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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 60 - Evidence


OTTAWA, Wednesday, March 10, 1999

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-40, 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 3:49 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 the legislation before the committee. This room was established especially for the G-7 economic summit held here in July 1981. It was decided at that time that the room would be preserved as a record of that historic event and in commemoration it was given the title "Summit Room."

Today we begin our consideration of Bill C-40, the new Extradition Act. 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 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 begins today with the appearance of officials from the Department of Justice, the department responsible for Bill C-40. Officials accompany them from Citizenship and Immigration Canada and the Department of Foreign Affairs and International Trade.

This meeting is the committee's first on Bill C-40. There will be another meeting tomorrow to hear from Amnesty International. Next Wednesday, the committee expects to hear from the Barreau de Québec, Professor Anne La Forest of the University of New Brunswick and the Criminal Lawyers' Association of Ontario. The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada, will follow them in the evening.

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 very much for appearing before the committee today. We look forward to your presentation. Please proceed.

Mr. Jacques Lemire, Legal Counsel, International Assistance Group, Department of Justice Canada: We are pleased and honoured to have this opportunity to speak on Bill C-40 which intends to bring Canada into the 21st century by remedying and eliminating cumbersome deficiencies in the current extradition regime. The bill helps to ensure that Canadian extradition practices are more in keeping with standards put forward in other developed nations.

The purpose of the bill fits squarely within the government's themes of modernizing laws as it aims to ensure that Canada's law is responsive to international developments and that Canada is not a haven for fugitives from foreign jurisdictions.

Within the G-7/P8 forum, for example, states have been requested to modernize their extradition laws to be responsive to the challenges of today's transnational crime. All of the fora that have considered the serious problem of international crime have identified extradition as a critical tool to combat this growing threat to world order. In the G-8, in the UN and within the Commonwealth, there have been calls for countries to put in place a comprehensive, effective and modern process for extradition.

[Translation]

The establishment of international crime courts for Rwanda and the former Yugoslavia is one of the underlying reasons behind Bill C-40. This bill will enable us to fulfil our international obligation to comply with resolutions made by the United Nations Security Council to set up the two international courts ordering us to comply with requests for assistance and to turn over fugitives to the courts. Right now, we would not be fulfilling our obligations as a member of the United Nations if a person wanted by one of these courts were in Canada and could not be extradited.

Since our Canadian extradition legislation is outdated and major changes are required to modernize our current extradition process, we have come up with a completely new Extradition Act which combines both the Extradition Act and the Fugitive Offenders Act. We have made some important additions in this bill.

Bill C-40 enables us to extradite individuals to international crime courts and, what is more, it applies to all requests for extradition made to Canada, whether or not they are presented under a specific treaty. Unlike the current system, which is limited, the new system allows extradition under bilateral or multilateral treaties, and when the State or the entity requesting extradition is designated as a "partner" in the schedule of the bill. In addition, the bill also enables the Minister of Foreign Affairs to enter into a specific extradition agreement with a State or an entity for a particular case. The bill will also apply to all requests for extradition made by Canada to a foreign country.

One of the biggest problems that crops up in the extradition process in Canada pertains to our complex evidence requirements that must be met by foreign countries requesting Canada to extradite certain individuals. It is very difficult for many countries, particularly those that do not have the same legal tradition as ours, to put together the numerous extradition documents required by Canadian evidence rules.

Under the new bill, the legal criterion for extradition remains the same. A Canadian judge must be satisfied that the evidence produced would justify holding a criminal trial in Canada if the conduct in respect of which the request for extradition is made had occurred in Canada. This criterion, referred to by lawyers as prima facie evidence, is the one considered during the preliminary hearing.

The proposed amendments deal mainly with form: the various types of evidence that can be presented to the extradition judge. The purpose of this measure is to eliminate the biggest hurdle that currently faces countries presenting requests for extradition to Canada; namely, their obligation to take statements under oath, in the first person, and without hearsay.

Experience has shown that it is already very difficult for States, even those that are familiar with our rules of evidence, to comply with the prima facie evidence criterion through statements taken under oath in the first person and without hearsay. This is particularly apparent for complicated modern crimes, such as fraud or money laundering.

The current system actually deters some countries from seeking the extradition of fugitives because they're not able to comply with the requirements dictated by our legislation. The result of the situation is that these fugitives remain at large in our community.

[English]

Under the new legislation, the judge would admit into evidence documentation contained in a record of the case.That record of the case would be certified by a judicial or prosecuting authority of the requesting party stating that the evidence is available for trial and sufficient to justify prosecution under their law. It would state that the evidence was lawfully obtained or, in the case of a person sought for the enforcement or imposition of a sentence, that the documents in the record of the case are accurate.

From a human rights perspective, this approach also offers better procedural safeguards and a greater certainty and consistency in the treatment of the person sought for extradition. First, a responsible authority in the foreign state must certify the contents of the record before the evidence can be found admissible. Second, the person sought will have a better view of the case as a summary of the evidence available will be provided as opposed to just affidavits on particular elements. Third, the Minister of Justice may decline to issue an authority to proceed if the minister is not satisfied with the content of the record in the case. Finally, the extradition judge can order committal only if evidence would justify committal for trial in Canada if the offence were committed here.

This takes me to another important feature of this reform. The extradition law, as it currently stands, does not provide for code of procedure. If you were to consult the Extradition Act or the Fugitive Offenders Act, you would be hard pressed to figure out how proceedings commenced, whether the fugitive is entitled to bail or how someone is to be arrested or could wave proceedings. Although amendments to the appeal process were implemented on an urgent basis in 1992, there was a clear need to spell out the basic procedural requirements instead of leaving that to practice that may or may not be satisfactory.

Let me bring you through other features included in the extradition law reform. The first point, which is clearly related to the evidentiary requirements that I just spoke about, concerns the respective roles of the courts and the executive branch in extradition cases. The current two-phase system will be maintained. The judicial phase will continue to ensure that there is an appropriate evidentiary foundation for the extradition request and the minister will have responsibility for matters relating to foreign law or an assessment of the state of affairs in the foreign state such as human rights situations.

Subject to certain exceptions, the bill provides mandatory and discretionary grounds for the refusal of surrender by the minister, including political offence, lack of jurisdiction, death penalty, humanitarian considerations, injustice and oppression. Those safeguards are provided in addition to any protection under the Canadian Charter of Rights and Freedoms that the person sought may raise. Those decisions, whether by the extradition judge or the minister, will be reviewable by provincial courts of appeal, as under the present scheme.

[Translation]

Furthermore, Bill C-40 provides for amendments to the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act and the Canada Evidence Act. These amendments authorize the use of video and audio-link technology for the purpose of providing testimony from witnesses located in Canada or abroad. We feel that these amendments constitute major changes as far as testimonial evidence is concerned, taking into account modern realities and the rights of the accused.

Finally, the proposed legislation also seeks to harmonize the extradition and refugee determination process because conflicts can occur when a requested person has also made a refugee claim in Canada. Consequently, Bill C-40 amends both the Extradition Act and the Immigration Act to avoid duplication of decisions and to minimize the delay in the extradition process. In addition, the bill also provides for consultation between the Minister of Justice and the Minister of Citizenship and Immigration with respect to this issue.

[English]

In conclusion, we wish once again to stress the importance of Bill C-40 at the national and international levels. The reform of Canada's extradition law in a comprehensive, uniform, modern scheme is essential to give our country the tools it needs to deal with increased mobility of individuals and the complexity of today's crimes and to ensure that Canada is not a haven for fugitives from other countries.

Mr. Alan Kessel, Director, United Nations Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade: This particular bill is of extreme importance to our department from the international affairs perspective. It is one of the essential building blocks in allowing Canada to perform its functions internationally.

This bill meets the requirements that the United Nations Security Council has instituted, mainly that member states have a capacity to surrender individuals on their territory to the international tribunals of Yugoslavia and Rwanda, including the future international criminal court that hopefully will be a recipient of international war criminals. This bill allows Canada to complete part of its requirements in order to fulfil its international obligations. From that perspective, it is of extreme importance.

