a number of protections that are available under the bill as presently outlined, and I take issue with those protections. Those protections under the present bill are largely illusory. The extradition laws, as presently being applied within Canada, are practically a rubber stamp -- not fully a rubber stamp, but close to it. To a certain extent within the criminal defence bar, the prospects of winning at an extradition hearing or in submissions to the minister are largely laughable. There is such a slim chance to succeed -- which is what makes it a rubber stamp. Any kind of protection set out in this legislation is purely illusory.
It is clear when you look through some of the criteria set out by Mr. Lemire justifying the protections under the process. He said that the materials had to be certified, that there has to be evidence to justify committal for extradition. He also said that the evidence has to be determined to be sufficient according to the law of the requesting state, that this system will provide for more consistency and certainty, and that the fugitive will be able to get a better view of the case.
The departmental officials also said that additional protection is provided by the possibility of the minister deciding to not issue the authority to proceed at the first stage of the proceedings. He also submitted that there will be a clear code of procedure, which is not there now. Finally, the minister will be able to dispense fairness in the executive phase.
These submissions are not supportable. The certification does not add anything. The certification exists now. Evidence, he says, must be presented to justify committal for extradition. What is being talked about in this legislation is not evidence, it is a record of a case, which can include a summary from a police officer as to what evidence they have or believe they have in the foreign jurisdiction. It is not evidence. It is no more than what you would have at a bail hearing when the Crown attorney indicates, "This is what our case is all about." It is a summary. Insofar as the Department of Justice saying that there must be evidence, that is not correct. It is not evidence.
Evidence does not have to be admissible according to Canadian law, it only has to be admissible according to the law of the requesting state. This is a fundamental protection of the extradition process at present. Extradition can only be justified if there is a prima facie case according to evidence admissible by Canadian law. Furthermore, there are a number of fairness principles that are part of the Canadian rules of evidence that ensure that people will not be surrendered to foreign states in cases based upon evidence that does not constitute evidence as we see it. This no longer exists. The extradition process will allow for removal to countries throughout the world. Some of the admissibility standards in those countries will be a far cry from the evidentiary requirements in Canada. This significantly dilutes the protections that the Supreme Court of Canada has indicated to be fundamentally important to the fairness of the extradition process.
Does this add consistency? Not in the least. In fact, it makes the whole process more inconsistent. You could have the same facts and evidence in two different countries, say, France and the United Kingdom. In one case, you may get extradition to France but not to England because the evidentiary requirements are different even when the case presents the same evidence and facts. How can that be said to be consistency? Currently, extradition is determined by Canadian standards and it will be uniform in each case.
The Department of Justice justifies this on the basis that there will be a better view of a case by the fugitive. However, all you are getting is a summary of the case outlining what the police think they will have as opposed to the evidence that someone is prepared to commit to under oath in an affidavit. This gives you the worse view of the case.
The officials from the Department of Justice said also that is protection because the minister may decline the authority to proceed. That is laughable. At present, discretion is used in deciding whether to proceed with an extradition. When a request comes from a foreign state, the Canadian government does not have to comply with it; yet there have never been any cases in which a request for extradition has been refused, as far as I know. If that is the case, what does this authority to proceed amount to? There is no protection whatsoever.
They say there is no code of procedure now and that this provides one. That is not correct. There is a code of procedure. It is the same code of procedure that applies in relation to a preliminary hearing, subject to certain adjustments for the extradition context, which have all been clearly determined by our courts. The code of procedure is set out in the present legislation as interpreted through the common law.
Finally, in relation to the minister handing out fairness in the executive phase, that is illusory. Often the minister will have to assess a case based on the facts of that case, facts that are largely unknown to the him because all he will have is a summary of what they hope the case will be about.
The proposed legislation effectively takes from the Supreme Court of Canada and our courts of appeal a large body of law, the constitutionality of which has been upheld, and throws the gates wide open again. This will provide a field day for lawyers like me. We will be in litigation over this bill for the next five to ten years, reopening the constitutionality of legislation the has already been upheld. There is no need for this, and it is counterproductive. If there were serious problems with the present legislation, I could understand adjustment, but that is not the case.
Finally, there are a number of other issues upon which I will not now elaborate but which are important to mention because the Criminal Lawyers' Association is very concerned about these issues. They are set out in the written materials, however, I wish to highlight them by identifying them. There are four.
The first is the double criminality rule, the rule that the offence for which extradition is being sought must also be criminal according to Canadian standards. It can be bypassed by clauses 59 and 80, through the concept of double criminality or the rule of specialty, which are related concepts. This is fundamentally unfair and inappropriate because it is not consistent with the consent of reciprocity, which the Supreme Court of Canada said is one of the primary underlying features of the extradition process.
The second point is related to the death penalty. I will not expand on this issue since you have already heard the submissions of Amnesty International, with which we agree. The third issue is related to the refugee issues that Amnesty International referred to.
Finally, there is a provision in clause 4 that allows for further proceedings once the proceedings have been commenced. Potentially, this could lead to a discharge so that the whole process can start all over again. This is inherently an abuse of process. It is contrary to the Criminal Code in the criminal context and it should not be acceptable in the extradition process.
Essentially, those are the concerns of the Criminal Lawyers' Association.
The Chairman: It is obvious that you seem to have some basic concerns with Bill C-40.
Mr. Slansky: Yes.
Senator Beaudoin: You agree with the three amendments proposed by Amnesty International; correct?
Mr. Slansky: We agree with the three proposed amendments; we do not agree with the comment that otherwise Amnesty International finds the legislation to be acceptable. We have further concerns but we agree with those three concerns.
Senator Beaudoin: But if those amendments are not made, do you object?
Mr. Slansky: Yes.
Senator Beaudoin: You have added two or three points. Do you have amendments for those three or four points?
Mr. Slansky: We have not set out specific wording for the proposed amendments, but we explain our position in the written materials and our concerns in relation to each of those points.
Senator Beaudoin: Those concerns may be tantamount to suggesting an amendment?
Mr. Slansky: Yes.
Senator Beaudoin: On clause 12, we had the debate on the question of the minister and the Attorney General. You are very familiar with that in private practice. Do you have any problem with clause 12 as it is drafted?
Mr. Slansky: Yes. The Criminal Lawyers' Association objects to the appearance of bias that necessarily flows from the extradition process being initiated by the Minister of Justice, then the Attorney General of Canada and then back to the Minister of Justice.
We accept the proposition generally. However, in these circumstances it is objectionable for the following reasons. Here, the Minister of Justice, in the final stage, is involved in a quasi judicial function assessing whether or not the rights of the particular individual will be violated by surrender, whether that might require conditions or whatever, and is to be looking at it impartially.
The same case, often with the same facts and issues, along with the same person, that is, the same minister in the context of being the Attorney General, has taken an adversarial role in relation to that same case in pursuing the extradition. To take an adversarial role in the one context and then on the same case, albeit on somewhat different issues, be expected to be impartial is, first, difficult to achieve and, second, creates an appearance of bias, which, in itself, is sufficient basis to change that process.
Senator Beaudoin: Is it the question of impartiality that worries you?
Mr. Slansky: Yes, and the appearance of impartiality as well.
Senator Beaudoin: Justice should not only be done, it should be seen to be done.
Mr. Slansky: Yes, exactly.
Senator Beaudoin: I should like to return to the death penalty, because it is an important issue.
We know that most nations have abolished the death penalty, although in some states of the United States it still exists. This poses a big problem for us. The boundary with the U.S. is huge. The political aspect is not so difficult to understand. It is the discretion that worries me. Will some discretion be awarded to the Canadian authorities?
Mr. Slansky: There is at present. This bill contemplates that it should continue. There is support for this position at present from the Supreme Court of Canada in Kindler, although that was a split decision, which may be reconsidered next week by the Supreme Court of Canada in another matter.
Senator Beaudoin: The dissenting opinion of Justice Cory is very strong. He is definitely against the death penalty. If the death penalty were ever reintroduced in Canada, it would in contradiction of section 12 of the Charter because it is cruel and unreasonable punishment.
Mr. Slansky: I agree.
Senator Beaudoin: However, in the United States the Supreme Court has ruled otherwise. Are you satisfied that we should keep the discretion that now exists in Canada under the state of law?
Mr. Slansky: It is the position of the Criminal Lawyers' Association that there should be no discretion to surrender for the death penalty. It should be mandatory that assurances be sought to prevent the imposition of the death penalty. It is our position that it is largely a legal fiction, although one that is supported by the Kindler decision, that Canada is not significantly implicated in surrender to face the death penalty. "We are not imposing the death penalty," says the Supreme Court of Canada. "We are just surrendering to another country that will impose the death penalty." While that may be the constitutionally permissible standard according to the Supreme Court of Canada, there is nothing to stop Parliament from legislating that there should never be surrender to face the death penalty.
