Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 63 - Evidence
OTTAWA, Thursday, March 18, 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 11:35 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session. I should like to welcome all of you, including our television audience, to Room 257 in the East Block.
We are fortunate to be able to meet in such a beautiful room to hear the views of Canadians on legislation before the committee. This room was established especially for the G-7 Economic Summit that was held here in July 1981. It was decided to preserve the room 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, which 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 next day. The bill received second reading on December 10, 1998, meaning that the Senate has 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. Yesterday, we heard from the Criminal Lawyers Association of Ontario and Dean Anne La Forest from the University of New Brunswick. Today, we are delighted to hear from the minister responsible for Bill C-40, the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada.
Once the committee has heard its witnesses, there will be clause-by-clause consideration of the bill, at which time the committee will decide whether to pass the bill as is, recommend amendments, or recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
Thank you appearing before us today, Madam Minister. We look forward to your presentation, following which we will open the floor to questions from senators.
The Honourable Anne McLellan, P.C., M.P., Minister of Justice and Attorney General of Canada: Good morning, honourable senators. It is a pleasure to be here. I appear before you today on behalf of myself and the Minister of Foreign Affairs, the Honourable Lloyd Axworthy.
[Translation]
This important bill proposes a major reform of Canada's extradition legislation. It replaces laws that are over 100 years old with an extradition system that is efficient, complete and modern, tailored to the needs of the 21st century.
[English]
Our government is determined to live up to Canada's obligation as a member of the international community to work together to battle the ever-growing threat of globalized criminal activity. To do so, we must have effective tools which permit cooperation between states and which bridge the differences between legal systems.
Many of Canada's international partners, including our closest allies, have expressed grave concern over our current extradition process for its inflexibility and its inadequacy in the face of modern crimes and criminals. In a world of easy and rapid movement between borders, there is a real danger, under our present laws, that Canada will become the country of choice for criminals seeking to shield themselves from arrest and prosecution. This government will not and cannot countenance that. Canadians will not countenance that. Thus, the Minister of Foreign Affairs and I view Bill C-40 as critically important.
Bill C-40 is important as well because it will put Canada in compliance with the United Nations Security Council resolutions establishing the international criminal tribunals for Rwanda and the former Yugoslavia. According to these resolutions, we have to provide assistance and surrender fugitives, if so requested. Currently, we would be in breach of our obligations if persons sought by either tribunal were in Canada and we had no mechanism available to arrest and surrender them for trial.
As you will have heard from several witnesses, our current extradition law does not allow the flexibility needed to extradite a fugitive to a tribunal. Only state-to-state arrangements are permissible in our law, which puts Canada in breach of its international obligations. Bill C-40 addresses this.
I should like to emphasize a few areas that I know are of particular concern to this committee.
You have heard testimony to the effect that Bill C-40 should be amended to eliminate ministerial discretion in the case of extradition to face the possible imposition of the depth penalty, requiring Canada to refuse extradition in all such indications unless assurances are provided. I and the government strongly disagree with that suggestion.
Bill C-40 preserves the discretion of the Minister of Justice to decide in each case whether to seek assurances from the requesting state that the death penalty will not be imposed or, if imposed, not carried out. The Supreme Court of Canada, in the Kindler and Ng cases, found such a discretion to be constitutional. This approach had been incorporated in the proposed legislation for very practical and serious reasons. If Canada, by law, is required to seek assurances against the imposition of the death penalty in each and every case, this country would quickly be identified as a haven for those charged with the most serious and heinous crimes -- murder being the obvious example -- who seek to avoid the rigours of the law of the state where the offence took place.
Let me make it clear that we are talking about individuals alleged to have committed the most horrible crimes. The proximity of the United States, where the death penalty exists in many states, makes this a very real and pressing concern for us. By eliminating ministerial discretion and mandating assurances, we would be giving murderers seeking to escape the death penalty a very strong incentive to come to Canada.
We must also remember that, if the foreign state refused to give assurances that the death penalty would not be sought, Canada would have no choice but to release that fugitive, accused of the most serious of crimes, into our community.
Amnesty International's position is predicated on the foreign state always agreeing to give assurances. This is, to say the least, highly optimistic, and may even be impossible if the death penalty is mandatory for certain behaviour. For these reasons, it is important that the minister's discretion in this area be preserved.
The next issue that should logically be addressed is one of the central components of the proposed legislation -- the record of the case evidentiary scheme. Canada should not be a haven for murderers and cannot be a haven for fugitives because their extradition is made unduly difficult, if not impossible, by rules out of step with those used by most other key allies and partners. That is the context for the proposed new approach.
Currently, a state seeking extradition from Canada must produce sufficient evidence such that if the alleged conduct had occurred in Canada the person would be committed to stand trial. In addition -- and this is the important change -- that evidence must be produced in a form consistent with Canadian evidentiary rules. This means that states must produce first-person affidavits, which contain no hearsay, sufficient to meet the Canadian legal standard. Complex cases may require hundreds of such affidavits. My officials can provide you with examples of cases in which we have been unable to extradite because of the complexity of these rules.