Mr. Yaron Butovsky, Legal Counsel, Citizenship and Immigration, Department of Justice Canada: I agree with what my colleague, Mr. Lemire, has mentioned about the implications of the bill for the Immigration Act, but I should be happy to answer any questions that the committee may have about the consequences of that change.

Senator Beaudoin: My first question concerns the Charter of Rights. If I understand the law as it will be under your bill, before extradition takes place, the person would be arrested and accused and only after that would the person be the object of an extradition. Is that the case?

Mr. Lemire: Yes it is. In order for a person to be extradited, that individual must be charged, accused or facing prosecution in the other state or entity. Likewise, extradition may occur with a view to having a person receive a sentence or with a view to having a sentence enforced in the other state. Those three scenarios are contemplated and outlined in the legislation.

[Translation]

Senator Beaudoin: The Supreme Court reports refer to the case of an individual facing a request for extradition. In Canada, we abolished capital punishment in 1976. We know that some countries, including our neighbours to the south, in several of their states, still have capital punishment. What would happen if, following a treaty, a foreign state, a signatory to the treaty, were to request extradition and we were to decide to comply with the request while knowing that if extradited, this individual would be facing the death penalty?

If my memory is correct, the Supreme Court is divided on this matter. Some judges raise the issue of capital punishment but a majority said that we should comply with the request for extradition. Is that the case? Does your Bill C-40 deal with this issue directly?

Mr. Lemire: The Supreme Court did, indeed, examine the problem of what to do when a state in favour of capital punishment requests extradition.

The Supreme Court issued a key decree whereby the majority indicated that it was quite appropriate for the minister to use his or her discretion in deciding whether or not to request some assurances with respect to the death penalty before extraditing an individual.

This discretion has been established. Determining whether or not assurances should be obtained with respect to the death penalty is decided on a case-by-case basis. With this approach we are clearly trying to avoid the situation whereby Canada becomes a haven for accused individuals or people who have perpetrated the worst crimes. The Supreme Court has sanctioned an approach whereby the merit of each individual case is considered.

Clause 44(2) and clause 40(3) are the provisions in the bill that deal with this issue of assurances and the death penalty. Clause 40(3) provides that the minister may subject the surrender to any conditions or seek any assurances that he or she considers appropriate to the case and clause 44(2) provides that the minister may refuse to make a surrender order if the minister is satisfied that the conduct in the respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner.

Discretion is established, as is the authority to seek assurances. This discretion provides that the merit of each case is to be assessed.

Senator Beaudoin: Let us take the case, for example, of someone who has committed a crime and whose extradition has been requested. The Canadian minister can say that he has examined the facts of the case and refused surrender. Does the minister have that absolute power, and here we are obviously talking about murder, in the case of something serious?

Mr. Lemire: In making such a decision, the Minister of Justice will have to consider all relevant facts. In such a case, the Minister of Justice will have to determine whether or not it would be appropriate to seek assurances.

Senator Beaudoin: What do you mean by seeking assurances?

Mr. Lemire: The minister could decide that, if the surrender is to take place, the requesting in state would first have to provide assurances that the death penalty would not be sought or that, if such a penalty were to be imposed, that it would not be carried out.

Senator Beaudoin: If the law provides for the death penalty and if the foreign law gives no discretion to foreign states, the person cannot give any assurance that it will not be applied.

Mr. Lemire: First of all, one must determine whether the minister makes this decision. It is up to the other country whether such assurances will be provided or not.

Often, it can occur that the possibility of the death penalty being imposed depends on a decision to seek the death penalty or not. You are undoubtedly aware that in many states, there is a possibility that if the death penalty is imposed, it is not carried out as a result of potential recourse to the executive powers. Each case has to be evaluated individually. It is very difficult to provide an answer to a question like the one you raise.

[English]

Senator Beaudoin: In most cases there is no death penalty -- Great Britain, France, Germany, Italy and Spain, for example. However, there is a death penalty in some states in the United States. Each case should be decided according to the circumstances. Usually, discretion is given to the Attorney General.

Senator Bryden: Citizens in this country are protected by our Charter and other things from cruel and unusual punishment. Regarding what constitutes extraditable conduct, clause 3(1) of the bill states:

(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and

(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,

(i) ...by imprisonment for a maximum term of five years or more, or by a more severe punishment...

Suppose that Canada has an agreement with a given country and that in Canada, the offence with which the person is charged is punishable by a maximum of 10 years in prison but in the country to which the person would be extradited, the punishment is to have the right hand severed. Would that constitute "a more severe punishment?"

Mr. Piragoff: Clearly, that would constitute a more severe punishment. However, you must consider that clause 3 is only a provision that allows the other country to make a request for extradition, thus starting the process. In other words, there is at least a minimum penalty and a maximum penalty that must exist in the other country. We will not invoke the extradition process for minor offences. It must be something serious. Seriousness is defined under modern extradition treaty law as generally being a crime worth a certain amount of punishment.

Our old treaties and our old act used to have a list of offences such as murder, robbery and so on. That caused a lot of trouble with other countries because the offences do not match together. However, in the last 10 or 15 years, countries have started to move towards this concept of setting a minimum penalty or at least a minimum and maximum penalty.

If a country has very severe forms of punishment, as in your example, even though they might be able to apply for extradition under the provisions of the bill, clause 44(1), which talks about the minister's discretion and to which Senator Beaudoin referred a few minutes ago, states:

The Minister shall refuse to make a surrender order if the Minister is satisfied that

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

That is a mandatory obligation of the minister not to surrender if the circumstances are such that they would be unjust or oppressive.

In addition to that, the Charter applies, particularly with respect to the Ng and the Kindler cases. Section 7 provides that the Minister of Justice has a fetter on her discretion, meaning that she cannot exercise her discretion to surrender a person if it would result in a surrender or circumstances of surrender, such as punishment or treatment, that would shock the conscience of Canadians. That is the test that the court uses. In other words, it would shock Canadians' conscience to surrender a person to undergo that type of treatment or that type of punishment.

In the example that you gave, the amputation of a hand, the minister would be obligated to consider that factor under clause 44 (1)(a) of the bill. In addition to that, the Charter would probably require her not to surrender in that particular case.

The Chairman: On page 57 at the back of this bill there is a schedule of states or entities designated as extradition partners. The list is very specific. It is inclusive, not exclusive, and the United States is not listed on it, presumably because of the death penalty.

Mr. Donald Piragoff, General Counsel, Criminal Law Policy Section, Department of Justice Canada: No. I might be able to explain the significance of that schedule.

The Chairman: I do not see the United States there.

Mr. Piragoff: No, they are not on the schedule. Under our current legislation, extradition is available only by way of treaty and there has to be a treaty between the two countries.

There are two exceptions to that general rule. One is in the Extradition Act, whereby a country can be designated by way of a schedule and the act will then apply to them, but only prospectively. The other way that extradition can occur without a treaty is between Commonwealth countries.

In the case of Commonwealth countries, there is no treaty. We do not have a treaty with the United Kingdom or other Commonwealth countries because at one time we all had the same head of state, the Queen. When people were surrendered from one part of the Commonwealth to another part of the Commonwealth it was not considered to be extradition.

The Chairman: In other words, people may be extradited to countries that Canada has a treaty with or to countries that are members of the Commonwealth.

Mr. Piragoff: That is right. In addition to that, some countries -- Japan, for example -- as a practice do not have extradition treaties. They are able to extradite unilaterally according to their own national legislation if reciprocity is granted by another country.

This legislation also provides that Canada can designate other countries, not only Commonwealth countries, to be on the definition list, and we can provide extradition to those countries. For example, you will notice that Japan is on that particular list. Therefore, we would be able to have extradition relationships with Japan. Until this time -- in fact, even today -- we are not able to undertake full extradition relations with Japan because we do not have a treaty with them. This would give us the ability to extradite to Japan notwithstanding the treaty.

