Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 64 - Evidence
OTTAWA, Wednesday, March 24, 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, met this day at 3:47 p.m. to give clause-by clause consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session.
I would like to welcome all of you, including our television audience, to Room 257 in the East Block. We are fortunate to be able to meet in this 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 that the room be preserved as a record of that historic event, in commemoration of which it was named "Summit Room."
Today, we conclude our consideration of Bill C-40, the 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 this bill in principle. Bill C-40 was then referred to this committee for detailed consideration.
The committee has heard from government officials, Amnesty International, the Criminal Lawyers' Association of Ontario, and Dean Anne La Forest from the University of New Brunswick. Our final witness was the minister responsible for Bill C-40, the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada.
Today, the committee will conduct clause by clause consideration of the bill. We will decide whether to pass the bill as is; recommend amendments; or recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
Before proceeding to clause-by-clause consideration of the bill, I would ask members of the committee if any of them are intending to move amendments to this bill. If so, I would appreciate being informed of these amendments now so that other clauses can be grouped appropriately.
Senator Beaudoin: On our side, we discussed this bill again and have decided not to present amendments. If amendments are proposed from the government side, we will consider them this afternoon. We have given full attention to all the declarations that we heard. I missed the last one, unfortunately, because I was unable to be here for the Minister of Justice. Those who were here briefed me and at this stage, I must say that I have no amendment to propose on Bill C-40.
Senator Joyal: Madam Chair, I would like to inform you that I would prefer to abstain on the clause-by-clause vote on that bill for two specific reasons. I have heard the witnesses. I was absent for part of the testimony of the Minister of Justice. I was occupied with other urgent business but was nevertheless able to read the proposal of the Minister of Justice.
I recognize that the list of witnesses that we have heard was comprehensive and was key to our understanding of the scope and impact of this bill. Nevertheless, I still have reservations about some aspects of the bill. Those reservations are linked to the question of Canada's unfortunate record in dealing with war criminals. Historians have written at length on that issue. I am not satisfied that this bill answers the fundamental implications of a system that will be much tighter and more effective to deal with that aspect of our reality. Moreover, there are aspects of the bill for which there are expert witnesses, whose names have been mentioned during the course of our exchange, but who were not available at the time. I recognize that the reason that they did not appear was not due to a lack of effort on the part of the chair. Nevertheless, the question they would have addressed has not been, to my mind -- and I say this respectfully of my colleagues -- answered in a satisfactory way. Therefore, at this stage I would prefer to abstain from voting on this bill clause by clause.
Senator Grafstein: I also intend to abstain. Let me give you my reasons. I am not ready for clause by clause, because we have a dichotomy between the government on the one hand and Amnesty International and the Criminal Lawyers' Association of Ontario on the other. At my request the department responded to the objections, and you were kind enough to allow me to take a look and have a copy of that yesterday. I spent last evening examining that document and I am still not convinced. I believe we should take another few days to examine this.
Yesterday, I attended a meeting of the Foreign Affairs Committee where we were dealing with the preclearance bill, and a very interesting parallel occurred in that committee. The government was satisfied with the bill, yet, at the urging of the committee we hastily called the Canadian Bar Association to respond. They came up in a very short time with a number of fundamental concerns. The government then decided to defer hearings for a few days, and spent the week discussing their objections with the Canadian Bar Association. They then came back with four serious and substantive amendments, which we approved. The committee did not accept all the objections of the Canadian Bar Association, but at least they talked to them and dealt with those issues. I thought it would be appropriate for us to do the same thing. We could give the government further opportunity, unless there was some great national urgency to proceed with this bill, to sit down and discuss with Amnesty International and the Criminal Lawyers' Association and try to find common ground. In addition, we should hear from some practitioners. There was one outstanding practitioner, Edward Greenspan, who was unavailable because he was otherwise engaged in court matters, but he has undertaken to appear three weeks today, if in fact that was open to the committee. I would be very interested in hearing what he has to say. I spoke to him on the telephone, and one of his concerns, I believe, is substantive. I want the committee to have the opportunity to share those views, as well.