Senator Beaudoin: We may do that easily.
Senator Joyal: Although we can do whatever we want in the legislation, that does not mean it will come into force somewhere else.
Senator Beaudoin: Is it true that you want this discretion to be set aside?
Mr. Slansky: That is right.
Senator Beaudoin: You may very well be right on this. However, what does that mean in practice? Does it mean that our authorities will have to do something with the American authorities?
Mr. Slansky: That is right.
Senator Beaudoin: They will have to do something to have a deal, is that what you are saying?
Mr. Slansky: That is right. It is my understanding that, every time assurances have been sought for the death penalty or any kind of assurance is being sought from any country, the country has never said, "If you do not send the person back to face the death penalty, we do not want him at all." They will still want the person. They will always make the deal to send the person back with assurances that they will not be seeking the death penalty.
It is my understanding that in every state in the United States the death penalty cannot be imposed unless the prosecution seeks it. Therefore, the prosecution has control over whether or not it will be imposed. They can make the deal.
The Department of Justice says, "International law makes extradition an executive act, thus it is not something that should be legislated. It is something that should be negotiated between countries." That submission ignores the fact that the minister is subject to exercise that discretion according to law. If Parliament dictates that you must seek assurances, then the minister will seek assurances. The submission that this is somehow beyond the scope of Parliament in my submission is incorrect.
The concern about Canada becoming a haven is also something that is not supported by the evidence. In particular, there has been a discretion to not surrender to face the death penalty for a long period of time with the United States. Have we seen a flood of alleged murderers coming to Canada as a result? I suggest not; no more so than any other kind of crime because we have the border that we have. This fear that Canada will become a haven is just that, namely, an unfounded fear. If it turns out to be a well-founded fear, I suppose Parliament can always change its mind. At present, it is not one that is supported by any objective fact.
Senator Buchanan: Are you saying that much of this bill is not relevant but is already covered by the present act and much of what may have been achieved here could have been achieved by amendments to the present act?
Mr. Slansky: No. The approach of this bill is one that is somewhat different. It is a change in conception to a certain extent and probably could not be achieved by simple amendment to the existing act. However, some of this bill is certainly significantly different from what we presently face under the law. That is why we take objection to it.
I said that a lot of the purported need for this legislation is not there. The present system allows for an easy extradition process that has already been held to be constitutionally valid. Therefore, we do not see the need to change this approach by eliminating Canadian standards of evidence, allowing all this hearsay to come forward, et cetera. There is no need for it. In other words, the present system is working fine.
Senator Buchanan: There is one section on which I should like to get your opinion. Regarding a case in Halifax, the Maersk Dubai case, it is my understanding that Mr. Justice MacDonald based his decision that he could not extradite the Romanian sailors to Romania because he lacked the jurisdiction. That was because the alleged offence took place in international waters and not in Romania. It appears that proposed section 5 will now cure that.
Mr. Slansky: Yes, insofar as it gives authority to proceed in such circumstances. The point of the Department of Justice is that there is still provision for the minister to refuse to surrender where jurisdiction is doubtful.
Again, the merits of the Maersk Dubai case remain to be seen. There is a case in the Supreme Court of Canada that talks about the extent to which jurisdiction is something that is a bar to extradition. Certainly, it may be said to be at odds with that case. It may or may not require the amendment that is there.
Senator Buchanan: The amendment now clarifies it for another judge who may have a similar case?
Mr. Slansky: Yes. Insofar as it suggests that you can go beyond territorial jurisdiction, the Criminal Lawyers' Association does not take great exception to it, because there are other forms of jurisdiction that can be asserted. However, it also rejects the Canadian concept of extradition, which is well-defined in terms of there having to be a substantial connection to Canada and comity must not be offended by the assertion of jurisdiction. That also is rejected. It does concern the Criminal Lawyers' Association that there could be no territorial jurisdiction and no jurisdiction as recognized by Canadian law, yet, still, we could pursue that extradition. That does concern the Criminal Lawyers' Association.
Senator Buchanan: I thought it would.
Senator Bryden: You are speaking for the Criminal Lawyers' Association of Ontario?
Mr. Slansky: Yes.
Senator Bryden: Do you know whether the criminal law section of the Canadian Bar Association would agree with your position?
Mr. Slansky: I have not consulted them, so I am not sure. However, I would expect that they would have a lot of the same concerns that we are expressing. These are concerns that criminal lawyers doing extradition work have, and I would imagine they would be echoed by the CBA and, presumably, criminal lawyers throughout the country.
Senator Bryden: The criminal law section of the Ontario Bar Association is quite large.
Mr. Slansky: Yes.
Senator Bryden: Approximately how many criminal lawyers are there?
Mr. Slansky: Frankly, I am not sure. It is hard to define, insofar as some criminal lawyers do other law as well, while some do just criminal law. Had I been properly prepared, I might have been able to get a list from the Criminal Lawyers' Association, but I would not know how many are in the Ontario portion of the Canadian Bar Association.
Senator Bryden: Are there various subdivisions within that? In other words, how many people would have been involved in formulating the position that you are taking today?
Mr. Slansky: As set out in the materials, which I guess you have not seen, there were three of us involved in the preparation of these submissions, but we did so with the endorsement and the expectation of the Criminal Lawyers' Association that we will be putting forward views that they would find acceptable. However, they have not been ratified by the Criminal Lawyers' Association or the CBA, or anything like that. The three lawyers, myself included, who prepared these materials and presented this submission to you now are all quite heavily involved in extradition issues. We hope that our views would be echoed by other criminal lawyers.
Senator Bryden: Are there a lot of lawyers from the Ontario bar criminal section who are involved in extradition issues?
Mr. Slansky: No. The number of lawyers who do a lot of extradition work are quite few, perhaps slightly more than a handful of them. You probably have the majority of the criminal law with special expertise in extradition presenting you these submissions. There may be five or six in total.
Senator Bryden: We appreciate the expertise. I used to be in the business of law and one of the legitimate questions that lawyers expect to be asked is: Is some of it self-serving? The position being taken basically is: If it ain't broke, don't fix it, and if you fix it, simply fix it by amending it in accordance with what Amnesty International suggested. Am I fair in that?
Mr. Slansky: I understand your question. The answer is a resounding, "No, this is not in our self-interest." In fact, as Mr. Lomer, who made submissions before the House of Commons committee, indicated it is very much in our interest to pass this legislation as is because we will have the financial benefit of litigating it for the next five or ten years and will potentially make a lot of money as a result of constitutional problems with the proposed legislation. To the contrary, it is not our own self-interest that is governing these submissions, but rather what we view as being the right and constitutionally necessary aspects of the law in this area.
Senator Bryden: I did not ask this question of the Justice officials but I will when they return here. This bill is the result of a significant amount of consultation, consideration, and, indeed, the expertise of some learned people in the law within the Department of Justice. If the proposed legislation is so bad and unnecessary, why is it here, in your opinion?
Mr. Slansky: That is a good question, one that I do not have the answer to. It presumably comes from their perception that they would like it to be easier than it is. It will certainly achieve that result.
Clearly, there is a need for the legislation in certain respects, to get rid of the Fugitive Offenders Act and to allow a mechanism for the surrender to international tribunals. Those are all necessary changes. They decided, I suppose because they are getting rid of the Fugitive Offenders Act and combining it with the Extradition Act, that there is some need to consolidate and make a comprehensive scheme. I suppose that those in the Department of Justice who are interested in making it easier are using this opportunity to do so, but there is, again, no indication of a need for this legislation that I am aware of.
Amongst the criminal bar, the chance of winning extradition cases is largely considered a joke. If you are taking a extradition case on, they say, "You do not really expect to win, do you?" You do your best with what you have. It is practically rubber-stamped now, as I indicated earlier. Under the circumstances, I cannot see why there is a need to make these changes, except for those who actually want a rubber-stamp process, and clearly it does serve that purpose.
Senator Bryden: There is at least one clause in the bill, namely, the one relating to the death penalty provision, which, as I understand it, basically codifies the law as it is now.
Mr. Slansky: It codifies the law as it is now, although the law as it is now is largely there in treaty. Each treaty has such a provision. I have not gone through all the treaties to determine that, but I believe that most, if not all, treaties have such a provision. Certainly where the death penalty exists in the other state, there is provision made for that. Now it will be not only in the treaties but also in the proposed act, but it does echo what has been determined by the Supreme Court of Canada to be constitutionally permissible, yes.