Where there is no treaty, the provisions of the bill would take the place of the treaty and all of the safeguards and all of the procedures in the bill would apply to that particular type of relationship.

The Chairman: I apologize, Senator Bryden, for interjecting. The floor is still yours.

Senator Bryden: Your apology is accepted.

There is a clause that specifically refers to the death penalty.

Mr. Lemire: It is clause 44(2).

Senator Bryden: That is right. I am concerned because in clause 44(2), the minister is directed not to make a surrender order if he is satisfied that the punishment will be the death penalty, whereas under the more general section, the minister is directed to refuse to make a surrender order if he is satisfied that it would be unjust or oppressive having regard to all of the relevant circumstances.

If a country or state has the death penalty, the minister can say, "They have the death penalty. I will not surrender this person because he is going to Texas and they kill people down there." However, in the case of a situation under clause 44(1), I take it a continuum of penalties is available. In other words, at one extreme, it is pretty clear that cutting off a person's hand would offend the conscience of Canadians. At the other extreme, that person could be imprisoned for 35 years without parole. Also, there are prison sentences that do not run concurrently but are stacked one on top of the other so that the person gets convicted for 440 years in prison, which happens in some states and in certain countries.

Is the discretion of the minister at the executive level a discretion that, perhaps, should be at the level of the courts?

Mr. Piragoff: Under the current law, the minister has the discretion on surrender. The bill will not change the current law.

Senator Bryden: I am not agreeing that the current law is right. If it is bad, let us fix it.

Mr. Piragoff: Let us deal with the policy question, then, and the types of decisions that are taken into account when determining human rights violations or situations in a foreign country. The executive is in a better place to judge those types of situations than a court is for a number of reasons. Under international law, extradition is primarily an executive act. It is an act between the two executives.

In Canada and most common law countries, the judiciary has a larger role than in civil law countries, for example. However, the role of the judiciary is primarily restricted to issues pertinent to domestic procedural safeguards such as the sufficiency of the evidence, ensuring that the documents are right, ensuring that the identity is right. Issues that affect the foreign policy of a state and whether or not the treaties will be honoured become foreign policy issues, which, under our constitution, are a matter solely for the executive branch of government.

When the Government of Canada says, "We will not send this individual to a particular country because we do not have confidence in that country's political or legal system or because the individual may be subjected to cruel and unusual punishment," it is to some extent a ringing indictment against that country. If Canada wants to make that type of statement to a country, then that is an executive decision, because Canada is saying publicly to that country, "We do not have confidence in your political or legal system." It usually does not get that far because the country will withdraw the request if we tell them that we will not surrender the person because we do not have confidence.

The factors that go into that type of assessment come from the Ministry of Foreign Affairs. We have people posted in our missions throughout the world. Confidential human rights reports are made every year and supplied to the Government of Canada. Everyone knows that the United States makes and publishes human rights reports. Every other country has human rights and political reports. The purpose of Foreign Affairs is to be there and to collect information to be supplied back to the government. All of that information is collected and would be presented to the minister.

Much of that is not the kind of information you could publicly disclose in front of a judge, nor would a judge necessarily be the best person to weigh evidence about human rights violations versus the political situation in a country, Canada's relationship with that country, and other information that is of an intelligence nature more than of a judicial nature. That is why it is primarily an executive decision.

Senator Bryden: I understand that. Is the decision by that executive appealable to the courts?

Mr. Piragoff: Yes. It is reviewable by them.

Senator Bryden: At the very least, it is a quasi-executive decision.

Who is the Attorney General of Canada?

Mr. Piragoff: Minister McLellan.

Senator Bryden: She is also the Minister of Justice.

Mr. Piragoff: That is correct.

Senator Bryden: There are a number of instances in this bill where the Attorney General applies to the Minister of Justice for permission to do something. Are those two offices so distinct from each other that the same person applying to herself is not in some way like being a judge in one's own case?

Mr. Piragoff: Mr. Lemire can respond further to that because he deals with it on a practical basis. As used in this bill, "Attorney General" includes all of her agents, including prosecutors in Toronto, Vancouver and Montreal. They perform the role of the Attorney General in court and they represent the foreign state in court.

Minister McLellan, who wears both hats, does perform two different functions. On the one hand, she is the Minister of Justice and the chief legal advisor to the Crown. She also happens to be the chief prosecutor. The actual prosecutorial conduct of an extradition hearing in the court is done by agents who would appeal to the minister in her ministerial hat for the permissions that are sought.

Mr. Lemire can explain exactly how the system works right now.

Senator Bryden: Look at the warrant for provisional arrest. Clause 12 reads:

The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that...

There is an entire list of things.

I used to be a deputy attorney general provincially and my staff and I did all of the work. However, it was the minister, the Attorney General, who was responsible for the office. Similarly, the Minister of Justice is the person responsible for that department, its proper conduct and so on, not the Deputy Minister of Justice or anyone else.

It is somewhat peculiar to have the Minister of Justice authorizing the Attorney General to take certain actions provided that the Minister of Justice is satisfied of certain conditions. They are both Anne McLellan. I find that very difficult to accept unless the two offices can be separated. Indeed, in some places it is the case that the Minister of Justice and the Attorney General are two different persons.

Mr. Lemire: I understand your point. The issue has been considered in the past. However, we must consider it in view of our reality in Canada, which is that the Minister of Justice and the Attorney General are the same person.

That must be considered in the context of the extradition procedure at large. It is a two-step procedure. The judicial phase involves issues that are different and distinct from those that the minister must consider on surrender.

In the context of the extradition proceedings, the foreign state or the foreign entity applying for extradition is represented by agents of the Attorney General. Their role is to represent the foreign state before the court for the purposes of having the person arrested, setting bail and having the extradition hearing. Those steps are handled by personnel in our regional offices who are, once the individual is committed by the extradition judge, not involved in the ministerial decision process. Again, that pertains to issues different from those that the judge had to consider.

My point is that different personnel who deal with different issues are involved. The question was considered by the Supreme Court in two cases: United States of America v. Cotroni and Idziak v. Canada (Minister of Justice). The court recognized that in view of the nature of the two phases, the separate roles and the specific duties of everyone, there was no systemic bias or an apprehension of systemic bias in view of the nature of the two phases.

Senator Bryden: Is it worded exactly the same as it is here? It seems to me that a person objecting to the Attorney General's action would have grounds for objection because it was the same person who authorized the Attorney General to take the action; do you agree?

Mr. Lemire: The finding that the Minister of Justice takes when authorizing the Attorney General to seek a warrant is specified there. The minister is satisfied that it is an offence punishable in accordance with clause 3(1)(a) and that the extradition partner will make a requisition for the person's extradition. Those are strictly executive issues.

Once the minister is satisfied of those particular items, then it is for the Attorney General, in the context of the judicial phase, to conduct the proceedings. At the end, the minister must decide whether or not to surrender, and that is a totally different set of questions that must be asked.

Senator Bryden: Is this what we used to refer to as a legal fiction?

Mr. Lemire: As I said earlier, it is part of our reality. The Minister of Justice and the Attorney General are one and the same person, but the duties and the considerations at the different stages are totally different and handled by different personnel.

Senator Bryden: Are there other situations in which the Minister of Justice authorizes the Attorney General to take certain actions and vice versa?

Senator Beaudoin: Do you mean in Canada?

Senator Bryden: Yes.

Senator Beaudoin: That is impossible.

Senator Bryden: It is possible here: proposed section 12 outlines exactly that.

Senator Beaudoin: On page five? That is quite a change.

Mr. Lemire: It is the existing practice.

Mr. Piragoff: Yes.

Senator Beaudoin: You have to amend the law.

Mr. Piragoff: Under the Extradition Act, it is the existing practice.

Senator Bryden: At the time when those old acts were drafted, were the roles of Attorney General and Minister of Justice held by two separate people?

Mr. Piragoff: As far as I know, we have always had a merged Minister of Justice and Attorney General since Confederation.

Senator Beaudoin: That is what I thought.