We have heard again and again from those many countries in the world with different legal traditions, where the concept of affidavits and hearsay are unknown yet with legal systems we respect, how enormously difficult and in some instances impossible this task can be.
Practice demonstrates the problem. Generally, fewer than 10 per cent of requests from countries other than the United States result in surrender following extradition proceedings. That does not even take into account the states that are discouraged by the onerous hurdles imposed by our current extradition law and do not even initiate an extradition request.
While the Criminal Lawyers' Association may be of the view that the current system is functioning effectively, their assessment is based solely on those cases that actually come before the courts and not on those that never reach the public domain because a state cannot or, by choice, will not meet Canada's evidentiary requirements.
The problem is not restricted to states that have a civil law system. Even in the case of the United States, we hear repeatedly how difficult it is to obtain extradition from Canada. American authorities have noted that, in the case of telemarketing fraud and other forms of complex fraud, in particular, our cumbersome extradition law is being used as a shield by those who choose to do that kind of business in Canada. In other words, we are seen as a place from which to organize and carry out these kinds of crimes because the extradition process is so cumbersome that foreign states do not even bother to seek extradition. Is that the reputation Canada wants in the new global world?
Bill C-40 addresses this difficult problem in a balanced way. Rather than eliminating the requirement for the production of evidence, a path taken by some countries, Australia being one example, under the proposed legislation evidence sufficient to meet the Canadian standard for committal for trial would still have to be produced. However, that evidence would no longer have to be generated in a form that strictly complies with domestic Canadian evidentiary rules.
I want to reassure senators that the standard for committal remains the same. I hope there is no confusion about that. It is the form in which an extraditing partner presents its evidence to which we are suggesting changes, but a judge must still decide whether that evidence meets the standard for committal for trial.
Under the proposed legislation, the judge would admit into evidence documentation contained in a record of the case. The record could contain evidence gathered according to the rules and procedures followed in the requesting state. It may contain a summary of the evidence available, prepared by the appropriate foreign judge or official. The evidence may not be in the form of an affidavit and may be unsworn.
The objective is to accept the evidence in the form used by the foreign state, the extraditing partner. It will then be for a Canadian extradition judge to be satisfied that the evidence received in that form demonstrates criminal conduct under Canadian law and is sufficient to require committal for trial.
This record of the case would need to be certified by appropriate authorities in the requesting state and accompanied by assurances in relation to issues, such as the availability of the evidence, its sufficiency for prosecution purposes and its accuracy.
In our view, this aspect of Bill C-40 is a critical component to an effective extradition regime and one that appropriately balances effectiveness with adequate protections for the persons sought for extradition.
Let me turn to another matter. There has been testimony before you that was critical of clause 5, which deals with jurisdiction. In my view, that provision represents a significant improvement in Canada's extradition law, one that will reduce the possibility that this country can be a safe haven for alleged criminals. Actually, this provision will be vital for extradition to international tribunals, as they cannot exercise jurisdiction on the traditional basis of territory.
The basis upon which states take jurisdiction over offences does vary, as I am sure you are all aware. In Canada, we take jurisdiction over offences primarily on the basis of the territorial principle -- when the offence occurs on Canadian territory. However, in many civil law countries such as France and Spain, jurisdiction is often exercised on the basis of the nationality of the alleged offender, regardless of where the offence occurred. There are also some states, fewer in number, that will take jurisdiction over an offence where the victim is a national.
Under Bill C-40, Canada will have the discretion to extradite for offences committed outside the territory of the requesting state or entity, and to do so even though Canada could not exercise similar jurisdiction in the same circumstances. By introducing this discretion into the extradition law, Canada will be in a position to decide whether or not to extradite on the basis of the circumstances of the particular case and the interests of justice, as opposed to being limited to those instances where there is a technical matching of jurisdiction.
Perhaps the best explanation of this is by example. In the recent Maersk Dubai case, Romania sought the extradition of the captain and crew members of the ship, who were alleged to have forced Romanian stowaways overboard on the high seas. I know this is a case about which all senators are familiar. It was in the news again this week.
Under Romanian law, jurisdiction over the alleged offence was claimed on the basis of the nationality of the victims; Romanian citizens who allegedly were thrown overboard. Canada does not exercise jurisdiction over the offence of murder on the basis of nationality of victim, so there was no corresponding jurisdiction. With the proposed section 5, extradition will be possible in those circumstances. Without that section, Canada would be precluded from extraditing to Romania in a Maersk Dubai situation.
We can, unfortunately, anticipate more of those kinds of situations, not the specific fact situation but more of those difficult multi-nation situations involving nationals and victims and questions of jurisdiction as we become an ever more globalized community.
I should like to emphasize that Bill C-40 does not sacrifice protections and safeguards for the persons sought in order to achieve a goal of a more effective process. I believe quite the contrary -- this bill gives legislative recognition to safeguards and protections for the persons sought. By example, the bill details the procedures for arrest and bail, which were never included before.