Senator Bryden: And that is not an unusual role for Parliament?
Mr. Slansky: No. It is not objectionable in that sense. It is merely codifying what the Supreme Court of Canada says is permissible. However, just because the Supreme Court of Canada says it is permissible does not mean that Parliament should adopt it as desirable. We do object to it on a number of bases, some of which I have already indicated.
Senator Bryden: Yes. Your group made a similar submission to the House of Commons Standing Committee on Justice and Human Rights?
Mr. Slansky: Yes, we did. There were about four amendments made that drew largely upon the submissions we made. I have deleted those recommendations from the written materials. Those amendments or suggestions, though, were largely procedural. The main focus of our submission was not accepted by the committee of the other place.
Senator Bryden: Were you given any reason, or are you aware of any reason, for that?
Mr. Slansky: No.
Senator Bryden: A great deal of what you say relates to the protection of individual rights. As I read the bill, there appears to be more emphasis on what might be termed a public policy decision to make it more expeditious to be able to extradite persons. Your position is that it is easy enough now. I am just trying to understand why there is such a blanket opposition from your group to what seems to be a public policy determination that has been made, obviously with some consultation and with some legal advice.
The fact that you appeared before the House of Commons committee and they accepted some of your procedural amendments but not your basic position would indicate to me that they did not agree with your policy position as against the public policy. Is that a fair statement?
Mr. Slansky: That would be a reasonable inference, yes.
Senator Joyal: I should like to return to one of your statements. You said that the present bill would throw the gate wide open to question the constitutionality of questions that have already been upheld by the Supreme Court.
Could you list for us in a brief way which are those points that you would feel, as a lawyer, totally at ease to question? That statement is fairly encompassing in terms of its consequences, and I would certainly like to share your experience on those grounds.
Mr. Slansky: First, the Supreme Court of Canada has said in several decisions, in particular, in Schmidt and in McVey, that the extradition process as it presently stands is constitutionally valid insofar as the rights and liberties of the individual are protected, primarily through the judicial phase; in the words, the extradition hearing, which requires that there be a prima facie case according to evidence that complies with Canadian laws of evidence. That requirement ensures that Canadian principles are incorporated in making out that prima facie case.
In other words, the process is meant to be a screening process. We do not wish to send people to other countries unless there is a real possibility that they could be convicted there and that the conviction would be consistent with Canadian principles of justice and fairness.
By eliminating the requirement of the oath in relation to the factual assertions, by eliminating requirements that the information comply with Canadian rules of evidence, that screening process is no longer effective. For the process to be effective, you must know that based upon the available evidence someone could be convicted. However, this is not a determination that someone could be convicted on this evidence because you do not need to submit the evidence so the evidence does not need to comply with Canadian standards.
That fundamental protection that the Supreme Court of Canada hangs its hat on in those cases has been basically eliminated. Further, there is the right to cross-examine on facts being used by the state to deprive you of life, liberty and security of the person. The Ontario Court of Appeal, in Smith, said that reliance on authenticated documents without cross-examination is acceptable because there are indicia of reliability in the present system. In other words, the documents are authenticated, they are sworn, and so on. These various protections ensure reliability.
All of those indicia of reliability have been removed by this bill. Again, challenge to the precluding of cross-examination is now an open question if this bill passes. In particular, that itself was becoming more and more questionable as time and technology advances. This bill itself recognizes that taking evidence by video link is now technologically feasible. The basic underlying principle in Smith that allowed for the admission of authenticated documents without cross-examination was that to require cross-examination would be to make extradition virtually impossible when dealing with countries at the other end of the planet.
Now, with the video-link technology, that basis for precluding cross-examination has been undermined by technological advances. At a time when we should be re-considering the preclusion of cross-examination, we are going light years in the other direction. Further, the proposed legislation is undermining the consent of double criminality, as I indicated before. If a person is being extradited on one offence, the minister can decide to send the person back on other offences, even if they are not extraditable offences, and can send the person back even after a judge has determined that such person should be discharged on certain offences because there is insufficient evidence. The minister can effectively override that and send someone back on other offences anyway. As I indicated earlier, that is a fundamental protection as well.
One of the other primary areas in which fairness to the individual is protected is through the ministerial process, that is, the executive phase, wherein the minister can refuse to surrender in certain circumstances, insofar as this system allows for the presentation of facts merely by summaries as to what they hope the case will amount to. The minister is making this determination, as to whether the trial will be fair, largely in a vacuum. Therefore, the fairness of that surrender itself is questionable.
There are a number of other examples, and I will not go into them all. In particular, the refugee issue is a significant Charter problem with the bill as it presently stands. There are cases indicating that if someone has a well-founded fear of persecution, which is the basic definition of "refugee," even if they are not eligible to make a refugee claim, surrender of them to a particular country from which they fear persecution would violate section 7 of the Charter. In particular, the Nguyen case from the Federal Court of Appeal makes that clear, and there are other decisions from the Federal Court of Appeal. The Supreme Court has not dealt with the issue yet. By taking this position, that if you are extradited you cannot claim refugee status, is a serious section 7 concern.
Those are some of the more serious issues. The Supreme Court of Canada has, as the law presently stands, upheld the general constitutional validity of the legislation based upon some of the protections that are there, and those protections are now being removed.
Senator Joyal: Are all those points covered in your brief?
Mr. Slansky: Yes.
Senator Joyal: All of them?
Mr. Slansky: Yes.
Senator Joyal: It means that they already were presented when the bill was discussed in the other place?
Mr. Slansky: Yes.
The Chairman: I have one question which is over-simplifying things, however, it seems to me that you have said two different things. You have told us that the present extradition process is just a rubber stamp.
Mr. Slansky: Partially a rubber stamp, yes.
The Chairman: You also told us that it is working fine, that it is constitutionally valid.
Mr. Slansky: That is true. It has been upheld as being constitutionally valid. I do not necessarily agree with the Supreme Court of Canada's decision that these minimal protections that amount largely to a rubber stamp provide any real protection, however, the Supreme Court of Canada, nevertheless, has said that they do. Personally, and as a lawyer, I would like there to be better protection of those rights. However, the Supreme Court has said that you do not need better protection of the rights. Now what little rights there are, are being eliminated, therefore, it is becoming a real rubber stamp.
Senator Grafstein: I am interested in your support for the Amnesty International position about the two-track process.
The Amnesty International position, in effect, says that we should have a faster and easier track for Canadians charged with crimes against humanity, international crimes, to ensure that there is fast and appropriate compliance, subject to protecting their appropriate rights.
The Chairman: I, perhaps, should not have said that it was not asked. It was part of Mr. Slansky's original submission.
Senator Grafstein: I understand, but I want to question him about that.
The government witnesses took the position that, in effect, it would be inappropriate to put Canadians into two different classes: those who are charged with a crime that are being extradited to another state, to another nation, and those who are being charged with a crime against humanity and are being sent to an international tribunal. Therefore, one of the reasons for having, in effect, similar rules is to treat each Canadian individually.
In response to that, Amnesty International argued that in Canada we already have a two-track system. We have a two-track system in criminal law, which is summary versus the indictable system. In effect, we have looked at the nature of the crimes and we have treated them in a different way.
What is your position with respect to the government position? I assume that you made that argument to the other place and that they chose not to accept that as a policy position.
Mr. Slansky: Let me deal with the last point first. We may have made a brief reference to this issue in our appearance before the House committee but it was not a focal point of our submissions at that time. It was largely in response to the Amnesty position. They presented before we did, and we heard them and then made a few comments. However, it was not part of our submissions per se. It is now, however, in our material and one of our submissions. We did not specifically make that position and it was not specifically rejected in terms of our submissions, but Amnesty made that position at the time.
We do agree with the position that was made my Amnesty, for example, comparing summary conviction versus indictable. You have different procedures for the more serious offence than you do for the less serious offence. That is not considered a kind of discrimination but something that arises from the nature of the charge.
Similarly, it is our position that there are different sovereignty issues in relation to surrender to international tribunals as opposed to extradition between states.
Senator Grafstein: Explain that.
Mr. Slansky: In relation to surrender to an international tribunal, Canada has given up its sovereignty interests on this point to the extent that it has a duty to surrender by treaty. It has given up its sovereignty interest and has said that it has a duty to surrender. It has removed its sovereign discretion to say "yes" or "no" and says it is up to the international tribunal to address those issues. In the extradition context, less sovereignty has been given up. In each and every extradition case between states, Canada retains its discretion to say "yes" or "no." It is a different situation when you are dealing with an international tribunal. There is less of a reason for Canada to be intervening because it has retained less sovereignty in that area. It is, as I mentioned before, like apples and oranges.
