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Canada's unfair extradition system needs major reform: legal and human rights experts

OTTAWA — Canada's extradition laws need a thorough overhaul to ensure fairness, transparency, and a balance between a desire for administrative efficiency and crucial constitutional protections, say legal and human rights experts.

OTTAWA — Canada's extradition laws need a thorough overhaul to ensure fairness, transparency, and a balance between a desire for administrative efficiency and crucial constitutional protections, say legal and human rights experts.

In a report released Thursday, the voices calling for reform say the Canadian process for sending people to face prosecution and incarceration abroad is riddled with shortcomings that make the system inherently unjust.

The recommendations for change emerge from the Halifax Colloquium on Extradition Law Reform at Dalhousie University in September 2018, which brought together academics, defence counsel and human rights organizations.

The report acknowledges the importance of extradition in an increasingly globalized world where criminal activity often traverses borders, but highlights "a number of problems" with how proceedings unfold through the 1999 Extradition Act.

"Canada fulfils most extradition requests from other countries, and individuals who are sought for extradition are almost always unsuccessful in challenging it," the report says.

"But is this as it should be?"

The advocates for reform highlight the case of Ottawa sociology professor Hassan Diab, a Canadian citizen who was extradited to France and imprisoned for over three years, only to be released without even being committed to trial.

"It is worth recalling that, when the Extradition Act was brought in, Parliament was assured by the Department of Justice that Canadians would not moulder away in foreign states awaiting trial, nor would extradition procedures be used to facilitate foreign investigation," the report says.

"Hassan Diab’s case shows that neither of these promises is being taken seriously."

In the Canadian extradition process, Department of Justice officials first determine whether to authorize the start of proceedings in the courts through what’s known as an "Authority to Proceed."

Once an Authority to Proceed has been issued, the Canadian courts have to decide whether there is sufficient evidence, or other applicable grounds, to justify the person’s committal for extradition. When someone is committed for extradition, the justice minister must personally decide whether to order the individual's surrender to the foreign state. 

Someone sought for extradition may appeal their committal and seek judicial review of the minister’s surrender order — a process that can play out for months or even years in the courts. 

The report released Thursday says the committal process compromises the ability of the person sought to meaningfully challenge the foreign case against them, reducing Canadian judges to rubber stamps and permitting use of unreliable material.

Diab's lawyer, Donald Bayne, said Canada's extradition process is "essentially an unjust system" unworthy of a modern, constitutional Canada. 

"Extradition involves the deprivation of liberty of Canadians, and others, without any sworn evidence at all," he told a news conference Thursday to launch the report.

The surrender decision made by the justice minister is a highly discretionary and explicitly political process, unfairly weighted toward extradition, the report says.

The Justice Department's International Assistance Group facilitates the extradition of people to face prosecution or sentencing in the country in which they are charged or convicted.

However, the group is "excessively adversarial" in the way it conducts proceedings, acting without any separation between the litigators and the decision-makers, the report says.

All this takes place under a "veil of unnecessary secrecy," it adds. The group behind the report advocates changes including:

— A presumption of innocence in the committal process, as well as more use of first-person evidence and cross-examination to allow the person sought to challenge the reliability of the case against them;

— Timely disclosure of exculpatory evidence possessed by either the requesting state or the Canadian government;

— A more exacting standard of review for the minister's surrender decisions, and changes to the law to hand some legal questions to the courts;

— Permitting surrender only if the requesting state is ready to take the case to trial;

— Explicit consideration of Canada's obligations under international human rights law;

— A requirement that, if diplomatic assurances are used to facilitate surrender, they be meaningful, transparent, monitored and legally enforceable;

— Reformulation of the International Assistance Group's role so members seek a fair and just result rather than a litigation "win";

— Adequate oversight of the assistance group's activities, including public scrutiny;

— Barring extradition, in cases where Canadian citizens are sought, in favour of a Canadian prosecution, where possible, unless the government can prove it is actually in the interests of justice to extradite.

Dalhousie University law professor Rob Currie said the report had been sent to Prime Minister Justin Trudeau and Justice Minister David Lametti, among others.

"But what is most pressing is that Parliament look seriously at what extradition actually looks like in Canada and what it should look like in the future," Currie said. "Canadians should have a say in this, and it is well past time for law reform."

Lametti's office had no immediate comment on the report.

This report by The Canadian Press was first published Oct. 21, 2021.

Jim Bronskill, The Canadian Press

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