Senator Bryden: Did you read that clause?

Senator Beaudoin: Yes, and I am astonished.

Mr. Piragoff: It looks odd because it is the same person. However, it is not the first time that ministers might be wearing two hats. In other countries, some ministers have two portfolios. It is not unheard of for ministers in many countries to carry two portfolios and wear two hats. They may be making different decisions under those two hats.

It looks odd here. It is put here because under our existing legislation, there is no need for the permission of the Minister of Justice in order to start extradition proceedings. Under the existing legislation, in order to commence extradition proceedings, a foreign country can ask for a warrant of provisional arrest. That arrest warrant will then go out.

Senator Bryden: Who do they ask for that warrant?

Mr. Piragoff: They ask the Attorney General or they can even ask local police officers to seek a provisional arrest warrant. When the person is arrested and brought into court, the Attorney General of Canada will usually, because the treaty provides for it, represent the foreign country. There is no ministerial or political review up front. The only time that the minister and the executive, or the minister wearing her executive hat, gets involved is at the back end.

This legislation attempts to provide some safeguards up front, not only at the back end. Therefore, the minister may look at the case and the request and say, "If this case goes through, I do not think that we will surrender at the end of the day. I will not issue an authority to proceed."

The authority to proceed is a new concept in this bill. You cannot simply start an extradition hearing on your own. You must obtain ministerial approval.

Senator Bryden: What did you use as a precedent for having the Minister of Justice authorize the Attorney General to take a certain action? That obviously does not come out of the old system; it is new.

Mr. Piragoff: That is right.

Senator Bryden: Why do you think it will fly?

Mr. Piragoff: It is used in the United Kingdom. In their system, authority to proceed is issued by the Secretary of State.

Senator Bryden: To whom is that authority issued?

Mr. Piragoff: It is issued to the Solicitor General or to the Crown law offices. I cannot remember which.

Senator Bryden: Yes, but he does not issue it to himself.

Mr. Piragoff: No, it is not to himself or herself. However, as you said, it is a legal fiction.

There are other situations under federal legislation right now where a minister can authorize himself or herself to do something. If he or she is satisfied with X, Y and Z, the minister may do A, B and C. Many pieces of legislation say that.

This bill basically does the same thing. Parliament has given the minister the discretion to authorize himself or herself to do something. That is exactly the same power. However, rather than saying, "You authorize yourself," it says, "You have a dual responsibility. In one you function as the Attorney General and in the other you function as Minister of Justice; therefore, you authorize your alter ego as Attorney General."

Senator Bryden: You have to be able to do better than that.

Mr. Piragoff: If we had the words "Minister of Justice" in both places on page 5, clause 12 would read: "The Minister may, after receiving the request, authorize the issuance of a provisional arrest warrant if the minister is satisfied that the conditions in (a) and (b) exist." The minister would still be authorizing himself or herself to start an extradition hearing.

Senator Bryden: Why did you not say that?

Mr. Piragoff: We did not say that because we are trying to ensure that the function of conducting the proceedings in court is carried out by the Attorney General function of the minister, not the Minister of Justice function of that same individual. That peculiarity exists in many places because the minister performs both roles. However, there is nothing odd about ministers authorizing themselves to do something.

Senator Bryden: There is nothing wrong with the minister being satisfied. There is much of that in the statute.

Senator Fraser: I was interested in clause 5 concerning jurisdiction. It states:

A person may be extradited

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

(b) whether or not Canada could exercise jurisdiction in similar circumstances.

What are we doing here? On the face of it, this is strange in a country that has complained about the exercise of extraterritorial jurisdiction in the past.

Mr. Piragoff: That is the first part of the package. The second part is in clause 47(e) where the minister may refuse to make a surrender order if the minister is satisfied that none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction. That is intended to get over a problem that exists under the current Extradition Act. What happens if a country exercises jurisdiction on a basis other than territorial? In most cases the conduct will have occurred on the territory of the other state. However, what if it occurs on its ships or on its aircraft? What happens in that particular situation?

For example, we had a problem last year in the Maersk Dubai case. That was a case where members of the crew of a ship off the coast of Nova Scotia were allegedly thrown overboard. With respect to the treaty in existence at that time, it was not sure whether we had jurisdiction or whether we could exercise their jurisdiction because the conduct did not occur on the physical territory of Romania but, rather, occurred onboard a ship.

This bill says that those jurisdictional issues are not a bar up front to extradition. However, when it comes to surrender, the minister can decide whether he or she wishes to extradite, given the fact that it is extraterritorial.

You mentioned that Canada is very concerned about extraterritorial assertions of jurisdiction by other countries. I do not think I have to name the country you have in mind. However, in those situations, Canada could say that while the fact that the other country is claiming jurisdiction on an extraterritorial basis is not a bar to get in the front door, as a ground of refusal, the minister can say that he will not surrender because we will not recognize that basis of jurisdiction in this case. The safeguard is still there. Rather than being at the front end, it has been moved to the back end.

Senator Fraser: Are there international laws governing this type of situation where you are willing to accept a country's jurisdiction even if it is extraterritorial, or is this purely ministerial discretion?

Mr. Lemire: In my view, it is within the minister's jurisdiction.

Clause 5 recognizes that jurisdiction can be taken on a basis other than territory. Canada's main jurisdictional basis is territory. Other countries take jurisdiction on other bases, such as the nationality of the individual. That is an issue for the other state to see how they assume jurisdiction.

As Mr. Piragoff indicated, in the end it is for the minister to determine whether it is appropriate, in view of the jurisdictional basis, to surrender under the circumstances. Clause 5 recognizes the different bases for jurisdiction. It says the fact that they do not take jurisdiction on the same basis as we do normally is not a bar to proceeding. Still, there is a check at the end for the minister as to whether it is appropriate under the circumstances to grant extradition based on the fact that a territorial jurisdiction is not invoked.

Senator Buchanan: Are you saying that if this bill had been law last year, Judge MacDonald could have issued an extradition order to Romania against the Taiwanese sailors?

Mr. Piragoff: In that particular case, the treaty was interpreted such that we did have jurisdiction.

This bill would have cured the problem that we had to litigate in court. The question was whether we could recognize the jurisdiction. Under the treaty and under the existing law, we were supposedly restricted to a territorial basis of jurisdiction. This bill would remove that as a bar.

That is quite important when we start talking about extradition with civil law countries. Countries such as France and Germany assert jurisdiction not only on the basis that conduct has occurred on their territory, but they also assert jurisdiction over their nationals for conduct committed by their nationals anywhere in the world. For example, if a national from France were to commit an offence in the United States, that person could be prosecuted in France even though they committed the conduct elsewhere.

If that person committed the conduct in the United States and then fled to Canada, France could ask Canada to extradite that person, even though the conduct -- the robbery or the murder -- never occurred in France. That is what would happen if we recognized that France was validly asserting jurisdiction in that case.

Senator Buchanan: If I follow what you are saying, Judge MacDonald could have made a different ruling if clause 5 had been law last year.

Mr. Piragoff: Yes.

Senator Buchanan: Was that clause put in this new bill as result of the Nova Scotia case?

Mr. Piragoff: No. The idea for this bill had come up even before the Nova Scotia case. This bill has been in the works for a number of years.

Senator Buchanan: But was that clause there?

Mr. Piragoff: That clause had also been part of the original plan for the bill prior to the Maersk Dubai case because of problems we had experienced with other countries that assert jurisdiction on areas other than territory, such as nationality, et cetera.

Senator Buchanan: Were there similar cases in Canada prior to the Taiwanese case?

Mr. Lemire: I would be hard pressed to give you a clear answer on that. I could not say.

Senator Buchanan: My understanding was that this Taiwanese case was a unique extradition case.

Mr. Lemire: Its occurrence was unique. However, the fact that various states take jurisdiction on a basis other than territory, such as nationality or citizenship of the person charged, is not new. Obviously, this provision in the bill would cure the difficulties we had in the Maersk Dubai case that arose because of the provisions of the treaty and of the existing Extradition Act. The definition of "fugitive" in the legislation was of relevance to Judge MacDonald's decision.