Senator Grafstein: In effect we have contracted out by international agreement, which is different from an extradition between states where we have an extradition agreement. I do not understand that.
Mr. Slansky: In the extradition agreement, there is no obligation to extradite. There is a treaty that exists that provides a mechanism to extradite but discretion, which is why the minister retains the discretion to say "yea" or "nay," or to say "yea" but with conditions. In the international tribunal context, they are saying that it should not be extradition at all, that it should merely be surrender. The international tribunal will deal with whatever issues might have warranted the exercise of discretion.
Senator Grafstein: If we accepted Amnesty International's position and your support for that position -- obviously depending on the drafting, but notionally, for the moment -- do you believe that there would be a Charter defence available to a person in Canada who was being extradited? That appeared to be another concern raised by the government indirectly.
Mr. Slansky: In the international tribunal context?
Senator Grafstein: Yes.
Mr. Slansky: Certainly I would expect that people would launch constitutional challenges in the first few cases arising. You cannot avoid that. I would expect that ultimately the courts and the Supreme Court of Canada when dealing with the issue will determine that this is qualitatively different and, therefore, constitutional. It is not discrimination as defined by the Supreme Court of Canada, which says that there must be discrimination on one of the enumerated or analogous grounds. This is not discrimination upon an enumerated or analogous ground. Short of section 15, they would have to demonstrate that surrender to an international tribunal in this fashion would be contrary to principles of fundamental justice. Insofar as that is the case, they will have to look at it in the contextual basis and say Canada has given up its sovereignty in this area and that is the context in which you assess what fundamental justice requires in that context.
Yes, I would be surprised if they did not bring a constitutional challenge, but I think the differentiation of the two positions is supportable and desirable. To put them in the same system dilutes the protections in the bilateral extradition context. Trying to eliminate obstructions for international surrender and, at the same time, mixing the two, you are putting obstructions in the international tribunal context because it is merged with the state extradition. By mixing these two different things, you are messing them both up.
Senator Bryden: It is my understanding, having done a little research since Amnesty International was here, that it was one of the non-governmental organizations participating in the conference that resulted in the Treaty of Rome. They tried very hard to have the states accept that there be a different process for surrender to international tribunal than that for extradition. They were unsuccessful in having that happen.
It is also my understanding that the word "surrender," as it applies in that statute, was about as neutral a term as the states could agree upon. It does not in any way indicate that the process the individual state follows in surrendering the individual needs to be different than that state's extradition used normally. Is that fair?
Mr. Slansky: I must admit, frankly, that I am not sufficiently familiar with the provisions of the Treaty of Rome that I can give you an informed opinion on the intricacies of that particular issue. I am sufficiently familiar with the other treaties in relation to the present international tribunals to understand that their "surrender" is different than "extradition." Surrender is anticipated to be non-extradition surrender -- that is, less of an obstruction than the usual extradition process is. There is a duty to send the person there.
I know that this committee has dealt with the issue of, "Well, we do not have a ratified Treaty of Rome here to deal with yet but we do have the two international tribunals now." Insofar as they do exist and their provisions are clear, I would submit that it supports the differentiation of the two processes.
Senator Bryden: I am sure you did not come here conversant with all issues; I certainly did not. It is my understanding that, even under the present international tribunals, the guidelines or procedures governing surrender are administrative directives suggested to states as a way to comply with the surrender to the court. They are not compulsory.
Mr. Slansky: I am not positive. I will take your word for it that that is the case. Certainly, it will not be effective until and unless Canada enacts legislation that allows for a particular procedure, which is what this bill does.
If they are merely administrative guidelines, then it may be that the present day legislation does not contravene the "treaty," as Amnesty International has said. I merely defer to the Amnesty International position that they view this as being more than administrative guidelines. They view this as being fundamentally at odds with the treaty obligations for those tribunals. I am not sufficiently familiar with the situation to say more than that.
Senator Bryden: I will ask these questions of the minister since I neglected to ask them of Amnesty International.
These guidelines are non-binding in character. The tribunals themselves have entered into an extradition treaty with the United States. An extradition process is used by the United States to effect their surrender to the tribunals.
Mr. Slansky: As I understand it, generally, the United States' position with respect to surrender to international tribunals is generally much more of a jealously guarded kind of jurisdiction than exists elsewhere. The fact that they take that position does not mean that that should be the standard by which Canada should govern itself.
It may be that you are right; but that is an indication that these are administrative guidelines, since they do deviate from it in the case of the United States. However, again, I am not sufficiently familiar with how the United States has become a party to this particular convention. I do not know if there were reservations in the treaty process that allowed for this. Frequently, the United States imposes reservations in making treaties, especially in multilateral conventions. I have not researched it. I apologize, but I am not in a position to answer beyond what I have already said.
Senator Bryden: I appreciate that. There have been no allegations with respect to the two tribunals that are currently functioning that the United States is not cooperating or complying, which is something either you or I can verify. They have done that by entering into an extradition agreement with the tribunal. Presumably, Canada, under this bill, or indeed under the old extradition rules, could comply with surrendering people.
Mr. Slansky: I am not sure that they could comply under the present legislation because it only allows for extradition between states.
Senator Bryden: They would have to enter into a treaty with the tribunal under the old system?
Mr. Slansky: I am not sure they could because it is not a state, it is a tribunal. They need some kind of legislative amendment at least to be able to do so. Under this proposed legislation, they can do it. However, it is suggested that it be done on a separate basis.
The Chairman: I wish to thank you very much for your presentation. I understand our next witness is with us.
I now invite Dean La Forest to join us at the table.
Please proceed, Ms La Forest.
Dean Anne W. La Forest, Faculty of Law, University of New Brunswick: Madam Chairman, thank you for inviting me here today.
First, I will summarize the points that I want to make in respect of this bill. I should say right at the outset that I agree with a number of the statements made by the previous witness, and where possible, I will shorten my comments. I have also reviewed your transcript and some of the questions that have been asked previously. I would be happy to answer questions in relation to such matters as the death penalty and the international tribunals.
The objectives of extradition can be seen to be both international, in the sense of comity between nations and the fulfilment of Canada's obligations toward other states in an increasingly mobile world, as well as national, in the sense of ensuring that Canada does not become a haven for criminals. These words have been used often in the language of the Department of Justice.
There is also, however, a significant responsibility to ensure that the domestic process by which a person who is to be surrendered to another jurisdiction for prosecution or sentencing, or to serve their sentence, is fair and can survive the scrutiny of the Charter of Rights, as it involves a significant impact on the liberty of the individual. In this context, it is frequently forgotten that Canada's main extradition partner is the United States, and that in many instances, the fugitive whose return is sought is in fact a Canadian national rather than the notional person who is from another state.
At a general level, this bill has some positive aspects. I refer in particular to the decision to update the Fugitive Offenders Act to make it a similar process to that of the Extradition Act. It makes good sense, particularly when you review that act and see language such as "hard labour" and other things that have become outdated. It recognizes Canada's changing role in the international community, in the sense that the links in that act related to Canada's position in the Commonwealth.
Similarly, the objective of trying to fulfil Canada's international responsibilities in respect of breaches of international humanitarian law is also a laudable goal and speaks well of Canada's capacity to act as a leading force in ensuring human rights on an international as well as a national basis. It may also be said that codifying and consolidating the legislation to allow for a uniform process is also a desirable goal.
These things being said, I have two broad concerns about the bill. In that regard, you will find a certain degree of agreement with the previous witness.
First, there is a broad concern with what I would describe as a shifting balance in the extradition process between the role of the judiciary and the Minister of Justice that goes somewhat beyond what has been accepted in the judicial decisions of the Supreme Court of Canada. In my view, this may be subject to valid challenge, both at the level of the extradition hearing and by way of judicial review of the minister's decision to surrender an individual to an extradition partner.
Stated in other words, there is indeed codification and consolidation in this bill. However, there are instances that go beyond what has been tested under the criminal law and the Charter and that may give rise to challenge, and hence, new delays in the process which, as the previous witness said, is in most instances quite efficient. Indeed, it is my expectation that delays will move or shift away from the judicial process to the back end, that is, to the question of judicial review.
The extradition process has always involved both the judiciary and the executive. That has passed the scrutiny of 15 years of litigation before the Supreme Court of Canada and the Charter, including provisions such as section 7 relating to fundamental justice, section 12 relating to cruel and unusual punishment, and section 6.