The bill also maintains the detailed and important procedures for the executive phase of the extradition process. As you know, during this phase, the Minister of Justice must personally decide whether or not to order surrender. Unlike the current legislation, the proposed law sets out the grounds of refusal, which will apply to all requests for extradition, and details those that will be applicable, unless a treaty provides otherwise. This will make the process much clearer for the persons sought for extradition.
I am aware that some of you have made comments concerning the role of the judge and my role in relation to the application of safeguards. It is important to understand that the reasons for refusal outlined in proposed sections 44 to 47 involve our international relations and often require considerations of the nature of the foreign judicial systems involved.
For those types of issues, it is the executive that is in the best position to pursue questions with the foreign state and to assess and decide the issue. The Supreme Court of Canada has, on several occasions, recognized this principle. Thus, I believe that it is appropriate for a Minister of Justice, in consultation with a Minister of Foreign Affairs, to make decisions on issues that impact directly on the extradition and general relationship between ourselves and another state.
However, it is important to note that I consider these safeguards only after a Canadian judge has decided that there is sufficient evidence to commit the person sought for surrender. Subsequently, any decision that I make can be reviewed by a Court of Appeal and, obviously in some instances, the Supreme Court of Canada. In other words, the decision made by the Minister of Justice is not made in a legal vacuum. It is based on information offered by the fugitive, as well as the foreign state, and it is reviewable by Canadian appeal courts.
I should also like to stress, as I understand Professor La Forest noted, that the executive phase of the extradition process, which this bill maintains, is not in any way a summary or rubber stamp procedure. Before any decision is made, the person sought has an opportunity to make submissions to the minister on any point relevant to this decision. I can assure you, having reviewed many extradition cases, that those submissions, as well as all of the facts of the case, are carefully considered in each case before a decision is taken.
As I noted earlier, one of the very important reasons for Bill C-40 is to bring Canada into compliance with the Security Council resolutions that established the tribunals for the former Yugoslavia and for Rwanda. You have heard submissions from Amnesty International which suggest that this bill would be in contravention of our international obligations. I believe those views to be unfounded, and I am confident that Bill C-40 will bring Canada into compliance with its obligations to the Security Council with respect to the tribunals for the former Yugoslavia and Rwanda -- where, in fact, as I have already indicated, we were not in compliance before requests were made to us for extradition.
Bill C-40 has attracted strong support from the current Chief Prosecutor, Louise Arbour. Despite what may have been suggested, it is clear that Canada's obligation, as mandated by the Security Council, is to take the necessary measures under domestic law to implement the provisions of the UN resolution and the statute of Rome, including the obligation of states, to comply with requests for assistance or orders issued by the tribunals. Thus, if the court submits a request for the arrest and surrender of a person in Canada, for prosecution, Canada must be in a position to arrest that person and surrender him or her to the tribunal.
However, I stress that nothing in the Security Council resolution or statute of Rome precludes a state from using an extradition process to meet this obligation. While the guidelines developed by the registrar, after the resolution was passed, do indicate a preference for a process other than extradition, the guidelines are not obligatory and they do not form part of the resolution or statute. Indeed, this is evidenced by the fact that the United States, a permanent member of the Security Council, instrumental in the drafts of the resolutions, itself, uses an extradition process to surrender to the tribunals.
Amnesty International officials proposed that there should be a different process for surrender to tribunals. In my view, that approach is unnecessary to meet our Security Council obligation and, as well, dangerous. It has the potential for serious Charter problems. For example, the Supreme Court of Canada, in upholding the constitutionality of the extradition process, has noted in several cases the importance of the judicial hearing in extradition. If we were to opt for a different process in this regard, it may well offend constitutional principles.
For this reason, given that there is no need to adopt a different process for surrender to the tribunal, it seems imprudent to do so where there are serious concerns about the constitutionality of such an approach.
At the same time, two critical features of this bill are the new evidentiary requirements and the adoption of a modern, no list approach to assessing dual criminality. Thus, while a court in Canada will still consider evidence and dual criminality in cases involving the tribunals, the application of these new procedures will not impose an unnecessarily complex or unduly time consuming process on the tribunals and their work.
In our view, Bill C-40 strikes an appropriate balance in relation to the existing tribunals. It will put Canada in compliance with its obligation in a manner that affords protections to the person sought and is consistent with Canadian constitutional requirements.
I should like to comment briefly on the proposed amendments to the Immigration Act in Bill C-40. These amendments were designed to eliminate duplication and delay when the extradition and refugee claim processes overlap. The scheme will only apply to situations where the person sought for extradition is wanted for a more serious offence punishable by 10 years or more. I ask whether someone wanted for a serious crime should be able to hide behind a parallel process for the purpose of delaying the fair resolution of these serious charges.
Most important, the scheme maintains a full and fair procedure for the consideration of the refugee issue in compliance with the requirements of the refugee convention.