Senator Buchanan: That is right.

Mr. Lemire: In my view, this bill would address those concerns.

[Translation]

Senator Joyal: Mr. Lemire, I do not see the State of Israel mentioned in the schedule published on page 57 of States and entities designated as partners to the bill. What difference would it have made if this bill had been implemented when Canada proceeded with the last extradition of a World War II war criminal, that is, war criminals sought out for genocide?

Mr. Lemire: The new legislation allows extradition on different bases. It allows for extradition to the country with which we have a treaty or to countries which are part of a multilateral agreement of which Canada and the other country are signatories. It also allows extradition to countries designated in the schedule provided for under clause 9 as well as extradition to countries in specific cases when there is a specific arrangement provided for under clause 10. We have signed an extradition treaty with Israel. That is why it is not necessary for Israel to appear in the schedule created pursuant to clause 9.

With regard to the possibility of extraditing for certain offences, you will notice that the legislation does not provide for a list of offences or crimes for which extradition may be granted. This approach allows us to be much more flexible. Rather than trying to identify a given offence, to ensure that the name of the offense appears on the list, we focus instead on conduct. Are the acts punishable in the requesting state also punishable in Canada? Those are the ins and outs of the dual criminality rule that applies and is described in clause 3.

The question that would have had to be asked with the type of crime that you are referring to is as follows: Is the crime for which extradition is requested covered by clause 3 in the requesting state? Is the crime in question punishable by two years or more in the requesting state? The answer is yes. Are the facts in question that constitute a crime in the requesting state punishable in Canada by two years or more? If the answer is yes, the criteria under clause 3 have been met.

Senator Joyal: In terms of the extradition procedure that Canada followed when it had to respond to an extradition request for war crimes following World War II, and in particular the case of genocide that we're familiar with, the only difference the bill would have made would be in the definition of war crimes, correct? As far as the rest of the procedure is concerned, it is identical.

Mr. Lemire: I answered the question referring to the basic criterion provided for in the legislation. With regard to procedure, there are other changes. With regard to the exact description of the roles attributed to the Minister of Justice, to the judiciary powers, the bill contains provisions that set out the roles of each in accordance with current practice.

The bill clearly identifies the factors on which the extradition judge must base his decision on receiving a request for extradition. This may take place in the following fashion: through the issuance of an authority to proceed pursuant to section 155 by the Department of Justice which clearly sets out in terms of Canadian law the offence for which extradition is being requested. In his authority to proceed, the minister indicates which Canadian offences the extradition judge must rule upon to determine whether there is sufficient evidence or not. The other relevant change arising from the act is the moment when an appreciation is made, so to speak, of the Canadian aspect of the dual criminality rule.

It must be a crime in the applicant State but also a punishable offence under Canadian law. Section 29(4) provides that in coming to his decision to determine whether evidence has been produced of a Canadian crime, the relevant date to be taken into consideration is the date of the authority to proceed.

Do the facts for which the extradition is requested constitute a crime in Canada at the date of the authority to proceed rather than at the date on which they occurred?

Senator Joyal: That is an enormous undertaking.

Mr. Lemire: Exactly. And it is more specifically a situation that does not allow for any flexibility and that does not take into account the evolution of criminality and the appropriate legislation. That is an amendment introduced by subsection 29(4) of the act.

Senator Joyal: Let us take the following hypothesis: let us suppose that Germany requests the extradition of someone in Canada sought for war crimes; in such a case Canada would have to assess the application for extradition on the basis of what constitutes a crime today day rather than the provisions of German law at the time when the alleged crime is supposed to have taken place?

Mr. Lemire: The extradition judge would have to assess the facts in relation to a Canadian offence under Canadian laws taking into account those offences existing in Canadian law at the time of the authority to proceed rather than at the time when the offences are supposed to have taken place.

The Canadian judge determines whether there is evidence of an offence under Canadian law rather than under the law of a foreign state. That is what I was trying to determine. You are quite right in saying that this assessment is made for the time when the authority to proceed is issued.

Senator Joyal: That is a major change. Are there any other changes in this bill in relation to a hypothetical war criminal? Those who are listening to us discuss this legal text want to know what actual practices will change as compared to the previous system. They remember the kind of extradition proceedings Canada was involved in.

Mr. Lemire: In a nutshell, this bill proposes a revision, bringing together two pieces of legislation, with a single extradition system, clarifying everyone's role and assigning specific responsibilities. We are taking a modern approach in that we are establishing different bases for extradition and, resulting from that, the notion of extradition partner. We might mention those with which we have concluded a treaty, those that are designated in the schedule and those with which we have a specific agreement. These important changes have a direct impact on our ability to extradite to a foreign state or to an international criminal court. That is an important factor.

I also mentioned the existence of another important factor, the authority to proceed that constitutes the basic document. This document identifies the issues that the extradition judge must deal with. Another important element of the proposed reform is the evidence that is made admissible for the purpose of the hearing before the extradition judge.

Traditionally, under the present system, a state was required to submit to us prima facie evidence that the accused had committed an offence that would be a crime in Canada.

The new legislation maintains this test for prima facie evidence which is exactly the same test that is applied in the preliminary investigation in Canada. There is a change in the law that in no way touches the burden of proof and the way in which this requirement is met. Rather than obliging the foreign state to provide us with sworn statements for each witness containing no hearsay, it is provided that evidence shall be admitted on the basis of the record of the case in which the foreign authorities indicate to us the evidence that they have available. Rather than having, for example, in very complex cases, a whole series of voluminous statements made under oath by the various witnesses, we could have a document issued by the legal authority or by the prosecution authority setting out the evidence without a sworn statement from each witness. As a result of this important measure, many states that experience difficulties in proceeding with extradition applications with us at the present time would be able to proceed and comply with our requirements. In the circumstances, the accused or rather the person being sought would benefit from adequate protection under the law.

As for the other changes made by the act, we might note the maintenance of the simplified appeal process in existence since 1992, the result of which has been a substantial reduction in the delays that may occur during extradition proceedings. Rather than having a procedure where it is possible to go to the Supreme Court twice, once for the ruling of the extradition judge and the second time following the decision of the Minister of Justice, the new appeal procedure allows for concurrent appeals in order to reduce the time period. This new appeal procedure has resulted in time reductions of approximately 50 per cent. That is a notable fact.

Another interesting measure in the act are the provisions allowing for a temporary surrender of an individual. Let me explain with an example. An individual may be serving a sentence for a crime committed in Canada and this same person may be subject to charges in another country. This other country asks for the extradition of the person who happens to be serving a long sentence in Canada. Under the new legislation, it is possible to proceed with the normal extradition process and surrender the individual to the foreign state, in spite of the Canadian sentence, so that this person may be tried in the applicant state and then come back to serve the rest of his sentence in Canada. Once the Canadian sentence has been served, the person is sent back to the applicant state to serve the sentence resulting from the trial that took place there.

The net effect of this provision is that no one can benefit from a Canadian sentence in order to bring about a significant delay in legal proceedings in another state. This means that long delays can be avoided while at the same time maintaining an efficient procedure.

[English]

The Chairman: Perhaps I could interject here to ask our witnesses to make their answers more concise.

Senator Fraser: May I ask a supplementary question?

The Chairman: I wish first to congratulate Senator Bryden. He has noticed a mistake in the bill. At the bottom of page 10, there is a line missing at the end of clause 23(1). I believe it should probably read, "apply in respect of the new authority to proceed, unless the court, on application of the person or the Attorney General, orders otherwise."

Senator Bryden: It is rather interesting that the line left out is the one where the minister and the Attorney General are both referred to in the same section.

Senator Fraser: The public has been very interested in the question of war criminals. Under this bill, would it be easier to extradite, for example, Second World War criminals to Europe than has been our experience in the past?