The existing process, however, is one that has, on occasion, allowed the questioning of jurisdiction in difficult cases -- I mention the Maesrk Dubai case specifically in my brief -- and which does require evidence consistent with that which would be used in a preliminary inquiry in Canada for an indictable offence, that is, evidence that would be admissible in Canada. Bill C-40 entirely removes the issue of jurisdiction.
In terms of the extradition hearing, as opposed to the judicial review of the minister's decision, this bill has removed the question of jurisdiction entirely. In addition, in clauses 32 through 34, the question of evidence has become one that is satisfactory to the extradition partner, and not evidence that had previously been considered to be admissible under Canadian law.
In my view, these changes alter the balance of the process that has been accepted in the Supreme Court of Canada decisions and there will be renewed challenges under section 7 in relation to fundamental processes and rights. I believe there is some argument that they will be successful at the level of the political process, the minister's decision. In 1991, when I was doing the last edition of this book on extradition, I wrote that, in effect, because of the enactment of the Charter, there had been a number of decisions which questioned the minister's ability to surrender a fugitive. The review process has, in many cases, become very time-consuming, thereby hampering to some extent the fulfilment of Canada's international obligations.
Turning to Bill C-40, while many of these kinds of discretions existed in individual treaties between different states, they are now statutorily provided for the minister, and in very clear terms. In particular, there is a broad jurisdictional discretion and a correspondingly narrow political offences provision. There is also a provision relating to what is called, in extradition law, specialty, which means that the minister has the discretion to surrender not only for the extradition crime requested, but for other crimes as well, and the previous witness spoke about that.
The general point I am trying to make before this committee is that the existing decisions of the Supreme Court of Canada were decided in the context of the existing balance between the judiciary and the minister, and in my view that has been altered to some extent by Bill C-40. The consequence of this is that there may be repercussions at both the judiciary and the executive levels that will delay extradition proceedings. At the extradition hearing in particular, I believe there will be challenges in respect of the jurisdiction provision and in terms of the evidence.
The effect of the decision to have all human rights issues addressed at the ministerial level is to invite judicial review, which will result in the courts having the opportunity to again review the extradition process in relation to the Charter. I do not think I need to tell you that many of the decisions of the Supreme Court of Canada have been close calls. It is, in effect, an invitation to renew judicial scrutiny. I identify a few of the particular provisions where I see this occurring: jurisdiction, which is section 47(e); political offences, which is section 46; specialty, section 40(3); and the double jeopardy provision in section 47(a).
That is the first broad consideration in this attempt to shift the balance. I agree with the previous witness, who said it was, in the past, a relatively efficient process. I would not go so far as to say it is a rubberstamp. I think we would part company there, but there has been a shift in the balance.
The second concern is really more at the level of a narrower but equally important problem, and that deals with the decision to treat uniformly the various approaches to extradition. You have in the bill reference to extradition agreements, extradition partners, specific agreements in international tribunals. As the previous witness has noted, under the existing act, all of these approaches, except that applying to international tribunals, exist through practice in the legislation, except for the Fugitive Offenders Act, which was under a separate piece of legislation. That is not to say that there is no merit in attempting to provide a uniform code that deals with all of these different kinds of extradition, but rather to say that there must be close attention paid to the impact of this bill on existing treaties. As has also been noted, the way in which extradition works under the existing act, and the reason it has lasted as long as it has, is that, in a sense, it is almost a shell.
In section 3, you have the ability to incorporate by reference the individual bilateral treaties between countries. In particular, the treaty between Canada and the United States must, on a pragmatic basis, be recognized as fundamental, given basic geographical realities. One need only look at the cases in this area to realize this treaty defines much of the extradition practice in Canada. In my view, if the bill is passed, it may cause problems in relation to situations where there is a conflict between the bill and the Canada-United States treaty, and for that matter, other treaties. There is also a need to be conscious of the significance of the death penalty and decisions such as Ng and Kindler in this context.
I should be honest with you and say I disagree with the previous witness on this. I think the provision relating to the death penalty should be left as it is. The reality of extradition in this country is that, apart from the extradition process, most of the relevant provisions affecting extradition are contained in individual bilateral treaties. Under section 3 of the existing act, the treaty governs in case of conflict. There are 49 such treaties, and it is no exaggeration to state that the most significant is that between Canada and the United States. Our shared border has meant that the majority of extradition cases have been between Canada and the United States. To make a very important, pragmatic point, I go on to say that we have specific ad hoc agreements, and you can look to R. v. Parisien as an example of that in the case of Brazil. Yes, there have been declarations under the schedule of the existing act with respect to a number of countries. Yes, there is the Fugitive Offenders Act. Yes, we have international obligations, but these do not make up the substantial amount of jurisprudence in this country when it relates to extradition.
My major concern, in terms of this portion, is in terms of the existing 49 treaties. Does Bill C-40 protect the terms of these treaties, especially that between Canada and the United States? In my view, there are uncertainties on this point, and it should not be underestimated how important this is. Clause 10(2) of the bill addresses the case of conflict between a specific agreement and Bill C-40, but there is no corresponding clear provision in relation to our 49 existing extradition agreements. The bill does, on occasion, include the phrase "subject to an extradition agreement," but this does not fully address what I see to be a problem.
Let me give one very specific example.
Under the Canada-United States treaty, article 11 provides for the arrest of an individual pending the receipt of an extradition request in the following terms:
In cases of urgency, a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request of extradition through diplomatic channels.
In effect, this is a very commonly used provision because of the ability to move quickly across the border. Clause 12 of Bill C-40 very clearly provides that nothing may happen at the level of arrest until the minister receives the request for extradition. There is no statement in this clause that these provisions are subject to extradition arrangements that provide otherwise. In other words, there is nothing in the bill that allows for the process as set out in article 11 of the treaty. The consequence of this under international law, and Canadian constitutional law, would seem to me to be that article 11 is potentially inapplicable as being contrary to the legislation implementing the extradition arrangement. This may appear to be a small matter in a sense, but it addresses the fact that before this bill is enacted, there must be a careful scrutiny of its provisions to ensure that Canada is not in breach of its treaties.
It is worth referring very briefly to the death penalty and requests for assurances. It has been suggested to you, by Amnesty International and by the previous witness, that the minister should always request such an assurance. It is my view that this would be a mistake. It is likely quite correct -- and I would agree with this statement -- that the death penalty in Canada itself is contrary to section 12 of the Charter. Notwithstanding that, there is a significant distinction to be drawn based on the reality of our proximity to the United States. The reality is that if the minister is forced to demand assurances in relation to the death penalty, the direct consequence will be that Canada will become a haven for fugitives. I do not believe this is simply a fear. In my view, it is naive to suggest that a future Ng or Kindler will not come to Canada, if only to ensure escape from the death penalty. In other words, I do not think that the problem is at the level of whether or not we can continue to request those assurances before the person is returned to the United States. The problem occurs at an earlier point in the process. To ask for those assurances assumes that the criminals in the United States are not intelligent enough to figure out that if they cross the border and come to Canada, they will, at the very least, escape prosecution on use of the death penalty. I think that would be incorrect.
If I may end my comments in this way, I suggest that the committee get representations from the Department of Employment and Immigration in particular. If you go back and look at some of the decisions under the deportation proceedings during the period when the Ng case was being decided, you will find that there were deportations of persons who were sought for the death penalty in the United States. In other words, there is a question about this, and Sharon Williams at York University has written quite a lot about the notion of "disguised extradition." You would simply be putting the process into, perhaps, deportation of individuals. I think it is naive to imagine there will not be persons who come to Canada because of the refusal to request assurances.
The Chairman: I understand that the person you mentioned at York University was invited to appear before us but was not available.
Senator Beaudoin: Thank you, Dean La Forest.
I have two questions. The first one is on the shift from tribunals to the minister.
You express some concern about that in the sense that under section 7 of the Charter, the protection of liberty may be reduced in such a way that it would not be acceptable under section 1 of the act. Is that your argument?
Ms La Forest: That is my argument. To be quite precise about it, I am suggesting that I agree very much with the previous witness. I do not think he was speaking in self-interest. In particular, the evidence provisions are problematic if you assume a fugitive to be a Canadian national. It does not matter whether or not it is a Canadian national, but it makes it easier to see the point.
The notion of surrendering to a foreign state using evidence that is not admissible in a Canadian court is very troubling. The existing process has been accepted by the Supreme Court of Canada as being consistent with fundamental principles of justice.
There is a reasonable argument to be made that, once you accept evidence that is not admissible under Canadian law to extradite a Canadian national to a foreign country for prosecution, you have changed the process that has been recognized and accepted by the Supreme Court of Canada. That opens the door again to that argument.