I must say, looking at these last two points -- and Amnesty International raised them -- I am struck by what might appear to be an inconsistency in the positions that they have taken. On the one hand, as I understand it, they suggested that where a person is sought by an international tribunal for prosecution as an alleged war criminal they would advocate that there should be only minimal protections and process accorded. I understand that their language was that he or she should be "fast tracked" out of the country. On the other hand, in the case of a person sought for extradition for an equally serious offence who claims to be a refugee, there can be no variation whatsoever from the detailed process for refugee determination set out in the Immigration Act, no matter what kind of duplication or delay that creates.
I would ask, quite seriously, what approach they would advocate where the alleged war criminal is also a refugee claimant. That is a very real scenario in this country today in the case of persons coming from an area torn apart by civil conflict. I will not go further, but we all know of the examples in this country where that situation can prevail or will prevail.
I will make one final point. Clause 46(2) would legislatively narrow the concepts of political offence and offence of a political character. You have heard testimony that this restriction is unnecessary and that the definition of these terms should be left to be determined by the common law. I am not prepared to leave the issue of the extradition of terrorists to be determined on a case-by-case basis under the common law. This is an issue on which we, as parliamentarians, must speak and must take a stand.
In conclusion, with the passage of Bill C-40, Canada will have in place a comprehensive and modern scheme for extradition consistent with our commitments to the international community. We will be in a position to comply with our international obligation with respect to the existing war crime tribunals. On behalf of my colleague, the Minister of Foreign Affairs, Lloyd Axworthy, we would urge you to proceed expeditiously with this bill, so that we can take this important step forward in ensuring that Canada is not a safe haven for any criminal.
Thank you very much. I look forward to hearing your comments and questions.
The Chairman: Thank you, Madam Minister.
Senator Fraser: Madam Minister, as you may be aware, another objection raised by the Ontario Criminal Lawyers had to do with clause 59, which says:
...the Minister may, if the request for extradition is based on more than one offence, order the surrender of a person for all the offences even if not all of them fulfil the requirements set out in section 3...
In other words, according to the criminal lawyers, this put in jeopardy the principle of dual criminality. What do you say?
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy Section, Department of Justice: Administratively, section 59 provides a measure of flexibility. It recognizes that in some instances an individual may be requested for more serious offences. For example, an individual who is requested for extradition for robbery may also be wanted for a less serious offence, perhaps breach of probation. While robbery would be an offence punishable by more than one year or two years, meeting the requirements of proposed section 3(a), the breach of probation offence, would not meet that requirement. Without proposed section 59, we could not surrender, also, for the offence of breach of probation.
With proposed section 59, we will be surrendering for the more serious offence of robbery. For example, since that person is being surrendered for that offence, we could also surrender for another offence that does not meet the basic penalty test but which would also be an offence under Canadian law. The minister has discretion in allowing for surrender for that lesser offence, if it is an offence in Canadian law and if surrender is granted for a more serious offence.
Mr. Jacques Lemire, Senior Counsel, International Assistance Group, Department of Justice: You have to include it, because you are only allowed to surrender someone if there is a promise that they will only be tried for the offence specified in the surrender order.
Ms McLellan: It does provide certain flexibility. We could extradite. One is dealing with a more serious offence, and there is a less serious offence involved in that circumstance. We do not want to deny the extra of the state seeking extradition, the ability to pursue that individual for the less serious offence, if in fact it is an offence at Canadian law.
Senator Grafstein: I consulted with my colleague Senator Bryden and we both agree that it might be useful if the minister and her officials could respond in writing to each of the positions put by Amnesty International and the Criminal Lawyers Association. I ask this because our time is constrained and some of these concepts are quite complicated, and they are drafting issues as well. This might be an easy way for us to review it. If we have further questions after this, we could come back, but that might allow us to then deal with policy questions as opposed to specific drafting issues.
Ms McLellan: We would be happy to respond.
Senator Bryden: Yesterday afternoon, we had with us Dean La Forest, who is a recognized academic expert in this area.
Ms McLellan: I know the Dean and have a high regard for her.
Senator Bryden: For the most part, I am reasonably satisfied, but I should like to quote to you and your people from her submission, on page 6. In the second paragraph it says:
Under Bill C-40, the matter of jurisdiction is addressed as follows: The extradition judge has no ability to consider the matter of jurisdiction. A person may be extra extradited to a requesting extradition partner whether or not any of the conduct occurred in the territory of the requesting territory and whether or not Canada could exercise jurisdiction in such circumstances. The only limitation is as at the Ministerial level and the Minister "may" refuse jurisdiction in circumstances where none of the conduct occurred in the territory of the requesting state.
The question that must be asked, particularly when the fugitive is a Canadian national, is: Should Canada be surrendering a fugitive to an extradition partner when, in precisely the same circumstances, Canada would not exercise jurisdiction? In my view, we should not. There is no question that at one time jurisdiction was very narrowly construed in Canada and in the United Kingdom but this is no longer the case. Is there an argument that the inability to make an argument on the basis of jurisdiction is contrary to s. 7 of the Charter? In my view there is scope for such an argument both on appeal of the extradition hearing and on judicial review.
The other point she made throughout was that, perhaps instead of expediting the process, we might be opening the whole thing up to a review by the courts in relation to Canadian nationals, in particular Charter rights. I am concerned that Canadian nationals' Charter rights might not be protected. I quoted that because it appears as though she shares that concern.