Mr. Piragoff: First, I would answer the question about page 10. Clearly, there was a printing error between when the bill was printed in the other place and as it was given to you. The original bill as introduced contains the words "the Attorney General orders otherwise."

The Chairman: Are you referring to the original bill as passed by the House of Commons?

Mr. Piragoff: The original bill as passed in the House of Commons should have those words, but when it was printed after it was passed in the other place, those words went missing.

Senator Pearson: They are missing in French, too.

Mr. Piragoff: They are clearly in the bill that was introduced in the other place.

I will now address Senator Fraser's question. Yes, the bill would make it much easier to extradite in cases of war crimes or crimes against humanity for a number of reasons, one being the jurisdictional issue that we talked about. Quite often the crimes have been committed in a third country, not even the country the accused comes from. Again, that jurisdictional problem would be solved.

With respect to surrender to the Yugoslav and Rwandan tribunals, under the current Extradition Act, we could only surrender to states. We are not at this moment able to surrender individuals to the Yugoslav or the Rwandan tribunal. This bill would give us the ability to surrender to those tribunals.

Amnesty International may raise this issue, so I will try to answer in advance a question that they might perceive as a problem in the bill. This goes to the question that Senator Joyal raised regarding dual criminality.

The bill specifically provides in clause 3(2):

For greater certainty, it is not relevant whether the conduct referred to insubsection (1) is named, defined or characterized by the extradition partner in the same was as it is in Canada.

It does not matter if they call an offence genocide or crime against humanity or whatever. What matters is that you take the conduct that they are complaining about in front of a Canadian judge and ask the Canadian judge if that conduct, had it been committed in Canada, would be found to be an offence against a law in Canada. The judge might say that a given conduct is murder or unlawful confinement or kidnapping. That conduct meets the dual criminality test.

Even though we might not have a crime in the Criminal Code called genocide or crime against humanity or war crime by itself, the dual criminality test, as it is structured in this bill, would permit us to surrender to the Yugoslav tribunals.

The second issue about tribunals is the question of the International Criminal Court. The new court has not yet been created but the treaty was concluded this summer in Rome. Again there have been concerns about the question of dual criminality because of the long list of crimes. This bill provides a framework upon which to surrender individuals.

When the government decides to ratify that Rome treaty and to provide for implementation and ratification of the ICC, the International Criminal Court, the government will have to introduce legislative amendments to a number of federal pieces of legislation, and some more tinkering might have to be done to the Extradition Act. However, the basic structure of the act would apply to the Yugoslav tribunals and the ICC tribunals. That is not to say that in the future there might not be certain peculiarities either in this act or in other acts that we might have to deal with because of the issue of dual criminality and other issues that are germane to that particular treaty.

At this point in time the government is not implementing the ICC treaty. We intend to do so but we have not yet introduced a bill.

That is a long answer but I wanted to give you some background. I know that Amnesty International will be addressing some of those concerns tomorrow. It might be useful to get the government's views on some of those issues on the table in advance.

Senator Beaudoin: I should like to come back to the question of the Commonwealth because it is fundamental and something is not clear here.

Elizabeth II is Queen of the United Kingdom, Queen of Canada, Queen of Australia and Queen of New Zealand. She has several hats. The same person is the head of several independent countries. However, a judgement rendered by Lord Denning states that even if we said in this century that the Crown is not divisible, in practice it is divisible. The fact is that we have contracts between Canada and Australia, and so on.

The countries of the Commonwealth are listed at the back of the document. That means that this act applies to them because they are listed, not simply because the are Commonwealth countries. Is that not correct?

Mr. Piragoff: That is correct. The act applies because they are listed, not necessarily because they are Commonwealth countries. That they are Commonwealth countries was one of the criteria, but not necessarily the only criterion, used to put them on this list. Some Commonwealth countries are not on this list because of their human rights situation.

Senator Beaudoin: That is correct. That they are not on that list means that they are not concerned with this bill. That is clear now.

The second point deals with the Minister of Justice, who has always been, according to our statutes and our traditions, Attorney General of Canada at the same time. Clause 12 says that the minister "may authorize the Attorney General." There must be an explanation for that.

Again, perhaps the same person is doing two different functions -- one as Minister of Justice and the other as Attorney General. The function of Attorney General is related to prosecutions, generally speaking, or to legal advisor of the Crown.

In the Department of Justice Act, if I remember correctly, we list the powers of the Minister of Justice. There is more than one power. There is not only justice, but the legal advisor of the cabinet and the council of ministers.

Perhaps the situation may be reconciled by concluding that the same person, at the same time, is the Minister of Justice -- and has the functions listed in the appropriate Canadian statute -- and is the head of the prosecution within the federal jurisdiction. Perhaps that explains why we have considered, since Confederation and even before, that the Minister of Justice is at the same time the Attorney General. Is that not the explanation?

Mr. Piragoff: You have convinced me. I was trying to make that argument earlier to some of your colleagues. There is nothing inconsistent with the Minister of Justice and the Attorney General wearing two hats, because they are performing different functions.

Senator Beaudoin: That is correct. The same person is wearing two hats. One hat is that of Minister of Justice. We know what it is and we refer to the Department of Justice Act. The second function, or hat, is that of prosecution. In constitutional law, the Attorney General of Canada represents the Crown in right of Canada. It is in that capacity that the Minister of Justice is there, but he is acting completely differently. He says, for example, "You say that this federal statute is ultra vires, but I will plead that it is intra vires." He pleads before the Supreme Court not as Minister of Justice but as Attorney General. He is the attorney of the Queen in right of Canada. If that is not the explanation, I do not understand clause 12.

However, if that is the explanation, then perhaps it makes a lot of sense. Either you agree or you disagree.

Mr. Piragoff: I believe the government agrees with you that it is not inconsistent for a minister to wear two hats and to perform two different functions. That is especially true in this case, when the Attorney General, wearing that hat and performing that function, is not necessarily acting for Her Majesty in right of Canada, but is actually acting for the foreign state.

When we seek extradition to Canada from certain other countries -- the U.K., for example -- the Attorney General does not represent Canada in their courts. Instead, we must hire our own lawyers in the U.K. at our own expense to represent us. In Canada, we have decided that out of international comity for other countries, the Attorney General will represent those countries in our courts. It is even more removed than simply the Attorney General representing the Queen in right of Canada. In court, she also represents the foreign state and acts as their lawyer in the extradition proceedings before the judge.

Senator Beaudoin: I no longer have any problem with clause 12.

The Chairman: One example of an individual wearing two hats is in the military justice bill, Bill C-25, where the Judge Advocate General clearly wears two hats.

Senator Beaudoin: Yes, that is right. That is a precedent, yes.

Senator Bryden: In what functions?

The Chairman: Both prosecuting and defending.

Senator Bryden: Yes, but not at the same time. That is the problem. I do not disagree at all with what Senator Beaudoin said. The fact is that the Minister of Justice, in exercising some of her functions, is acting in one fashion as Attorney General. She acts in another fashion representing the Crown in prosecutions, and so on, and there is nothing wrong with that. The problem I have with this one is that not only is she wearing two hats but they are on two heads and the two heads are talking to each other; that is, the Minister of Justice is telling the Attorney General what the Attorney General is permitted to do.

Senator Beaudoin: Yes, but it is like the Queen in right of Canada and the Queen in right of Australia concluding a contract. It is the same person -- Elizabeth II. Perhaps she is acting in two different capacities: one as Queen of Canada and one as Queen of Australia. That is why Lord Denning said that in practice, the Crown is divisible. Even if we have said for 100 years that there is only one Crown in the British Empire -- and I still think that is true -- in practice it is divisible because no one contested that Australia and Canada could enter into a contract or a treaty.

Senator Bryden: I do not wish to go down that road because I do not agree with that, either.

I believe I was following what you said. I should like to go through it because I do find it peculiar, but I will not belabour the matter. Let us look at the authority to proceed and start with clause 15(1), which states:

The minister may...issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under section 29.

Then clause 16(1) states:

The Attorney General may, after the Minister issues an authority to proceed, apply ex parte...for the issuance of a summons to the person or a warrant for the arrest of the person.