Senator Beaudoin: The preceding witness made a presentation that was close to your argument, I think. It is the same preoccupation.
Ms La Forest: It is exactly the same argument.
Senator Beaudoin: You spoke about the death penalty again. You said that it is against section 12 of the Charter. Is that your opinion?
Ms La Forest: To be blunt, I do not think it has been decided that it is contrary to section 12. In my view, it probably would be in the Canadian context. In other words, if the death penalty was instituted by Parliament, I do not think it would survive a challenge under the Charter.
Senator Beaudoin: You are not alone. Many jurists take that view, too.
Let us say that is the case -- that it is against section 12. What do we do? Do we keep the law as it is, or do we set aside the discretion, as the previous witness suggested, and render it mandatory to have some kind of agreement with the Americans? Would you favour the setting aside of the discretion and the substitution of an obligation?
Ms La Forest: That is a good question. As I think about it, an abstract answer comes to my mind, in the sense that what works about the present extradition processes is that so many of them are individual treaties.
If you had a provision in the statue where it was quite clear that in the event of a conflict, the treaty prevailed, you could, for example, leave the Canada-U.S. treaty and its provisions relating to the death penalty as they are written and potentially remove that discretion vis-à-vis the act at large.
That is a difficult question because this book was written before the Ng decision. At that time, I may have been in agreement with the previous witness and with Amnesty International. However, what has come to me in terms of my later thinking on the subject is the pragmatic fact of our relationship to the United States. We must recognize that the United States has the death penalty. That being the case, what do we do with the provision in Canada that says, "We do not extradite for the death penalty; we will request assurances."
I honestly believe that it is naive to think that criminals are not clever enough to sort that out and come to Canada precisely for that reason. If I am wrong about that, it is to the extent that only the really smart criminals will come to Canada. Frankly, they worry me more than the stupid ones. I will put it that way.
We are dealing with a very pragmatic problem here. In the United Kingdom, the act is quite similar in some respects to what is being suggested in Bill C-40, but the U.K. is an island. We are close to the major state in the world that has the death penalty and we must realize that. That is my concern.
Senator Joyal: I wish to continue with that issue because it raises a fundamental question of legal philosophy. If we follow your reasoning, then for the sake of not becoming a haven, we will recognize the validity of the death penalty in any country. I am of the opinion that when you establish that human life is of paramount value, whatever crime the person has committed, then you must be logical in your assumptions.
I tried to reconcile your position with the basic philosophical values at stake. I do not want to be blunt, but I have the impression that you turned the corner somewhat on that by saying, "We do not want to become a haven for criminals. If there is a death penalty in their country, then they should face that penalty and that is it." That is easy to say. I am not saying that you are wrong, and I am not saying that your position is indefensible. However, as a country, we have enacted a Charter, and you stated that the Charter would even override legislation in the Parliament of Canada -- and here I include both chambers. That is to say, if we were ever to reconsider the death penalty, it would be overridden by section 12 of the Charter.
This is such a fundamental value that we as Canadians hold that we should be congruent with that. When you say, "Because he has committed a crime in the States he should not enter Canada," I understand the feeling of uneasiness that you described. We can think of a scenario where a serial killer from the United States could enter Canada, and so on, but this is not the point. The point is, what are the fundamental values that we have in this land and where do we hold them? Do we hold them within our borders but not abroad? I believe that we want to apply a certain level of values wherever they are at stake. This is what Canada is recognized for throughout the world.
Let me give you another example. We do business with a country where there has been a serious breach of freedom of expression. I will not name any specific country. The Minister of Foreign Affairs goes to that country and says, "That is set aside. We do not mind. We will do business with you." You know the uneasiness that many Canadians feel in that regard. They feel that if you have a set of principles, you must maintain them.
I totally respect your reasoning on this, but I am not sure that it fulfils my ideals about the set of values that we try to preserve in this country.
Ms La Forest: I will take the easy way out on this and answer it in two ways.
First, the provision relating to requesting assurances with respect to the death penalty has been accepted as being constitutional under the Canadian Charter of Rights in both the Kindler case and the Ng case. I respect your position vis-à-vis the philosophical difficulty because I share it, but it has passed the muster of the Supreme Court of Canada.
There is another aspect that worries me and I alluded to it in my opening remarks. I will try to be clearer about it, but I must be somewhat cautious in my response to this question. Under section 27 of the Immigration Act, when someone enters Canada from the United States, there is a provision that allows the deportation of that person, or the turning back of that person at the border, if there is a sense that that person will engage in criminal activity. If you do not have the protections of the Extradition Act and some degree of discretion to the minister, there may be a movement to a process where there are very few protections. That is to say, you could have someone crossing the border and that person is deported because he or she is likely to be someone who engages in criminal activity.
I am not an immigration lawyer. Ms Sharon Williams probably could have dealt with this question better than I can.
The prosecutor for the Americans was in fact sitting in at the decision where the person was deported. You can see that we may simply be, in respecting our provisions in this regard, shuffling this off to another process. As I understand the ability to review the minister's decision in that context, it is simply to determine whether or not there was an act of bad faith. That is a much more difficult process than challenging whether the assurances in respect to the death penalty were properly acquired under the statute, because of things such as the death row syndrome and other aspects that relate to cruel and unusual punishment.
In other words, the way this act is drafted also seems to me to leave a couple of places where the death penalty request may again be examined. As I said, you have a very broad jurisdictional provision. You add to that the evidence that may or may not be admissible in Canada, and then the return of a person to the United States, for example, to face the death penalty. I am not sure that the Ng or the Kindler case would be decided in the same way in those circumstances.
One of the things that worries me a little about this proposed statute as it has been passed by the House of Commons is that there are uncertainties where you may, in effect, be revisiting the same questions again, because this act does not deal with states on an individual basis, it deals with them at large.
The question of admissible evidence does not simply apply to civilian countries, as members of the Department of Justice use that term. As an example, it applies to the United States of America. You could use a hearsay affidavit now to essentially fulfil the requirements of an extradition hearing, then leave the jurisdiction question, which is barely examined by that hearing, left completely to the discretion of the minister, and surrender without asking for the assurances under the death penalty. I cannot imagine there would not be a judicial review of that decision and a reopening of the door on many of the questions that you are asking.
In fact, to be very direct and very honest with you, I share your concerns in terms of this provision. I am simply playing the role of ensuring that at least the pragmatic side of this is also considered in terms of that proposed section. It is not simply a question of codifying the Ng and Kindler cases. There is a real concern with that particular provision and I am sure that is why it has been included.
Senator Grafstein: I was about to ask you, before you gave your testimony, about your relationship to another La Forest whom I know, Gerry La Forest. What is your relationship to him?
Ms La Forest: He is my father.
Senator Grafstein: Chairman, you know that Gerry La Forest is one of Canada's most distinguished teachers of law, as well as a judicial figure, and obviously the apple does not fall far from the tree.
I welcome you. As I say, your father was a colleague and a superb legal figure in this country.
Senator Bryden: If I may just add to that. If members of the committee sometimes wonder why I am as learned in the law as I am, it is because Mr. Justice La Forest was at one time a teacher at the University of New Brunswick law school. He taught me administrative and international law.
The Chairman: You may take all that as a compliment.
Senator Grafstein: I would like to turn to two issues, since I do not quite understand your proposition, or what specifically your recommendation is, with respect to the aspect of the treaty that applies to the United States, because in truth the majority of the cases that we have are between Canada and the United States. If one did an analysis, they would be the vast majority. The others tend to get headlines, but the day-to-day cases are Canada-U.S.
What are your specific recommendations in terms of amendments to the provisions that would make you more comfortable? I understood you in policy terms; however, I want you to be more specific with us as to where there is a concern.
Ms La Forest: I will be really clear about this. I will read section 3 of the existing Extradition Act and you will see exactly what I mean. That provision says that:
In the case of any foreign state with which there is an extradition arrangement this Part applies during the continuance of the arrangement, but no provision of this Part that is inconsistent with any of the terms of the arrangement has effect to contravene the arrangement, and this Part shall be so read and construed as to provide for the execution of the arrangement.
In other words, this section does two things that I do not find in Bill C-40 and that makes me a little nervous. It is simply a question of drafting that I am getting at here.
Senator Grafstein: That is one position. What is your other concern?
Ms La Forest: Let me deal with them both. The conflict one really concerns me because there are provisions in treaties that are different. The second one is that I am not sure, frankly, that Bill C-40 even implements some of these statutes. It is not clear.