Ms McLellan: You raise a number of questions, one surrounding proposed section 5. You also raise other important issues -- that we, as a nation, have to confront and deal with a world where crime and criminals know no boundaries.
We have to accept the fact that we live in a world where there are a multitude of nations whose legal systems we respect and value, the French and Australian systems for example, but where issues of when one takes jurisdiction are dealt with differently. In addition, jurisdiction can be taken on territory, nationality, and citizenship, as we see with Romania where the victim exists.
I would hope none of us would deny that the states, if they so choose, have an interest in prosecuting fleeing criminals in the name of victims.
So there are different approaches to jurisdiction. I would hope that no one here suggests ours is necessarily better than someone else's. It is just different. It is different in terms of how one decides the question of when you take jurisdiction in relation to an alleged criminal offence. In fact -- and correct me if I am wrong -- we have moved away from territory at least in relation to the prosecution of offshore child sexual offences. This is completely appropriate. We must, as a general principle, be open to the fact that there are different legal systems, great legal systems, that choose to deal with jurisdiction and criminal matters differently than we do. We must also accept the fact that we are changing our approach to deal with the reality of globalized criminal activity. We, as Canadians abhor and want to send a signal in relation to that type of activity. For that reason, if a Canadian national goes to Thailand and buys the sexual services of a six year old, we have decided in this country that we are changing our jurisdictional rulings. In other words, even though that conduct took place in a territory other than ours, we would be able to deal with that person. Of course, Thailand could seek extradition as well, if all the other conditions and agreements were met. I am not suggesting otherwise. In relation to jurisdiction, there are different systems, and within our own country we are changing our views.
Dean La Forest's particular concern in relation to a Canadian national is whether that person or his or her legal counsel, upon proclamation or implementation of this legislation, could make a Charter argument in relation to jurisdiction. The answer is "yes," that there are people who make Charter arguments every day in this country. We cannot preclude that. After the most intense analysis possible, I believe that, based on the provisions of the Charter and the jurisprudence of the Supreme Court interpreting that Charter and our existing extradition laws, this proposed section withstands constitutional scrutiny under section 7 of the Charter, or potentially even 15, although I think Dean La Forest argued 7 rather than 5 -- due process.
I am sure there is counsel out there somewhere who, when this law is passed, will challenge that provision on behalf of a Canadian national. We anticipate there will be some challenges surrounding this new law. No one should be surprised by that; no one should be put off by that. In fact, we believe this new law, in spite of any potential challenge, will generally expedite and clarify processes and permit us to have a fair and expeditious extradition process.
I do not disagree with Dean La Forest to this point: Someone will probably challenge the question of jurisdiction. I would be amazed if that did not happen. Having said that, I believe this provision is constitutional. I believe it is absolutely required in a global community where we are dealing with the kinds of criminal activity that we confront every day.
Senator Bryden: In almost every instance involving criminal law, the Department of Justice makes the certification that it is constitutional and is fine under the Charter. It is amazing, that being the case, that there are so many judgments that tend to strike down pieces of the law which have had that certificate.
Ms McLellan: You are being only slightly facetious.
Senator Bryden: I choose to live in Canada as a Canadian, rather than in Australia or France, because I have the protections of the Charter of Rights and Freedoms which belong to a Canadian national. Why then should those rights and protections under that Charter be given up in order to have me extradited to another state where I would be charged with a crime for which I would not be charged here, for example?
Ms McLellan: Oh, no. I think your premise is fundamentally wrong.
Senator Bryden: Can I restate it? I said it wrong. I refer to a case where the courts would not seek jurisdiction in Canada. I want to stay with the point made by Dean La Forest. A person may be extradited on request of an extradition partner.
The question must be asked: When the fugitive is a Canadian national, should Canada be surrendering the fugitive to an extradition partner when, in precisely the same circumstances, Canada would not exercise jurisdiction?
Ms McLellan: That is jurisdiction. That is not the question of whether it is an offence in Canada as well as in the state seeking extradition.
Senator Bryden: I misspoke.
Ms McLellan: That is fundamental to our whole extradition system. I hope everyone understands that. We are not dealing with that here.
Senator Bryden: Even I understand that, Madam Minister.
Ms McLellan: It is very important. It is a bedrock principle of our extradition system that we could not extradite in that case.
There are other fundamental principles at issue. We live in a globalized world. Take the situation of the Maersk Dubai. If one of those sailors was a Canadian citizen who allegedly threw overboard Romanian nationals and if the state of Romania asked us to extradite that person to Romania to stand trial, is someone telling me that, as a civilized member of the international community, we should not extradite, if all other conditions are met, because our tradition is to exercise jurisdiction on the basis of territory as opposed to nationality or victim?
That creates very significant issues for us as a nation. My colleague the Minister of Foreign Affairs would be better equipped to answer those issues than would I.
Should we become a safe haven for these people, whether they are our citizens or someone else's citizens? We must stand and be counted as part of a civilized, international community.