That all makes pretty good sense to me as we go along. However, 23(1) states:

The Minister may substitute another authority to proceed at any time before the extradition hearing begins. All documents issued and orders made by the court apply in respect of the new authority to proceed, unless the court, on application of the person or the..

The missing words are "or the Attorney General orders otherwise."

Senator Beaudoin: That is right.

Senator Bryden: The minister will substitute another authority in place of the Attorney General.

Senator Beaudoin: Yes.

Senator Bryden: Unless the Attorney General, who is the minister, applies to the court to get the court to order otherwise.

Senator Beaudoin: Yes. That is right.

Mr. Piragoff: No. I do not believe that that is the way clause 23 is read. Clause 23 says that the minister may substitute another authority to proceed because only the minister has the power to issue an authority to proceed.

Senator Bryden: For whom is she substituting? Is she substituting for the Attorney General?

Mr. Piragoff: The minister may substitute one document for another document. Clause 15 gives the minister the power to issue an authority to proceed. She can take that authority to proceed away and give a different one that may have five more charges added.

Senator Bryden: Does she give it to the Attorney General?

Mr. Piragoff: That is right -- to the court, to the attorney general. All of the documents issued and orders made by the court that apply to the first authority to proceed also apply to the new authority to proceed unless the court, on the application of the person or of the Attorney General, orders otherwise.

In other words, the minister changes the document, by adding more charges, for example, and all of the other orders that the court has issued, such as orders concerning judicial interim release of the individual, continue to apply unless the Attorney General, who at this stage will be a prosecutor in Toronto or Vancouver or Montreal --

Senator Bryden: The Attorney General is Anne McLellan. She is not the prosecutor. The Attorney General is one person.

Mr. Piragoff: That is right.

Senator Bryden: That one person is accountable to Parliament, not the prosecutor. The prosecutors are accountable to the office of the Attorney General.

Mr. Piragoff: That is right.

Senator Bryden: In this instance you have the same person, the person whose name happens to be Minister McLellan, substituting another authority to proceed for the one that she had given already. That is valid, unless she makes an application as Attorney General to a court and has the court order otherwise.

Mr. Piragoff: No. The authority to proceed stays valid. It is all documents issued and orders made by the court. It is other documents, things such as an order of bail, for example, an order of detention. Every other order issued by the court continues to exist and apply, notwithstanding that there is a new piece of paper on the table.

Senator Bryden: Okay. Unless she, as Attorney General, applies otherwise.

Mr. Piragoff: Yes. As the Attorney General she could say that we now have five more charges and those charges are more serious. It is not robbery anymore; they want the person for murder. The person is on bail on judicial interim release. She may ask the court to cancel the judicial release and bring the person back into custody because she fears that the person may try to flee Canada since the charge is more serious.

Senator Bryden: It is expanding the authority.

Mr. Piragoff: Because of the new authority to proceed, the circumstances may have changed such that either the Attorney General or the person may want to have some other orders changed, such as judicial interim release. It could be a new order to proceed that reduces the charges from five down to one. As a result, the person may say that now that there is a new order to proceed he wants the bail order to be modified to let him out or to reduce some of the conditions.

Senator Bryden: You have made a number of legal academics happy with this bill.

Mr. Piragoff: I understand that two of them will be testifying tomorrow or over the next two weeks. You can ask them how happy they are.

Senator Bryden: I will ask them.

Senator Buchanan: I understood from the summary -- and I know that that is not part of the bill -- all requests by Commonwealth states. Yet, some Commonwealth states are exempted.

Senator Beaudoin: That is the distinction that we make.

Senator Buchanan: Is the summary therefore wrong?

Mr. Piragoff: No, it is not. You have to read it so as to understand that even though a Commonwealth state may not be designated on the list, a Commonwealth state can still make a request for a specific agreement, which is an ad hoc arrangement, and is case specific.

Senator Buchanan: I see.

Senator Beaudoin: But if the state is not listed and is in the Commonwealth, the state is not bound.

Mr. Piragoff: One of the conditions of obtaining a specific agreement is that the country will be bound by all of the terms and conditions of the act.

Senator Buchanan: In spite of the fact that a Commonwealth state is not listed on the schedule, could there be a specific extradition agreement with a state that is not listed?

Mr. Piragoff: It is not a general agreement. There are two types of agreements contemplated by this act. One is a regular, bilateral treaty that applies to all requests between two countries.

The second type of agreement is called a specific agreement and that would apply to a country that does not have a general extradition treaty with Canada or a country that is on the list. That agreement is only case specific. In this particular case, with this particular accused, Canada is willing to enter into a relationship with the country. In that situation, all of the safeguards and provisions of the act apply.

Senator Buchanan: Is that new?

Mr. Piragoff: Yes, it is. That is a new feature within common law countries. That feature was first instituted by the United Kingdom in its legislation about 15 years ago. It has proved to be very useful. It is the type of situation we would use for Japan. For example, if Japan were not on the list and we had a murderer from Japan in Canada and we were satisfied that in this particular case the person would get a fair trial and we were therefore willing to extradite, we would use this.

Senator Buchanan: Can a person from another country who is accused of a crime and flees to Canada because we do not have an extradition agreement with that country still be extradited by a specific agreement after the fact?

Mr. Piragoff: That is right. The government policy is that Canada will not be a safe haven for criminals.

The Chairman: India is a Commonwealth country and is not listed on this schedule -- in fact, none of the Indian subcontinent countries are listed. If there were a specific crime such as the bombing of an airplane, under this act, in this one specific case, could they be extradited to India?

Mr. Piragoff: We actually have a general treaty with India.

The Chairman: Is that why India is not listed?

Mr. Piragoff: Yes. The United States is not listed because we have a treaty with them.

Senator Grafstein: There is a topic of great interest to me, which I wish to raise. I will just put you on notice of this. You need not answer it today, but perhaps you can talk to the minister about it.

Justice delayed is justice denied. When it comes to war criminals, justice delayed has been justice denied. Our track record is sorrowful. I laud the government because I understand that Bill C-40 extends the extradition process to cover designated criminal tribunals rather than only foreign states. In effect, we are expanding it and making, on the surface, the extradition of war criminals more accessible. That is how it looks on the surface, but God and the devil sometimes lurk in the details.

Although I may be incorrect, I believe that there is an inconsistency in Canada's policy. On the one hand, we have been among the world leaders in international criminal justice tribunals, and that is commendable. However, in order to make it work, we obviously must make sure that our domestic law ensures expeditious extradition. It must be fair, just and expeditious.

Considering the principles behind this bill, is it fair to say that, rather than providing a fair and just extradition of those who are charged with crimes against humanity -- international crimes, which I believe are of a higher order of magnitude, in a way, than domestic crimes -- we have treated extradition in the same way as we would treat crimes between states? Does this bill do that, as opposed to ensuring that the process is expeditious? There may be appropriate delays because we are using the domestic extradition process as opposed to the process for extradition for international crimes; that is, crimes against humanity, et cetera.

I will give a specific example of that. Under the Supreme Court of Canada decision in Regina v. Finta there is a problem of double jeopardy or double criminal requirements. In effect, it is possible to argue that there is an inconsistency between domestic law and international law, which would be cause for delay.

Is that appropriate? Rather than expediting, in a fair, just and equitable fashion, the extradition of war criminals, we are, in effect, providing all the safeguards that are available for domestic criminals. Should we not be looking at a different order of expedition for extraditing war criminals?

That is my first reading of this. It may not be fair. I will study it further, but I would like your general comments on that and we can deal with the detail at another time.

Mr. Piragoff: You have enunciated the concerns that Amnesty International may be raising tomorrow.

Extradition, like any other act of government, is constrained by the Canadian Charter of Rights and Freedoms. Section 6 of the Charter provides specifically that every Canadian citizen has the right to enter or remain in Canada.

