Canada's extradition laws need revamping, says Dalhousie law school professor

The case of Hassan Diab, who was extradited to France and imprisoned for three years on terrorism charges described as “fundamentally weak,” highlights the problems with Canada’s Extradition Act and the proceedings that fall under that legislation, says Dalhousie law professor Robert Currie.

Specifically, Currie argues in a paper published in the Manitoba Law Journal that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, “is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to this unfairness.”

Currie also writes that regardless of the act’s constitutionality, considering the Diab matter and “other disturbing cases,” the time is ripe for law reform to ensure that extradition proceedings are carried out in a way consistent with Canadian public policy.

In an interview, Currie says that Canada’s extradition laws have increasingly come under scrutiny over the last few years, focusing on the mechanics and application of the 1999 Extradition Act.6.

He says that the revised law achieves the then-stated goals of making the extradition process more efficient and easier to access for states requesting extradition. However, it has reduced the courts' role and put too much power and discretion in the hands of the elected government, specifically the Minister of Justice, and the lawyers who advise the minister.

“The new law went way too far in accommodating foreign states, Currie says. “There must be a meaningful way for the person facing extradition to meaningfully challenge the case against them, and that is what was removed from the extradition process under the under the existing act.”

Currie, whose expertise includes laws relating to trafficking and transnational crime, adds that given the increasing presence of cross-border and global criminal activity, it is essential for Canada to be an “enthusiastic” participant in co-operating with other states on extradition matters.

However, Currie says it is equally vital that our extradition system be “procedurally fair and protective” of the rights of individuals caught up in it including, Canadian citizens who are sought by foreign states for prosecution.

He says changes are needed to the committal process, which he argues is “not Charter-compliant.” As well, the role of the International Assistance Group, the group of federal lawyers who advise the Justice Minister on these matters, should be “re-thought and restructured,” as they can act as a de facto judge and jury.

Currie adds that the “veil of obscurity” of Canadian extradition law has been yanked open in the last several years, most recently with the case of Huawei CFO Meng Wanzhou. She was arrested in Vancouver in December 2018 on an American extradition warrant.

Currie says it has embroiled Canada in “what is easily the most complex and daunting foreign policy dispute it has faced in decades and put our extradition relations firmly on the public radar.” He adds that the fact that Meng has financial resources shows that in most cases, “it takes a person like this, who has these kinds of resources to properly fight a case like this.”

Currie says that he would also want Canadians to think about the case of Diab, a Canadian citizen of Lebanese descent. He was extradited to France in 2014 to face terrorism charges relating to a 1980 attack, only to be released from prison more than three years later. Currie says, the French case against him was “exposed during the extradition hearing as being without foundation.”

More recently, a highly-criticized extradition case ended in the death of the individual in the process of being extradited. The leading recent extradition decision by the Supreme Court of Canada, MM v United States of America, dealt with an extradition request by the U.S. for Michele Messina, a dual Canadian-U.S. citizen who fled the state of Georgia with her children in 2010 for fear of her abusive husband.

After she was arrested at a women’s shelter in Quebec, Messina fought extradition for nine years. In its 2015 decision, the Supreme Court of Canada upheld her surrender despite clear evidence that had her conduct occurred in Canada, she would have had the defence of necessity available, a defence not available in the U.S.

With a majority of 6-3, the SCC ruled that that question was a matter for the foreign trial court. Then-Justice Minister Jody Wilson-Raybould agreed to re-consider the case but eventually confirmed the surrender order. The Supreme Court later denied leave to appeal on the confirmed order in October 2019. Messina died by suicide in prison three weeks later.

One of the weaknesses of the current extradition law, Currie says, is that it allows requesting states to simply send a summary (Record of Case, or ROC) of the evidence against the person for whom extradition is being sought. “It is presumed to be reliable, that’s built right into the act,” Currie says. “So, there’s is a problem with the law itself on the reliability of that summary, which makes it hard to overcome.”

In 2006, the SCC ruled in United States v Ferras that an extradition judge, unlike a judge at a preliminary inquiry, may engage in a limited weighing of the evidence to determine whether there is a “plausible case.” When the evidence summarized in the ROC is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case is considered insufficient for committal.

The SCC said the judicial review ensures that the extradition process does not “deprive the person sought of the independent hearing and evaluation required by the principles of fundamental justice applicable to extradition.”

Scrutinizing the reliability of the evidence for committal was the subject of some disagreement between provincial appellate courts. However, the SCC’s MM V United States of America decision in 2015 addressing this, ruling that the threshold for that challenge had to be very high.

The Court held that extradition judges have a restrained role in assessing the reliability of evidence. They are not to weigh competing inferences that might arise from the evidence. The SCC confirmed extradition judges have no power to deny committal “simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial”.

Currie notes that the judge who presided over the Diab extradition hearing after the MM ruling described the French case as being so weak that “if Diab received a fair trial in France, he would likely be acquitted - but that nonetheless, Canada’s extradition law required that he be surrendered.”

Currie also reviews 198 post-Ferras committal decisions between 2006 and 2017 and found only 16 successful challenges. A closer look at the 16 cases shows that the evidence presented was not “defective or unreliable,” but not present on one or more of the charged offence elements. Currie describes the challenged evidence as “fairly hopeless.”

While the Ferras case promised the defendant would have the opportunity to challenge weak evidence, what the case law shows, says Currie is that it merely produced a narrower chance in cases where there is no evidence to point it out.

“Other reliability issues with the requesting state’s evidence, no matter how grave, are simply left for the requesting state’s trial courts to sort out,” Currie writes in his paper. “It also raises the possibility that after the constriction of Ferras . . . the window of fairness for the person sought is so narrow that we must be fearful that wrongful extraditions are happening.”

While recognizing the need to be an efficient and relatively quick process, Currie says that any reform of the act should be specific about the “presumption of innocence” in the person for whom extradition is being requested.

 While the committal process should not turn into a criminal trial, Currie says a more effective method of scrutinizing the evidence of requesting nations is needed. Not the entire case, perhaps, but critical evidence, such as a primary witness, he says, something that is much easier to achieve in a world getting used to Zoom or other virtual hearings.

 “We need to come up with a process that is efficient, but fair,”