In addition, this is a new bill. It is a dramatic improvement on the current situation as it applies to extradition, not only between states, but with respect to international tribunals. However, today in the U.K., a very important landmark decision is about to come down dealing with the issue of extradition, and that is the case of Mr. Pinochet. It strikes me that perhaps we should take this important decision into account before we enter into clause by clause.
If the chair advises that these issues are not as important as the urgency to pass this bill, I will understand. However, I have not detected any public urgency in proceeding quickly other than the convenience of the committee.
Finally, Madam Chair, I want to echo what my colleague Senator Joyal said. Canada has an admittedly bad record, and we have heard it from three witnesses: Amnesty International, the Criminal Lawyers' Association and the minister. We have a terrible record when it comes to war criminals. This bill is meant to deal with that issue. Yet, we have a fundamental dichotomy between those experts on war criminals, both the Criminal Lawyers' Association and Amnesty International, on whether or not this bill will expedite, in an appropriate fashion, those cases. I have read the government's responses to those objections but I am not convinced. Under the circumstances, I would think that unless there is a pressing public need to proceed with this bill in the next few days, another week or two will not hinder the public interest. After all, we are here to give this bill a second, careful look. For the moment, I will follow my own conscience on this matter and abstain. If I had adequate time, which I have not because of commitments on other committees, I might have considered proposing amendments myself if I could come up with an appropriate set of recommendations that would satisfy my own concerns.
Let me conclude by mentioning one other fundamental policy issue that is at stake here. The minister made a very compelling and passionate argument about one provision of the bill, which she said gives her discretion, and that is in the extradition of criminals who come to Canada and are to be extradited to a state or nation that has the death penalty. In Canada we have debated that issue and concluded that in our humane society we do not want to have a death penalty. Yet the minister indicated that she wants to retain that particular discretion. You will recall that the Criminal Lawyers' Association and Amnesty International believe that it should not be a discretionary matter but one of compulsion. The minister should not be able to extradite, notwithstanding the crime, if the penalty involves the death penalty. Now, she can do it on conditions and she can do it in a number of different ways. Yet, I am still not convinced. Having said all that, chair, I would hope that the committee might give some consideration to extending the hearings for a few more days. Failing that, I will abstain on clause by clause.
The Chairman: I should point out that the English House of Lords decided today that Mr. Pinochet can be extradited. They have reaffirmed their first decision.
Also, as to whether we have been pushing this bill through too quickly, this is now the fifth meeting on this bill. We have certainly approached a lot of witnesses and asked them to come before us. Most of them declined, I assume because they may have agreed with the bill or for other reasons.
Senator Bryden: With due respect to my colleagues, I would like to present the other case. We followed the normal procedure with this bill. The bill was introduced in the House. It was debated in principle at second reading with Senator Fraser leading it off and Senator Beaudoin replying. It was referred to this committee in the normal manner. There was no whip or anything of that nature. I have been on this committee for some time. We followed the process of hearing the officials, bringing the witnesses, inviting witnesses who were interested -- including Amnesty International, the Criminal Lawyers' Association of Ontario, and the academic, Dean La Forest. The minister appeared and remained as long as we had questions to put to her. At this stage, when we are ready to go to clause-by-clause review, she directed her officials to do what Senator Grafstein and I agreed was a good idea. Her officials have provided a point-by-point rebuttal of the issues that were raised by Amnesty International and the Criminal Lawyers' Association.
I have had the opportunity to participate in all of the hearings -- to hear the examination of the witnesses, to examine the witnesses myself and to listen to the commitment on all of their parts. In a number of the areas, on which I had some concern, there was no unanimity among witnesses. For example, there is the issue of the discretion of the death penalty being with the minister. Amnesty International said, no, it should be absolute, and the Criminal Lawyers' Association of Ontario agreed. The minister took the position that she needs to have the discretion. Dean La Forest said the same thing for very practical reasons.