There was a case involving the extradition of an alleged war criminal to Germany in the 1980s. Section 6 was adjudicated. It involved the question of whether Canadian citizens have the right not to be extradited to Germany for a war crime case. The court said that extradition is an exception; it is reasonable justification, under section 1, to the section 6 right.

That means that all of the Charter guarantees about due process and fundamental principles of justice apply to extradition, to surrender of a person, in particular a Canadian citizen, out of this country. That means that just because an international tribunal may be seeking the trial of a person who is still only alleged to have committed a war crime, that person does not give up certain constitutional rights in Canada. They have the right to a judicial hearing; they have the right to appear before a court; they have the right to make certain arguments before the minister or a court with respect to their being surrendered out of Canada. That is the reason. Whether it is a state-to-state matter or a tribunal-to-state matter, we have tried to have a procedure that is essentially uniform across the board.

In that way, if there are two accused in a courthouse on the same day, one being sought by the United States and one being sought by the Yugoslav tribunal, the second person cannot argue under section 15 of the Charter that he or she is being discriminated against, that he or she is being dealt with under a different procedure than the other person.

We have tried to ensure that the procedural safeguards apply equally to all accused persons, whether they are wanted for murder in a state, or whether they are wanted for murders by the Yugoslav or Rwandan tribunal.

I am not sure if you were in the room when I mentioned the International Criminal Court. That also raises questions about dual criminality. There is a provision in subclause 3(2) which makes it clear that, in determining dual criminality, you do not have to match the foreign offence and the Canadian offence. It is not relevant whether the conduct is named, defined or characterized by the extradition partner in the same way it is in Canada. As long as we can find a Canadian offence which includes that conduct, we are able to extradite.

The other point about the ICC, the new court, is that the government will need to introduce legislation in order to ratify that treaty. Because of the detail and the peculiarities of that treaty as opposed to other types of treaties, we may have to make certain adjustments to a number of acts. It may require adjustments to the Extradition Act. Alternatively, we may be able to address some of the issues in the ICC statute by a self-standing statute.

While this act clearly would permit extradition to the tribunals, it provides a framework for surrender to the ICC. However, that does not mean that there might not be further amendments by the government to its ratifying legislation to also make some slight changes either to the surrender procedure or to other Canadian laws which would accommodate surrender to the ICC.

Senator Grafstein: I hope to come back to this after hearing from Amnesty International.

Senator Bryden: My question is about the International Criminal Court. I may be misinformed, but my understanding is that the United States is not a signatory to that treaty.

Mr. Kessel: No, they are not.

Senator Bryden: Could you briefly indicate what their problem with it is? That is likely to be raised before us tomorrow.

Mr. Kessel: I cannot speak for the United States. We simply do not. It is something that the U.S. does not like, either. I will put it this way: Canada was instrumental not only in chairing the diplomatic conference that steered this matter through, but also in trying to encourage all our traditional partners, including the U.S., to join us. The U.S. at the moment is reviewing their position. That does not mean that they will not sign it. The U.S. is actively engaged in the preparatory commission which is ongoing now and will be for the next year, trying to put in place elements of crimes and rules of procedure and evidence. The U.S. has not said categorically that they will never sign this. They have indicated that they have problems with some elements in the text, but they have indicated an interest and a willingness -- and they have demonstrated that -- to work towards finding solutions to make it easier for them to sign on.

Without speaking for them, I think their behaviour as of two weeks ago has been encouraging. Like all things south of the border, situations do change with the political spectrum. We look forward to their coming around.

Senator Bryden: They are very jealous of their sovereignty in the U.S. That is why their states will not go to arbitration to settle even a labour dispute. Is that a major factor in your discussions? You cannot speak for them, but have they raised that issue?

Mr. Kessel: We are all jealous of our sovereignty.

Senator Bryden: Some are more jealous than others.

Mr. Kessel: I would suggest that, in the extradition area, each time you enter into an agreement, you give up some of your sovereignty. That is the purpose of international agreements. You give up certain parts of your sovereignty in return for something else. I may suggest that the U.S. has been giving up parts of its sovereignty over extradition arrangements and treaties with other countries for generations. I do not see that as a major impediment to their possibly joining us on that international court in the future.

Senator Grafstein: There is a fundamental objection to this by their military.

Senator Joyal: I should like to return to the issue of the International Court of Justice.

[Translation]

For what reason does this bill specifically mention in clause 128 the two tribunals in Rwanda and the former Yugoslavia and does it not contain a clause allowing the Governor in Council to recognize other international tribunals? If we are legislating for several years, it is quite possible that another international conflict may arise somewhere in the world. There could be another international tribunal that constitutes, from the point of view of this bill, an entity responsible for requesting the extradition of certain persons. Why specifically name these two tribunals instead of having a more general clause allowing for the future recognition of other tribunals?

Mr. Lemire: Clause 9 notes that the names of the states or entities appearing in the schedule are designated as partners. Subclause 2 provides that the Minister of Foreign Affairs, with the agreement of the minister, may add to or delete from the schedule the names of other States or entities. The state or the entity is defined but clause 9 provides that this schedule may be amended.

In the case you raise, under clause 9(2), it is possible to designate in the schedule a new tribunal in order to allow for extradition to such a tribunal.

Senator Joyal: If the International Court of Justice were to begin operating, it would be designated in the same fashion if a sufficient number of States were to ratify the treaty in order for it to begin proceedings?

Mr. Lemire: The vehicle exists.

Senator Joyal: The vehicle exists in order to open up the application of this Act to other entities than those specifically named in the schedule.

Mr. Lemire: Exactly.

Senator Beaudoin: There is a general provision: any international criminal tribunal in the definition of entity.

Mr. Lemire: Yes, quite. Provision is made for any international criminal tribunal but in order for it to be a partner for possible extradition, it is necessary to have a designation under clause 9.

Senator Beaudoin: By the minister?

Mr. Lemire: Yes.

Senator Joyal: I would like to come back to clause 44(1)(a) that makes it possible to refuse a surrender order if such an order were to be considered unjust or oppressive having regard to all the relevant circumstances. In your study of jurisprudence, what exactly is an unjust or oppressive surrender? What criteria are used to come to a much more precise determination of this term, which, in my opinion, can open up the door to almost anything?

Mr. Lemire: This provision is based on article 7 of the Canadian Charter of Rights and Freedoms that provides that the person may not be handed over if he were to face a completely unacceptable situation or one that would be so shocking to the conscience of Canadians that extradition should not take place.

An example of this kind of situation would be torture. We do not allow for such situations. In such a case, I believe that the provision of clause 44(1)(a) would be quite relevant.

Senator Joyal: Is there any codification of all of these grounds, such as those you allege under article 7 of the Charter?

Mr. Lemire: A codification, yes, an exhaustive list, no.

Senator Joyal: There must certainly be a number of cases in jurisprudence?

Mr. Lemire: The test was established by the Supreme Court in the Allard and Charette case. It is a specific application of the test I refer to: will the person be faced with a completely unacceptable situation? A particular application of this test took place in Kindler, a case involving the death penalty where the Supreme Court held that in the circumstances, surrender was not contrary to the Charter.

Courts have also considered other situations where the argument was made that the individual would be subject to an unacceptable situation. This was specifically the case for certain long sentences that could be given in the United States, particularly for drug offences. Courts have given consideration to such cases where the individual would be subject, for example, to a minimum prison sentence of at least 10 years without parole or even stricter sentences. I am thinking of the Jamieson case where the individual would be subject in the United States to a sentence of 20 years in prison without parole for trafficking in cocaine. The Supreme Court ruled on the matter and maintained the minister's decision to order surrender in the circumstances, in spite of the severity of the sentence. The court considers that we must ask ourselves this question, rather than export our criteria: is a situation so unacceptable that we must refuse extradition, the final result being that a person who is accused of a serious crime must face justice in Canada?

[English]

Senator Joyal: I will return to that issue later when we have other witnesses before us.

The Chairman: We will be hearing other witnesses.

Since there are no further questions, I thank our witnesses very much for appearing before us today.

The committee adjourned.