If we want to carry forward our values, we do so in a number of ways. One way is to ensure that we are playing our part, acknowledging the diversity of great legal systems in the world. We must ensure wherever possible that those who would kill, maim or defraud others are dealt with in the countries where that action has happened.
Senator Bryden: I quoted a headline in the newspaper last night that said that Canada is known for good beer and light sentences.
Ms McLellan: That did catch my eye yesterday.
Senator Bryden: Senator Joyal quite properly asked: Who is to say that we are not right with the light sentences?
I have a very basic concern, in trying to be a good international global citizen, that we not compromise our hard-won rights as Canadian citizens and Canadian nationals. We are not citizens of the United States. We are not citizens of Nigeria. We are citizens of this country, with our own patterns and our own social, economic and judicial approaches.
Ms McLellan: No one disagrees with that, but we are not talking about that. I would agree with everything you said. I say to Canadians, if you want to be dealt with by Canadian laws, then stay at home. If you go to the United States and you kill an innocent person, then you should know that, in almost all cases, you will be dealt with under the laws of the United States of America. That is a profound principle of fairness and equity in the international community.
I am sure Senator Joyal was not suggesting that a Canadian could go to the United States and defraud thousands of seniors or rape a child and then scurry back across the border and argue that, for some reason, he or she should not be called to account in the country in which that pain and hurt was inflicted. As long as we have determined under this legislation that all requirements are met, the door is open to fundamental questions as to the role we can play in the rest of the world.
Senator Bryden: You beat me down.
Senator Grafstein: I appreciate the minister's passion. Let me cover some of the public policy issues and then return to two issues that are of concern to me.
You made a very passionate and logical exposition that Canada should not be perceived as a safe haven for criminals. When it comes to war criminals, we have been perceived, perhaps with some justification, as a haven for war criminals.
Ms McLellan: Tragically, that is so.
Senator Grafstein: We are now trying to look not backwards but forwards. Canada has led the way in establishing both the Rwandan and Yugoslavian tribunal and more recently the international tribunal. Let us look forward, and learn from our mistakes. We want to be world leaders in terms of establishing legitimate, expeditious and fair international tribunals.
Amnesty International has said that in order to facilitate that, why should we not have a two-track system so that, in order to put our money where our mouth is, we should promote expeditious trials of war crimes as the highest architectonic in our judicial system.
Why should we not learn from the past and provide a summary or speedy process if the international tribunal comes to the conclusion on strong prima facie evidence that we are harbouring a criminal who has committed crimes against humanity. Therefore, we could follow not just the lowest standard of Rome, but the highest guidelines to expedite the process, provided that that person is afforded some appropriate protection under Canada's laws.
Let me suggest something. You have given us an example where you feel that we should follow the Americans under this process because the Americans do not differentiate. In effect, they have an extradition process and that should be the same. In other words, they extradite to the international tribunals.
The United States has not led the way in terms of the formation of these international organizations. Take a look at our most recent experience with respect to the last tribunal. They did not support it. They choose not to support it. They have policy-related reasons as to why they will not support it in the short run.
Although our Minister of External Affairs and our government have been trying to persuade them, we have not yet been successful. Why should we use the United States as an example to the world and ourselves as to how to proceed under our law?
I sense an inconsistency in your goals, although I applaud your goal and support your position that Canada should not be a safe haven. We have been a safe haven, yet we are now trying to establish a fast track, at least for these international crimes to proceed.
In summary, we have heard from Amnesty International and criminal lawyers associations. They doubt that the Charter challenges would be severe. The concern is that if there were a fast-track, summary proceeding, we could conform to the Charter and still meet our international obligations. We could lead the world. We would send the world a signal that Canada does not want people who have been involved in international crimes. If they come, they will arrive on one train and will be sent on the next train right to the international court, if a prima facie case is made out that they have committed a crime.
Ms McLellan: Senator, I do not think that we disagree in terms of the objective. However, we probably have a difference of opinion with you and Amnesty in relation to what we mean by "appropriate protection" under Canadian law for someone who would be sent to one of these tribunals. You and Amnesty would suggest a fast-track process.
I have indicated why I think that the fast-track process is not the best track. It could undermine the shared objectives that we all have in terms of getting them before the tribunals and dealing with them.
We believe that the extradition process, as outlined here, is an expeditious, fair and transparent one. Based on the jurisprudence of the Supreme Court, and obviously they have not dealt with the specific issue, we have real concerns that a so-called fast-track process could lead to lengthy court challenges. Consequently, we believe that the prudent way to approach this issue, and the responsible way in the current context, is to have an extradition process by which we will deal with all requests.
Reasonable people of good faith can disagree on whether a summary procedure or the extradition process is better. I certainly acknowledge that. However, I have outlined why I believe that the extradition process is the appropriate one.
I am certainly not here in any way to defend the conduct of the United States in relation to war crimes and criminals, but this is an issue that I dealt with in a difficult context, as did my predecessor. As a nation, we had to overcome a lengthy period of inaction in terms of allegations of criminality.