If you read the proposed section 2, the definition of an extradition arrangement, it speaks of when an extradition arrangement is entered into and is in force, and then there is a later provision, proposed section 8, that talks about publication.
Senator Grafstein: I understand that. I did not quite understand your testimony but now it is clear.
Let me turn to something that is of concern and this was raised by the previous witness, Mr. Slansky. It is a very interesting proposition that you refer to as well, and that is the minister's limitations in terms of what constitutes a political offence under section 46(2). You have a concern, and Mr. Slansky, on behalf of the Criminal Lawyers' Association of Ontario, has a concern. He gives us an example that is quite interesting, because sometimes examples are better for our understanding than reading the specific clause.
He says that if Nelson Mandela had escaped to Canada from South Africa in 1964, this provision would have ensured that the Canadian government would have had the power to send him back and the courts would have been powerless to stop that. I assume, from reading the preamble to that conclusion, that because we have exempted political crimes, eliminated political offences from extradition, we are in effect increasing the power, if you will, to extradite without appropriate defences. I believe the conclusion of the Criminal Lawyers' Association of Ontario is that instead, one should allow the common law, which has worked at this, to distinguish between those offences. As he says here:
The common law has been able to distinguish between the legitimately political confrontation, and the illegitimate act of violence. The political offence exemption has been applied in respect of many violent offences, including murder, in recognition that the political process of many countries is a violent one.
Give us some help on that, because it is an interesting position. One can turn that around and say, in effect, that political offences might be more broadly construed and have a counter-productive effect. Is the glass half empty or half full?
We have heard of cases on both sides. We have seen where offensive political offences have been used as a defence, and the courts have gone in a certain way, and then we have seen it happen the other way. Here, I assume that the government has eliminated -- and I do not know the answer to this; we will find out -- the political offences exemption in order to, in effect, use its discretion without having a court overview to deal with this matter.
I am not sure that as a question of public policy I agree with that, and maybe I will accept your position and that of the Criminal Lawyers' Association of Ontario that this should be renovated. Give us your views on that.
Ms La Forest: I have a note beside subclause 2: When there is a rebellion, people get killed. I agree with the previous witness. Maybe I can help by putting this in context, based on my knowledge of the individual treaties that have been enacted in recent years. This provision, as it stands, is quite close to what actually exists in some of the more recent treaties. In the extradition treaty between Canada and India, which I believe was signed around 1989, you will see something almost exactly like this. In earlier agreements, you would have seen a reference to political offences in terms not very different from those in the existing act.
I have a problem with the fact that in many of these cases, these provisions are writ at large, and they apply across the board. However, when you look at the case law, the practical, and, I think, right answer, is that this section incorporates a style of drafting that has occurred in recent treaties. Yet, in the case law under political offences, both in Canada and the United Kingdom, you will see very few cases where the court overextended itself in terms of applying this particular exception as a defence. If you read the portions of the book concerning this issue, you will see that it is quite narrowly utilized. Like the previous witness, I question the need for such a narrow provision.
Senator Grafstein: You would rather rely on the common law?
Ms La Forest: Yes, I would.
Senator Grafstein: As opposed to exempting the provision completely, because it effectively wipes out the common law protection?
Ms La Forest: If you think about it in realistic terms, extradition is for serious crimes. I look at subparagraphs (a) through (f) and I am hard pressed to think of what could possibly constitute a political offence that the minister shall refuse. There is no discretion at all. I agree with that. It is overly broad in terms of not allowing any involvement of the courts. It is also liable to come out again at the other end. It is one of the points I made about judicial review. You will not see it at the extradition hearing, where we have seen many of the cases to date under the Charter, but at the level of judicial review. Essentially, backlogging the problem only delays the minister's decision.
Senator Bryden: I agree with your position in relation to the death penalty remaining discretionary as a practical matter. It was brought to mind again this morning when I looked at the headlines on the front page of either The Ottawa Citizen or The Globe and Mail. Someone writing from the U.S., a learned person obviously, said that Canada -- and I think this was the headline -- "Canada is known for good beer and light sentences." I do not think we want to be a place where people can escape the worst penalties of their own country. I have difficulty with the minister wearing both hats in administering the same act. She acts as Minister of Justice, authorizing herself as Attorney General to take certain actions, and then, again as Minister of Justice, she also plays a quasi-judicial role in reviewing the actions that she took as Attorney General. When I inquired with the people in the Department of Justice about this, they separated the two goals. However, if you look at the transcript, they were separating them at the prosecutor and the functionary level; but in our parliamentary system, the person responsible for the administration of the act is the minister and Attorney General.
Do you have any difficulty with that? Are you aware of other situations, other acts, in which the Minister of Justice and Attorney General play both roles in administering the same act?
Ms La Forest: I can answer the second question very quickly. No, I am not. As to the first one, I do not find it particularly problematic. It has been the practice, as the representatives have suggested, that prosecuting the offence, getting the request and proceeding with it, be done at the level of Attorney General, while the decision to review is effected in a separate role as Minister of Justice. I am not troubled by that, because that has been the practice in this particular process for as long as I can remember.
Senator Joyal: In answer to the comment made by my colleague, Senator Bryden, about the newspaper headlines indicating that Canada is well known for its good beer and light sentences, I would like to add that Canada has a much lower crime rate than the United States. There is no comparison at all, so maybe sometimes light sentences are, on the whole, not that bad for society, provided that they are tempered with beer, but that is another discussion. Our society has a different philosophy from that of the United States. This is very important insofar as criminal law is concerned. We cannot mix those things as easily as newspaper headlines can because of the manner in which they usually treat reality.
According to your colleague's statement, the bill would throw open the gates to the question of constitutionality on points already reviewed by the Supreme Court of Canada. Do you agree with all of them?
The Chairman: I am sorry. I did not hear the question.
Senator Joyal: We have heard from the previous witness, Mr. Slansky, that many of the current provisions in the bill would throw the gate open to questions about the constitutionality of elements in the laws that have already been decided on by the Supreme Court. In his answer, Mr. Slansky listed a series of points that, in his opinion, would be reopened according to the jurisprudence. Do you agree with all the points in that list of issues?
Ms La Forest: I am really committing myself here.
I honestly do not remember all the points he made but I do agree with the proposition that, in general, what is being done here, particularly by identifying and outlining a variety of ministerial powers to exercise or not exercise discretion to surrender, will result in a re-examination of issues under the Charter. The one that struck me that he did mention, that I immediately agreed with -- and I mentioned it in my own opening remarks -- is what is described as the rule of specialty. The Minister of Justice has a discretion to surrender a person under Bill C-40 even for crimes which were neither part of the original extradition request nor the judicial hearing. I think that will very quickly open the door to questions on whether that is in accordance with section 7 of the Charter on fundamental justice.
Senator Grafstein: How do you stop that? What can we do to prevent the requesting party from extraditing under a certain set of charges and then changing those charges once that person is within their jurisdiction?
Ms La Forest: Comity. That person has been surrendered by Canada for a specific purpose, to answer for a particular crime. To put it quite practically, if a country were able to completely refashion the charges once the person was returned, there would be virtually no point in having an extradition process. What is the point of going through an extradition hearing here and then having the person subject to prosecution for a different crime?
Senator Grafstein: The person goes to the extraditing party under a certain set of rules that set a low penalty, not the death penalty, as an example, and in fact they decide, because of subsequently acquired facts, that they will charge that person for the death penalty. As a question of comity, that accused person then has the right to demand return to Canada because the higher charges, which are offensive to us, are now in play? You may be right but I do not quite follow that. That is why we have to be cautious about it.
Ms La Forest: The point is that when you enter into an extradition request to a country, you are asking them to exercise their territorial jurisdiction to take that person and put them through an extradition hearing process and a surrender, but it has to be in accordance with the Charter before returning them to another state. The ability to open new offences or deal with different matters has to be very limited. Otherwise, it significantly impacts on the point of the process to begin with. There should be an understanding that it is subject to a condition that a person can only be prosecuted for crimes for which they are surrendered.
Senator Joyal: This point is very important because we discussed that before in a previous hearing. Do you agree with Mr. Slansky on the issue of double criminality?
Ms La Forest: I do not remember exactly what he said on the point of double criminality, but I guess my own response on that under Bill C-40 as it is, and it is something I was thinking about last evening, is that through cases such as McVey, almost 100 years of misapplication of the rule of double criminality has now been put to bed. In effect, the sole purpose, at a pragmatic level, of the double criminality principle is simply to ensure that, before you surrender someone to another state, it is for something that is considered to be a serious crime in Canada as well as in that state. It may well be -- and it makes sense -- that whether or not it is serious to that state is reasonably a matter for the requesting state and for the Minister of Justice. Therefore the extradition judge should really be left to consider the question of whether or not, if the conduct occurred in Canada, we would consider it serious, because then have you this double sense of a serious crime.