It is always possible to improve a piece of legislation. The Pinochet case has now been removed as a reason but it would always be better if we had knowledge of those events before making a final decision.
I take the point that there is no pressing urgency in the sense that there is an extradition that must be done or that is pending and can only work with this enactment. Virtually every witness indicated that this bill is a significant advance on the current situation, and where it is not, it is a codification of what we do have. Compromises were made throughout to balance the expeditious use of the surrender provision, which is recommended by some of the international tribunals, and what Amnesty International would prefer -- the two-track process. This bill relies on the extradition process, albeit an expedited process. Some of my colleagues and myself are concerned about the evidentiary rules and the issues of jurisdiction. Our concern is whether the summary of the proceedings received, upon which the decision will be based, and the exercise of discretion may not be even too expeditious.
We could continue to hear witnesses. We would continue to hear competing interests. At some point, we would be able to make a more informed judgment. On the other hand, I think we have thoroughly examined this legislation. I find nothing in the legislation that would cause me to say that there is something sufficiently wrong, either in principle or in detail, that would cause us to delay. Further delay might make us feel more comfortable perhaps because we have exhausted all of the possibilities. The process we have gone through has really attempted, and to my satisfaction at least, has gone as far as we need to go in order to be able to pass this bill clause by clause.
I respect my two colleagues' positions. As we all know, there is the opportunity if time is available to propose amendments and to make a speech on third reading, as well. I put out my view for the committee's consideration.
Senator Pearson: I should like to support Senator Bryden. With respect for my colleagues, I have learned one thing over the four years that I have been here, and that is that the law is always in process. As Senator Beaudoin knows, we are about to go back to youth justice again. Like Senator Bryden, I have tried to listen hard and I can see some of the concerns. I do not feel uncomfortable enough not to go ahead now and see in practice whether some of the problems that we have been warned about emerge. We could then come back at it again. It was never written in stone.
Senator Fraser: In a sense, I will say more of the same, chair. I have profound respect for our two colleagues, both eminent lawyers, both parliamentarians with long years of experience -- neither of which qualities I have. However, I have had to think about this bill for some time now because I am its sponsor. I have been thinking about it since last October. Like all of us, it took me some time to wrap my mind around this bill because it is a very complex and delicate attempt to mesh our law with the law of other countries with good judicial systems -- not countries with foul judicial systems. We will not be sending people off to dictatorships that lop off your head as soon as you cross the border. This bill is to deal with other fine countries, whose judicial systems we respect, but that have different rules. Therefore, we have to make some changes and introduce some concepts with which we have not been familiar in this country.
We have to make some practical compromises, as my colleagues have suggested. I have looked and read and listened and questioned. I have become satisfied that we are unlikely to be able to strike a better balance of all of the interests that compete justifiably and legitimately in the drafting of a piece of legislation like this.
Senator Beaudoin: Several days ago, I had the advantage of discussing this bill with two senators from Italy. As you know, they have abolished the death penalty. Their reaction was a bit different.
Of course, we may always improve. I usually do not object unless we are in an urgent situation. However, we have the discretion enshrined in this, and this is the reason we have decided to go ahead without any amendment at this stage. We are satisfied that it is probably the best decision at this time. If in the following months it is shown that this bill needs improvement we can always come back to it. In principle, I always favour the Charter of Rights. Nevertheless, I am impressed by the fact that there is a discretion. It is up to the Minister of Justice to use that discretion adequately. In Europe, it is much easier because those countries have abolished the death penalty. But in North America we are faced with that problem. Unfortunately, the death penalty exists in several American states. We are facing a really difficult situation and I am not totally satisfied. Will it be better for me to wait two or three weeks and to hear other witnesses? I am inclined to agree with Senator Bryden, at a certain time we have to say yes or no. Having discussed that with my colleagues, we have come to the conclusion that it is acceptable.
