Proceedings of the Standing Senate Committee on
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.
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
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
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.
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
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
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.
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
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.
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
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.
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.
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
Mr. Lemire: I would be hard pressed to give you a clear answer on that. I could
Senator Buchanan: My understanding was that this Taiwanese case was a unique
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
Senator Buchanan: That is right.
Mr. Lemire: In my view, this bill would address those concerns.
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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?
Senator Joyal: I will return to that issue later when we have other witnesses
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.