Civil International Space Station Agreement Implementation Bill C-4
Senate Debates, December 14, 1999

Hon. Serge Joyal: Honourable senators, I wish to advise you of my grave concerns about Bill C-4 which implements Canada's ratification of the international agreement creating the Civil International Space Station. I am indebted to my colleague Senator Grafstein for bringing this issue to my attention while I was attending to the Legal and Constitutional Affairs Committee study of Bill S-10.

Bill C-4 contains provisions, in clause 11, which raise questions about the power of the Minister of Justice to authorize the extradition of Canadian citizens to states where the death penalty may be imposed. Clause 11 of the bill amends section 7 of the Criminal Code by inserting new subsections which have the effect of extending the application of the Criminal Code to the international space station. The proposed new subsection of the Criminal Code, subsection (2.31), reads in part as follows:

- a crew member...who commits an act or omission outside Canada...that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada -

The net result is that Canada's criminal jurisdiction is extended to the new international space station. Moreover, the criminal jurisdiction is exercised in cooperation with 14 other countries under the international agreement governing the space station. Consequently, the other 14 contracting states will have similar provisions under their penal law. In clause 11, Bill C-4 raises precisely the same substantive matter that was raised in clause 42(2) of Bill C-40 in the last session, namely, the discretion of the Minister of Justice to order an extradition where the death penalty applies. Once again, there is no safeguard against the death penalty for persons extradited from Canada.

As you will remember, I stated the fundamental principles supporting my position on the essential question of the death penalty in the spring of this year when the Senate dealt with Bill C-40, respecting extradition. During the third reading debate on that bill, I supported an amendment proposed by Senator Grafstein which would have required the Minister of Justice to secure an undertaking from the requesting state that the sentence of death would not be imposed or, if imposed, would not be carried out. Rather, the death penalty would be changed to a mandatory life sentence without the possibility of parole. In my mind, leaving the discretion over life and death of any person in Canada to a minister of the Crown is fundamentally wrong and contrary to the provision of section 7 of the Canadian Charter of Rights and Freedoms.

These important questions are currently the subject of the Burns and Rafay case that was heard in the Supreme Court of Canada this year. This case, as you will remember, involves the decision of the Honourable Allan Rock, P.C., to authorize the extradition of two 18-year-old Canadian citizens to a state in the United States where they are charged with murder and may face the death penalty. In formulating his decision, Mr. Rock did not seek any assurance that the death penalty would not be sought by the prosecuting authority in that jurisdiction. The Supreme Court ruling has yet to be rendered, but the learned justices ordered a re-hearing in the case on October 25, 1999.

In his testimony on Tuesday, December 7, 1999 before the Foreign Affairs Committee, Mr. Yvan Roy, general counsel of the criminal law policy section in the Department of Justice, explained that the power of a Minister of Justice to authorize extradition would continue to be one of complete and unfettered discretion and is not qualified by Bill C-4. The statement made by Mr. Roy was:

...the Minister of Justice, who is responsible for the application of the Extradition Act, may refuse to make a surrender order when the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against that person.

Mr. Roy also acknowledged that the court ruling in the Burns and Rafay case may create an obligation on the minister to demand assurances before authorizing extradition in such cases. He said.

Mr. Chairman, you know that the matter actually is presently before the Supreme Court of Canada in Burns and Rafay. It may very well be that another section of this particular piece of legislation will have to be invoked, depending on what the Supreme Court of Canada will have to say if the death penalty were to be an option in the foreign state, again depending on what the Supreme Court of Canada says. According to current law, there is no such obligation, but that may become the law, depending on that judgment.

Honourable senators, given these circumstances, and taking into account the principles that I have already explained in detail on the public record in the Senate on the very issue of the death penalty last spring, I cannot in good conscience vote in favour of clause 11 of Bill C-4 which gives effect to the agreement for shared criminal jurisdiction on the civil international space station. Consequently, I wish to declare for the record that I intend to abstain from voting when the question is put for the third reading of Bill C-4.