The Chairman: Then I would ask the committee members if they are prepared to proceed to clause-by-clause consideration of Bill C-40.
Senator Fraser: I would move that the committee dispense with clause by clause consideration of Bill C-40, the extradition act, and that Bill C-40 be reported to the Senate without amendment.
The Chairman: All those in favour?
Senator Grafstein: I am not sure about the procedure, but I want to note my abstention on the clause by clause and the report. I believe I am entitled to that. I had to stand up in the Senate the other day as opposed to calling for division since I was the only one abstaining to note it, separate and distinct from that. I hope that you will note in your report my abstention, and bring it to the attention of the Senate if it is mechanically possible to do so.
The Chairman: I have just been told by the clerk that, procedurally, the report is the report of the majority of the committee. It is the majority report and so your abstention shows in the minutes of the committee but is not reported in the Senate. I believe that this is the normal procedure when a committee reports.
Senator Beaudoin: When I was chair of this committee I had that big problem twice and I will remember it all my life. There was especially a problem with the gun control bill. You are probably right, legally speaking. An abstention is an abstention. I do not see anything wrong in reporting that a majority of the committee was for it and there were two abstentions. This is exactly what we do when we sit in the full Senate and we are an emanation of the Senate here. We are the Senate but as an emanation. I have no hesitation in saying that this bill is adopted by five or six, with two abstentions. I do not see any problem with that. If someone raises the point on a point of order, I think I will fight for those who would abstain. They have the right to abstain. They have it in the Senate, why not here?
The Chairman: That is quite right, Senator Beaudoin. We do have the right to abstain whenever one wishes and in a standing vote in the Senate the abstentions are remarked. If it is the wish of the committee I will certainly report abstentions and I see heads nodding around the table, so I will do so.
Senator Joyal: Madam Chairman, please add my name to that.
The Chairman: We will have the vote first, and then I will report on the number of abstentions.
Is it agreed, honourable senators.
Hon. Senators: Agreed.
The Chairman: It is moved by the Honourable Senator Fraser that Bill C-40 be reported to the Senate without amendment.
All those in favour?
All those opposed?
Abstentions? There are two. That will be noted.
Honourable senators, I declare the motion carried.
For the benefit of our television audience, we have now completed the clause-by-clause consideration of Bill C-40. We will take this bill to the floor of the Senate, where I will report that the bill has carried in committee, with two abstentions.
Honourable senators, everyone should have the two budget documents in front of them. The one entitled "Standing Committee on Legal and Constitutional Affairs" is the draft budget proposed for this year. If you go to the last page, you will see that the grand total we are proposing for this year is $36,660. In comparison, the total that we requested last year was $35,400. You will notice that we spent only $6,400 of it. We are a bargain. This committee is, I might say, the cheapest committee in the Senate.
Senator Beaudoin: This committee is a masterpiece. We do all the work and cost nothing.
The Chairman: Senator Grafstein assures me that he does not object to anything whatsoever in this budget. He quite approves of it all. We could go through it for comparison. For information only, the second, third and fourth pages are the comparisons from year to year. We have gone up this year from $35,400 to $36,600. You can see that the only increases are on that first page, under the first item, professional services -- communications. Last year we budgeted for $3,500. We spent every bit of that. It is fairly expensive and we thought we should increase that budget.
Under item three, membership and registration fees, fees are up this year. We are increasing the budget from $1,400 to $1,600. Other than that, this year's budget is identical to the last.
Senator Bryden: One of the reasons for the increase is under membership and registration fees. There is a significant conference, which will take place in Ottawa. It would be useful for some of our staff and those people who assist us greatly. If some senators wish, we could pay it out of our own budgets. It would not require any travel. It is a wonderful opportunity because the mountain has come to us to give our staff the opportunity to participate.
