Law Times

Law Times • February 12, 2018 Page 7 www.lawtimesnews.com Extradition law needs reconsideration BY MATTHEW GOURLAY A ccording to an old joke among lawyers, in an extradition case there is usually only one strate- gic decision to make — window or aisle. This is not too far from the truth. In the spirit of international co-operation, extradition is meant to be efficient, with a meaningful consideration of guilt or innocence largely deferred to trial in the foreign state. The defence has very limited ability to prevent the client from involun- tarily boarding a plane. The recently concluded legal ordeal of Hassan Diab has exposed some troubling consequences of this streamlined process. Diab, originally from Lebanon, was a lec- turer at the University of Ottawa. He had been here for many years and is a Cana- dian citizen. In 2008, French authorities sought his extradition because they sus- pected he was the mysterious person be- hind a 1980 bombing outside a Paris syna- gogue. The evidence against him was thin, at best. The most contentious item was a handwriting analysis that purportedly matched Diab's handwriting to that of the suspected culprit on a hotel registration card. The soundness and validity of this analysis was strongly criticized by several experts retained by the defence. After an unusually lengthy committal hearing, the extradition judge viewed the case against Diab as "weak" and consid- ered conviction to be "unlikely." Nonethe- less, because the applicable test does not turn on the strength of the prosecution's case, the judge concluded that he was bound by law to commit Diab for extradition. A lengthy decision from the Ontario Court of Appeal in 2014 confirmed this decision and upheld the surrender or- der of Rob Nicholson, then the federal minister of Jus- tice. Diab was sent to France, where he languished in soli- tary confinement for three years. Last month, Diab was finally released from custody and returned to Canada, never having ac- tually faced trial. Our extradition system appears to have enabled the prolonged and pointless detention of an innocent man. The case is troubling not because the Canadian courts got it wrong. Rather, the decisions committing Diab for extradi- tion seem to me to have faithfully applied Canadian extradition law. As Diab and his lawyer Don Bayne have eloquently ar- gued, it is the extradition law itself that is need of reconsideration. Our extradition system is premised on international comity and is designed to deliver up the person sought to the re- questing state with reasonable speed and efficiency. It presumes that countries with whom Canada has signed extradition trea- ties can be trusted to hold a fair trial; there is accordingly no need to pre-determine the person's guilt or innocence in Canada before sending them abroad. The Crown, acting on behalf of the requesting state, needs only to demonstrate a prima facie case, and it can do so through a summary of evidence it expects to tender at trial rather than offering up the evidence itself. Once that low bar is met, the court's role is exhausted and it's up to the minister of Justice to exercise her broad discretion to "surrender" the person for extradition. Granted, the Supreme Court in Ferras has held that a court can refuse committal on the basis of evidence that is "manifestly unreliable." But this jurisdiction has been interpreted narrowly. Soon after the Court of Appeal dismissed Diab's appeal, the Supreme Court of Canada split sharply in the case of M.M. v. U.S.A., where a mother was sought by the state of Georgia for kidnap- ping her children. She claimed that she f led with her children to protect them from their abusive father. Under Canadian law, this would have provided her with a defence. Under Geor- gia law, it wouldn't. A majority of the court nonetheless upheld her extradition in circumstances the dissent labelled "Kaf- kaesque." Extradition law has to grapple with a pretty difficult tension. On the one hand, it should be difficult to forcibly remove someone from their own country. After all, one of the fundamental incidents of citizenship, ref lected in s. 6 of the Charter, is the right to stay put. On the other hand, Canada owes it to other civilized countries to co-operate with reasonable requests and not become a safe harbour for fugitives. I recognize that this is a tough balance to get right. But I think Diab and Bayne are correct that the balance has swung too far in favour of facilitating extradi- tion without regard to the quality of the evidence or the circumstances in which it was gathered. Many countries — like France, as it happens — refuse entirely to extradite their own citizens and have not become pariah states. Without adopting that posture, we can still ensure that we don't send our citizens abroad on cases as f limsy as the one against Diab. One way to do this would be to adopt a more robust standard at the front end: Instead of asking whether there is some evidence against the accused, we could require the court to determine whether there is evidence on which a reasonable jury could convict. Without turning extradition hearings into full-f ledged trials, we could still re- quire the requesting state to demonstrate that they have evidence on which, in the view of an extradition judge, a trier of fact could safely enter a conviction. Diab's case suggests that the perils of a lower threshold are just too great. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. Civil forfeiture, an uncivil remedy BY JUSTIN SAFAYENI O ntario's Civil Remedies Act is an extra- ordinary and draconian piece of legis- lation. It allows the attorney general of Ontario to bring proceedings against people who have never been charged with — let alone convicted of — a crime to forfeit their cash, cars, houses or any other form of property. Basic notions of justice and fairness demand that these powers be reigned in. The act was originally introduced as a way to thwart organized crime by making it unprofitable. But since its passage in 2001, the act has been used aggressively, repeatedly and successfully by the attorney general in cases that have little or nothing to do with organized crime. This track record highlights why significant legislative changes are required. The most fundamental issue with the act may be its sheer breadth. Under the act, civil forfeiture applies to property that is either the "proceeds" of or an "instrument" of "unlaw- ful activity" (subject to narrow statutory defences that almost never apply). According to the act, proceeds means property ac- quired "directly or indirectly, in whole or in part, as a result of unlawful activity." And, under the act, an in- strument means "property that is likely to be used to engage in unlawful activity that, in turn, would be like- ly to or is intended to result in the acquisition of other property or serious bodily harm to any person." These provisions cast the forfeiture net far too wide. Houses partially financed from the sale of drugs can be forfeited. So, too, can vehicles used to effect minor drug transactions. In one case, an entire 12-unit residential apartment complex was forfeited because residents in four units dealt drugs in their units and in common areas of the building. Consistent with its original purpose, the scope of the act must be narrowed. Cash f lowing directly from criminal activity is one thing. However, forfeiting a car, house or apartment complex because of some partial or indirect link to illegal activity is quite another. When it comes to an instrument of unlawful activ- ity, the test must be more than a nebulous requirement to show property is "likely to be used" a certain way in the future. At a minimum, the attorney general must also prove that the property was, in fact, used in unlaw- ful activity in the past. Compounding the problematic scope of the act is the range of "unlawful activity" that may lead to forfeiture proceedings. It applies to any offence under any federal, provincial or territorial act. As Michael Bryant put it in a 2001 legislative session, while he was an MPP in the opposition, you could have your property seized "be- cause you violated the beekeepers act." These concerns are not academic. Courts have justi- fied the forfeiture of cash on the basis that it came from trading in used cars, contrary to the Motor Vehicles Dealers Act. Not all "illegal" conduct should give rise to a risk of civil forfeiture. Ontario should restrict the scope of the act to violations of specific legislation (or provisions of legislation), such as the Criminal Code and the Con- trolled Drug and Substances Act. Yet another problem with the act is that it treats civil forfeiture proceedings largely the same as any other civil case. Proof is on a balance of probabilities, and it may be satisfied based on circumstantial evidence. Adverse inferences may be drawn against a property owner who fails to provide evidence or explanations. Again, no criminal charge or conviction is required. But civil forfeiture should not be treated the same way as other civil claims. These cases are instigated and litigated at the behest of the attorney general, they benefit from the state's virtually limitless legal and investigative resources and they often carry very serious consequences for property owners. In these circumstances, requiring the attorney gen- eral to meet an intermediate standard of proof — akin to the "clear and convincing evidence" standard in certain professional disciplinary regimes — would offer at least some degree of protection against overreach. The unfairness of applying the civil standard of proof comes into even sharper relief when one considers that the attorney general need not identify precisely what unlawful activity forms the basis for for- feiting a piece of property. For example, cash is often forfeited without any finding of a connection to any specific type of unlaw- ful activity. Instead, courts conclude that the circum- stances surrounding the cash are "suspicious" and, in the absence of a detailed or convincing responding ex- planation, order forfeiture as a result. The bar cannot be set so low. As one court put it, "[T]he concept of freedom in- cludes the freedom to be eccentric [and] the freedom to carry cash instead of paying transaction fees to banks . . ." To guard against forfeiture in these kinds of situa- tions, the act should, at the very least, require the attor- ney general to tie the property in question to a particu- lar type of unlawful activity. No one should bear a legal or tactical onus to justify simply holding cash in their pocket, car or under their bed. Finally, courts should be given greater f lexibility in terms of offering relief from forfeiture. The act grants courts a limited discretion to refuse forfeiture where "it would clearly not be in the interests of justice" — a very high standard. This discretion should be expanded to allow for a more nuanced consideration of the overall fairness and proportionality of a forfeiture order in the circum- stances of a given case. Civil forfeiture may have a role to play in our justice system. But such an extraordinary power requires care- ful limits in its application and explicit protections for those who may be impacted. The act falls short in both respects. Nearly 20 years after its inception, it is time for the legislature to take another look. LT uJustin Safayeni practises civil, constitutional and administrative law at Stockwoods LLP in Toronto. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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