The United States has dealt with many issues surrounding war criminals in an expeditious way. Over time, the U.S. has taken a very public stand in relation to the prosecution of war criminals.
I would not condemn the process of extradition by which the U.S. extradites to courts in Rwanda and Yugoslavia. Our department has learned much from their experience and their Office of Special Investigations in relation to war crimes and how we deal with war crimes either domestically or in the context of extraditing them to international tribunals.
Senator Grafstein: I did not mean to make a wholesale criticism of the United States on all issues. However, I am talking about their more recent policy position.
Ms McLellan: You mean, in relation to the international criminal court.
Senator Grafstein: Therefore, I would be sceptical about whatever they said on these issues and their model. This is not to say that we should throw the baby out with the bath water.
Ms McLellan: Indeed, as the world's remaining superpower, they have their own concerns in relation to that international court. I know that my colleague Minister Axworthy will continue to discuss this with his American counterpart.
I do not think that we should condemn the process of extradition that we have established here. I believe that it is a timely and efficient one that will clearly withstand judicial scrutiny. When you talk about a summary process, the courts in this country have said clearly that there must be a judicial process of some sort. Otherwise, we are really worried. Therefore, we need to be careful that we are not in the business of stripping people of the basic procedural rights of due process and fairness that the Supreme Court has set out, even people who have been alleged to do the most terrible things.
Mr. Roy: I would offer Senator Grafstein just a few observations. The reference made by the minister in her presentation to the United States was in answer to an argument raised by some that with respect to the tribunals for Rwanda and Yugoslavia we cannot use the process. She is saying that the Americans are using the extradition process and that it is working perfectly well. Therefore, there is no real problem. If we follow the process we are proposing, then we are not breaching our international obligations.
My second observation is that the argument presented by Amnesty International would have more weight if the proposed process were similar to the one we have right now. That means that first-person affidavits would be required to extradite someone. That is not what the minister is proposing.
With the record of the case, it will be possible, and we predict it will be probable, that the process will be expedited. Let us spend 30 seconds on an example. If, at the present time, you are in the process of trying to find evidence with respect to someone who is alleged to have committed a crime in Rwanda, you have to find affidavits and try to do that. What we will have in the future is the record of the case as prepared by the prosecutors in The Hague. That will come before a judge. It will be nicely wrapped and the judge will make a determination as to whether there is enough evidence in the package to send that person to trial. Once that is done, the matter goes to the Minister of Justice, who makes a decision there and then. I do not think we are talking about a protracted process that would create all sorts of problems in the future. I think the process presented in the bill will expedite matters. We want the same thing. It will be achieved with Bill C-40, with all due respect.
Senator Andreychuk: It seems to me that if we accept Amnesty International's fast-track proposition, we might be sending the signal that we are prejudging the case. We would be using those cases in a slightly different way.
We are trying to strengthen these tribunals to ensure that those alleged criminals get a fair trial. It would seem to me if we were to shorten the process, we would be sending the signal that we have already made up our mind. I support the government position on that matter.
However, much has been said about Canada's role with these tribunals and the fact that we have been seen as leaders. If that is the case, why has this legislation taken so long to get here? Madam Minister, I was asking for this, as were provincial attorneys general, long before you were in your portfolio. Why has it taken so long for Canada to respond?
Ms McLellan: That is an excellent question. It is why I encourage all of us to do our work and get Bill C-40 through so that we are no longer in that embarrassing situation.
My officials may be able to provide you with the history of this matter. However, there have been other legislative attempts to bring about a major reform. They were not pursued for one reason or another. I do not know the details.
Senator Andreychuk: I was told that you were revamping the entire act and, consequently, this piece would not come as a separate act. All the points about us being leaders have been lost because we are really followers. I make that point as we pursue the treaty of Rome and other issues.
Ms McLellan: Our extradition laws have not been fundamentally rewritten for 100 years. Our country has a separate act for Commonwealth countries, which reflects what was quite valid and important to us 100 years ago. However, the world has changed dramatically. You are right, we did not do the fundamental reforms that some other countries have done to reflect changing circumstances. We are doing that now. I think that is because of the leadership shown by my colleague, the Minister of Foreign Affairs, and former ministers of foreign affairs to some extent, along with ministers of justice. We have seized this issue and have come to understand it as we become more integrated into the global community. In my department, along with the Department of Foreign Affairs, we deal on an almost daily basis with practical examples of not being able to live up to our responsibilities because we do not have the laws in place to do just that.
If for nothing else, it has simply become evident and pressing to us as a government and as ministers that we must now act. We must act fairly quickly to rectify the situation that you have quite rightly outlined, senator. If my colleague the Minister of Foreign Affairs were here, he would tell you how important this is to him. In fact, he pressured us in the Department of Justice to get our drafting and consultations done and get this before Parliament. That is because he knows even better than I do about the pressures involved with meeting other ministers of foreign affairs and dealing with the kinds of very practical and real concerns they raise with him.
