Earlier this month, the Canadian House of Commons Standing Committee on Justice and Human Rights issued its long-awaited report, Reforming Canada's Extradition System. Technically speaking, the report was the result of a couple of weeks of hearings that were held by the Committee earlier this year. However, it is safe to view the report as also representing a breakthrough on the part of a coalition of advocacy voices in Canada (of which I am one) that has, for years, been pointing out serious problems with Canada's extradition law and practice and advocating for reform.
During the hearings the Committee heard from a number of members of this coalition, including my friends and colleagues Alex Neve, Professor Joanna Harrington, Don Bayne (counsel for Hassan Diab), Tim McSorley and UK extradition expert Anand Doobay. I have set out the Committee's recommendations below, but the best way to sum it up is that the various concerns raised by critics of Canada's extradition system were heard, understood and digested by the Committee members. Most tellingly, they have recommended that the government "undertake comprehensive reform of the Extradition Act as soon as possible and consider making changes to the extradition process, not requiring legislation, in the interim, in order to avoid further injustices in extradition proceedings."
Most gratifying was the fact that the Committee gave consideration to the Halifax Proposals for Extradition Law Reform, a law reform proposal generated by the Halifax Colloquium on Extradition Law Reform, which I chaired in 2018. Quite a number of our recommendations were picked up by the Committee members, who saw clearly the profound problems relating to fairness and justice in this country's extradition process--demonstrated most compellingly by the Hassan Diab case.
The question now is quite simple: what will Justice Canada do with this report? A unanimous set of committee recommendations, endorsed by all of the parties represented in Parliament, and speaking to pressing justice issues, surely cannot be ignored. The case for law reform has never been clearer, and it is time that the government acted.
Here is the Committee's list of recommendations:
RECOMMENDATION 1
That the Government of Canada commission an independent review of all
extradition treaties and identify partners with a history of serious human
rights violations.
RECOMMENDATION 2
That the Government of Canada modernize outdated treaties and withdraw
from treaties with partners that seriously contravene international human
rights standards.
RECOMMENDATION 3
That the Government of Canada examine whether domestic extradition law
and processes adequately reflect international standards.
RECOMMENDATION 4
That the Department of Justice’s International Assistance Group receive the
training it needs so that it can conduct gender-based analysis plus in the course
of its duties.
RECOMMENDATION 5
That the Extradition Act be amended to add the risk of torture as grounds to
deny an extradition request for a person sought.
RECOMMENDATION 6
That the Extradition Act be amended to require the Government of Canada to
negotiate diplomatic assurances with partner countries when there is a
potential risk of torture following extradition, and that Canadian courts be
authorized to order the Government of Canada to negotiate such assurances.
RECOMMENDATION 7
That the Department of Justice collaborate closely with the Department of
Foreign Affairs to negotiate diplomatic assurances, and that the Department of
Justice also participate in the follow-up to ensure that extradition partners in
fact adhere to these conditions.
RECOMMENDATION 8
That the Extradition Act be amended to give Canadian courts, in the case of
abuse of process by a partner state, the power to refuse to order the
detention, thereby halting the extradition process.
RECOMMENDATION 9
That the Extradition Act be amended to lower the required threshold to rebut
the presumption of reliability of the extradition partner’s record of the case at
the committal hearing.
RECOMMENDATION 10
That section 33 of the Extradition Act be amended to enshrine an obligation for
a partner state to undertake the holding of the trial of a person sought for
extradition within a year of the surrender to the foreign state.
RECOMMENDATION 11
That the Extradition Act be amended to add a legal obligation for the
Department of Justice to disclose to the person sought for extradition any
exculpatory evidence in its possession or that it knows of that could
compromise or weaken the request of the partner state.
RECOMMENDATION 12
That the Extradition Act be amended to introduce a “forum bar” rule, which
would allow individuals committed for extradition to file a request before a
Canadian court of law so that their prosecution be held in Canada, when a
significant portion of the offence is committed in Canada and when it is in the
interest of justice to prosecute here.
RECOMMENDATION 13
That the Extradition Act be amended to introduce a “human rights bar” rule,
which would allow individuals sought for extradition to submit evidence to be
considered at the committal hearing if they believe that the requesting partner
state is seeking prosecution for reasons that are incompatible with human
rights law, and upon such finding by the judge, that the person’s discharge
be ordered.
RECOMMENDATION 14
That the Extradition Act be amended to give the extradition judge a greater
role relative to that of the Minister of Justice, particularly by granting Canadian
courts the power to rule on the fairness of the extradition order, taking into
account the situation of the person sought and the extradition partner’s
respect for human rights.
RECOMMENDATION 15
That the Extradition Act be amended to expand the scope of section 44(1)(b)
and include the criterion of a sufficient causal connection in regard to assessing
prohibited grounds of discrimination.
RECOMMENDATION 16
That the Extradition Act be amended to expand the list of enumerated grounds
under section 44(1)(b) to include gender identity and gender expression, to
reflect the language of the Canadian Human Rights Act.
RECOMMENDATION 17
That the Extradition Act be amended to include, in the list of reasons for
refusal to extradite, the presence of a major disparity between Canadian
sentencing and sentencing in the partner state.
RECOMMENDATION 18
That, within six months of the end of each fiscal year, the Department of
Justice publish on its website all data, statistics and internal policies, with the
exception of confidential information, in order to ensure that the extradition
process is transparent and that the public is better informed on the subject.
RECOMMENDATION 19
That the Government of Canada issue an annual report to Parliament on the
implementation of the Extradition Act, which would include, but not be limited
to, the number of extradition requests submitted to Canada, the country that
submitted them, the alleged offences, whether the person to be extradited is a
Canadian citizen or a permanent resident, and the diplomatic assurances
provided by the partner country.
RECOMMENDATION 20
That the Government of Canada undertake comprehensive reform of the
Extradition Act as soon as possible and consider making changes to the
extradition process not requiring legislation, in the interim, in order to avoid
further injustices in extradition proceedings.