What troubles me is that the provision relating to jurisdiction is so broad in this bill, in the sense that it removes that question entirely from Canada, that I think to some extent, the existing test of double criminality has to incorporate within it a sense of something that is serious in Canada almost as an underlying assumption.
That is, it should be something we would prosecute for if all the circumstances were the same. It appears to me that that is removed by this bill through completely removing the ability to look at the jurisdiction question. I am not so troubled by the test of dual criminality as it exists in clause 3 of Bill C-40 because it is quite close to the jurisprudence as it evolved through the State of Washington and Johnson and then the McVey case. What troubles me more is the jurisdictional point.
I would like to give you an example that came to mind, and I am choosing this example in particular because of the Maesrk Dubai case and because Romania was claiming jurisdiction over persons on the basis that the victims were Romanian nationals. Let us say you had a husband and wife, one a Canadian national and the other a Romanian national, who are estranged. The Romanian national comes to Canada and there is a domestic dispute in the course of which the Canadian national wife kills the Romanian national. Under this provision, the Romanian state could request the return of that person. The extradition judge cannot look at all at the question of whether or not there would properly be any form of territorial jurisdiction. You are left to go through the whole extradition proceeding, and the only point at which it can become a doubtful issue is at the point of the minister's discretion, and it is a "may refuse surrender" case where all the issues are related to the territory. My own feeling about the jurisdiction clause, in other words, is that the Maesrk Dubai case set off a lot of alarm bells, but if in fact you look at international jurisprudence such as the Steamship Lotus case, passive personality jurisdiction, which is based on the nationality of the victim as opposed to the accused, is very rarely exercised. It is used primarily in extreme cases such as crimes against humanity, and we do have that jurisdiction in the Criminal Code.
There are cases where we protect Canadian nationals when they are victims of crime. The example of diplomatic personnel comes to mind or cases where Canadian nationals were the victims of a war crime. However, it should only be for very serious offences, and the question that I think should be asked is: Should we be potentially extraditing Canadian nationals to foreign states in circumstances where Canada would never exercise criminal jurisdiction?
At one time, it would have made sense to think of jurisdiction quite broadly because there were quite archaic judicial decisions that talked about needing to define the gravamen of the offence and it had to be solely connected to a territory. However, after recent decisions of the Supreme Court of Canada, beginning with the case of Libman in 1985, all you need is a real and substantial connection to the territory in order to effect a territorial jurisdiction for purposes of the Criminal Code. That is quite broad. There are also provisions in the code relating to crimes against nationals, in relation to war crimes, treason, and other serious crimes. I am troubled by a very broad, open situation with no questioning of jurisdiction whatsoever.
To come back to double criminality, my concern is that that double criminality test makes a great deal of sense when there is a basic underlying presumption that we are talking about something that Canada might well prosecute for. However, when you are broadening it far beyond that and leaving only the question of the minister's ability to possibly exercise her discretion if there is no conduct connected with the territory of the requesting state, then I think it is extremely broad.
Senator Joyal: Having obviously studied those issues at length, are your preoccupations deep enough to suggest to us amending the bill?
Ms La Forest: I see no reason for the provision relating to jurisdiction, for example. I see no reason for that being there at all. I do not think that there has been an overly abusive consideration of jurisdiction by the courts. Lepine suggests the courts should take a very narrow look at considering jurisdiction.
I am not entirely sure that the provisions on evidence would survive a Charter challenge. I appreciate the concern that civilian countries, in particular, obtain evidence on a different basis. I guess my response to that is that perhaps the amendment should be at the level of making narrower provisions to deal with those specific cases rather than leaving it so broad. Yes, I do see places for amendments to this bill.
The Chairman: Just for clarification, Dean La Forest, when you say civilian countries, you mean countries with civil law?
Ms La Forest: That is right, like France and Germany.
Senator Grafstein: Some of my questions have already been answered, so I will not go over that ground. However, I wish to return to the policy question that I raised with the previous witness. You have not quite dealt with that.
I would appreciate hearing your views, if you are able to give them, regarding Amnesty International's proposal for a two-track process, with one track for people charged with crimes under the jurisdiction of international tribunals, and another for those under the jurisdiction of adjacent or contracting states. What is your view on that as a policy issue?
Ms La Forest: I am on the side of the devil on this one. I neither agree with the position of the previous witness, nor that of Amnesty International, in terms of the two-track process. I will deal with the sovereignty point in a moment because that strikes me as being at the core of the argument.
I appreciate that, to be blunt, Canada's ability to prosecute persons for war crimes has not been very good. Having said that, I wish to address the surrender of a person from Canada to a tribunal, particularly when that person may well be a Canadian national. This is not the case with the international ad hoc tribunals. This is a fundamental removal of a person's liberty and it must be done in a way that is consistent with section 7, according to a fair procedure.
Counsel has already suggested to you -- and I said that I do not agree -- that the extradition hearing is a rubber-stamp. I do not think it is. I think it is a fundamental way in which the individual rights of a person are protected before they are surrendered to another state, or in this case, to an international tribunal. I do not find the difference in the type of crime a compelling enough reason to remove those individual rights. At the policy level, that is what I would say.
In terms of sovereignty, as an international lawyer, I disagree with his analysis to some extent. A bilateral treaty between states is equally an act of sovereignty and should be able to be questioned. I do not think the Government of Canada should be able to release its sovereignty in ways that are contrary to the Charter of Rights. I do not think it should be able to do it on either a bilateral or a multilateral basis.
Senator Grafstein: You do not question the power, do you? That is to say, the government has the power to do that.
Ms La Forest: No, that is right. The government has the legislative power. I suspect that at some point it would give rise to Charter challenges and I am not so sure it would survive. I am not as sure as Mr. Slansky that it would survive a challenge under the Charter.
I also wanted to mention that, in the context of the ad hoc tribunals, those provisions relating to extradition are contained in the rules and procedures. I do not see those as being international obligations.
One of the arguments made was to the effect that there is an existing obligation to surrender without extradition. If you look at the statute for those tribunals, there is a provision in relation to cooperation and legal assistance. It talks about "surrendering without undue delay." Another provision in the tribunal statute talks about their ability to evolve their own rules and procedures. It is there, in a subsidiary form of legislation, where you see that ability to request a transfer without extradition proceedings. I do not see that as the release of sovereignty that it has been put forward as.
My own reading of those tribunals is that it does not currently exist. It may with the Treaty of Rome, but I have not had the time to look at that.
Senator Grafstein: We do not have that. Canada leads the way internationally in establishing tribunals and there is great acceptance in public policy that this should be done. Both of these are narrowly cast. They are not broader. We have not got to the broader one yet, namely the Treaty of Rome, but two narrow issues have been established. You find it difficult to accept Amnesty International's position that we have invested our public policy in that, namely, not to make provisions that meet Charter concerns, yet expedite that process. Is that what you are saying?
Ms La Forest: No. On a practical level, I am saying the opposite. If we forget Bill C-40 for the moment, if you had an amendment under which there could be extradition to the international tribunals, the existing extradition process requires identification and satisfaction of the rule of dual criminality. There may be questions about jurisdiction, but there is no question that the Criminal Code has provisions that refer to war crimes on what I would describe as the universal jurisdiction basis. I do not think there is much argument there.
I think that you will be faced with far more arguments and delays at the level of simply having a so-called "expedited process" that will be challenged after the fact as being inconsistent with section 7. Again, it is one of these questions of back-ending if you develop a narrower process. I am not so concerned about the section 15 aspect. I am more concerned with the basic section 7 right to a process that is consistent with fundamental justice.
If you have a two-track process, there will be delays in actually surrendering persons because the challenge will arise at the level of being inconsistent with section 7. However, if you have a "rubber-stamping process," and I repeat that I think it is more than that, then there is no reason why that person cannot be extradited to those international tribunals under the existing system without undue delay. That is my point. I certainly would not want to be seen as thinking that the international tribunals should not be assisted in every way possible, but I do have a fundamental difference with it.
Let me put it this way. Canada should lead the world in terms of human rights. I absolutely agree with that. However, that includes leading the world domestically as well as internationally. An expedited process that is inconsistent with our own Charter provisions is problematic for me. That may be the real problem. I think you need to be consistent at both ends.
The Chairman: Thank you very much for coming here today. This has been a valuable discussion and we will have many questions for the minister.
The committee adjourned.