Senator Andreychuk: We discussed the fact that territoriality is important. A Canadian who commits a crime in the United States will have to pay for it. Foreign Affairs is constantly trying to teach Canadian tourists that lesson. You say that it has taken 100 years to introduce this legislation. Will it be another 100 years before it will be changed? I hope not. Crime is changing so much that territoriality and conflicting jurisdictions will become more of a problem. If you get more than one request, have you thought of the dilemmas that might follow? You have cited the example of Maersk Dubai. In Pinochet's case, more than one jurisdiction wants to commence an action. In your opinion, minister, does this legislation contemplate the future and the complexity of the crime therein?
Ms McLellan: I think it does, senator. I do not want to say much about the specific situation in Pinochet's case.
Senator Andreychuk: Until after March 24.
Ms McLellan: There is an ongoing investigation in this country in relation to an individual who has asked us to consider our role in relation to Mr. Pinochet.
Senator, you are right to flag the fact that the world in which we live is becoming increasingly multinational, and we will have situations in which more than two countries will show interest. We believe that we have dealt with that in this bill. I will let Mr. Roy explain.
Mr. Roy: The scheme being proposed by the Minister of Justice requires that the minister start the process. It is the minister who will make the decision as to what country will have the first crack at that person. I would point out that clause 5 states that "A person may be extradited". It is not mandatory, but the minister will have to determine what is the best forum for that person to receive fair treatment and for Canada to be able to discharge its obligations.
Senator Andreychuk: That is the problem I was getting at. It will be decided at the minister's discretion. I wonder if, in the future, that is the way to go. We have run out of time, but I want to flag that question.
Senator Grafstein: I would like to come back to an important issue.
I do not want to appear inconsistent, but the question of the discretion with respect to extraditing to states that do have a death penalty is a difficult one. You have chosen in your legislation to give yourself discretion. I heard you and I understand your position somewhat better, but let me give you a hard example. If you did a poll in Canada at this moment and you asked whether Canada should have a death penalty, you would get a strong plurality, if not a majority, in favour of the death penalty.
Ms McLellan: Yes, we probably would.
Senator Grafstein: We have gone against the public will and ended up with what we consider to be a humane society. We fought that battle over the years and it has been and continues to be a difficult situation. I think all of us here agree with that position.
Having said that, let us assume that we are confronted with a horrible case, for example, the case of a multiple killer in Texas. Assume that that person is able to escape and come to Canada but the State of Texas wants to extradite him. If you have discretion, how does one deal with that if the death penalty exists in that state -- that is, the two societal values? How do you deal with that, unless it was mandatory to relieve you of that particular pressure?
Ms McLellan: It is a fair responsibility to place on a Minister of Justice. That executive act should lie with the Minister of Justice.
I agree with you that in Canada, for the purposes of the prosecution of crime in this country, we have chosen to do away with the death penalty. That is a decision that I fully support, and I think a growing number of Canadians do also.
Having said that, if one commits such a horrific crime in this country, you will get life imprisonment in all likelihood but you will not face the death penalty. However, in at least 30 some states in the United States, they do have the death penalty.
Senator Grafstein: It is mandatory.
Ms McLellan: Indeed, in some cases it is mandatory.
Therefore, if you murder in the United States -- that is, if you choose to take another person's life -- you know that the societal values of the United States are such that, in certain circumstances, the death penalty is appropriate.
When we deal with extradition, while I have the ability to exercise my discretion -- and certainly in possible death penalty cases that is a most important and difficult situation in which I exercise that discretion -- it would be appropriate for us to impose our conception of a humane society on a sovereign state that has a different conception of a humane society, for the purposes of the prosecution of a crime that has taken place in that state.
Extraterritoriality principles do not apply here, but it is fair for us to fight for, protect and enhance our Canadian concept of a humane society in relation to the prosecution of crime when people are hurt in our country. People will know how they will be dealt with when they break the law. People know how they will be dealt with in the United States. If they flee to Canada after killing someone, I honestly believe that I must have the discretion to extradite that person back to the United States, even though they face the prospect of the death penalty -- unless there are circumstances where, in my discretion, I feel it would be inappropriate or I seek assurances against the death penalty and I get them. If I seek assurances and do not get them, then I must make the difficult call of whether I extradite at all.
That is a fair responsibility for the executive of our country and the Minister of Justice to undertake. If we do not do that, unfortunately what we will see is more Charles Ngs in this country. Difficult as the death penalty is for me and for you and for many others around this table, I honestly do not believe we in this country want to be described by the United States and by others as a safe haven for some of the worst criminals. That is, in a sense, the problem here, namely, that these people have done some of the most horrific things. Charles Ng was just convicted by the State of California of the murder and brutal torture of 11 people. For us not to have the discretion to extradite him and, in addition, to have to let that man go free in Canadian societies would, unfortunately, lead for a call on the part of Canadians either to change our extradition law or tragically, perhaps, to other changes in our criminal law.
The Chairman: On that note, we will close the meeting. I thank you very much for your attendance here this morning.
Ms McLellan: Thank you. It was my pleasure. I always enjoy being here because we have such stimulating discussions.
The Chairman: We will undoubtedly see you again in the future.
The committee adjourned.