Senator Beaudoin: What is the conference?
The Chairman: It is "Guiding the Rule of Law into the 21st Century." It will take place at the University of Ottawa on April 16 and 17. I believe we should send two of our staff. I intend to go myself and I am paying for it out of my office budget. I believe the committee should pay for the staff to go.
Senator Joyal: Who is hosting the conference?
The Chairman: It is hosted by the Institute for Research on Public Policy in association with the Political Law Development Initiative and the Centre on Governance at the University of Ottawa. I will keep this here for anyone who is interested in attending.
Senator Beaudoin: I am 100 per cent in favour of that. You raise a very interesting point. We have in Canada, from time to time, very important law conferences. It would not be unreasonable to participate in those conferences. Of course, we could pay for it from our own discretionary budget. We could use our points for the travelling costs. We should discuss this conference. This committee is very efficient and we have a very small budget, as it should be.
I am in favour of attending those conferences probably because I was an academic. A few thousand dollars is nothing for the benefit we may receive.
The Chairman: I agree with you.
Senator Bryden: I think it would be helpful if the staff of the committee becomes aware of conferences and times and so on that are coming up. It would be useful, no matter whose budget it comes from.
The Chairman: Yes, and it would help keep the committee informed that these conferences are happening.
Senator Beaudoin: We have the Canadian Bar Association here as experts and they are excellent. They have a meeting every year. I do not remember any meeting of the bar in the last 20 years that did not deal with human rights or subjects like that.
The Chairman: I quite agree. Are there any other questions? As I said, everything else is exactly the same as last year, except for those two items. We are reducing the amount of money that we are spending on meals because we did not spend it anyway. We did not have time to eat the meals that we did order in.
Do I have a motion? In that case, if we are all agreed, would someone please move that the following budget be submitted to Internal Economy for approval?
Senator Moore: I so move.
The Chairman: It is moved by Senator Moore and seconded by Senator Beaudoin. I shall go and fight our battles in front of the Finance Committee or the Finance Subcommittee of the Standing Committee on Internal Economy, Budgets and Administration.
Senator Pearson: May I ask you a question about the Criminal Code? Do you buy the most updated version on a regular basis out of this budget?
The Chairman: We talked about the purchase of books and periodicals because every senator who was on the committee six months ago received a copy of the most recent version of the Criminal Code. This year, the Steering Committee is suggesting that instead of buying the bound editions, we buy two copies of the loose-leaf edition, which is in both English and French. That edition will be here in the committee room all the time for members of the committee to look at or in the clerk's office for members of the committee to examine. This edition is constantly updated and upgraded so that we will be up to date. It is quite an expensive book, so we thought that we would need just two.
Senator Bryden: It is about $800 for the loose-leaf edition, and that is in perpetuity.
The Chairman: Yes, and you receive all the upgrades as they come in.
Senator Bryden: That is included in the price, as I understand it.
Senator Beaudoin: I agree entirely with that because half of our business deals with the Criminal Code. We should have the loose-leaf edition of the Charter of Rights, also.
The Chairman: We have the Charter of Rights, which is just one page, but we could have the loose-leaf edition of the Constitution Acts, if that is what you mean.
Senator Beaudoin: No, that costs only $10, but we have many cases a year on the Canadian Charter of Rights. I think that we should have perhaps one or two loose-leaf copies in your office.
The Chairman: I believe that you are quite right. We probably should have that. Our budget is increasing here by an unknown amount. We have an amount in here of $1,000 for miscellaneous, so we can leave the amount as it is and pass the budget as it stands and we are still covered if we want to be able to do that. I think it is quite a reasonable suggestion.
Is it agreed, honourable senators.
Hon. Senators: Agreed.
The Chairman: Honourable senators, I declare the motion carried. I will take it to the Standing Committee on Internal Economy, Budgets and Administration.
The committee adjourned.