Bill C-15 (Historical)

International Transfer of Offenders Act

An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences

International Transfer of Offenders Act

[Michel Guimond, Bloc, Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC]

Mr. Speaker, I am pleased to speak to Bill C-15, which, the House will recall, was introduced by the former solicitor general, the current member for Malpeque, on April 28, 2003. The purpose of the bill at that time was to replace the old Transfer of Offenders Act. The Transfer of Offenders Act has been in effect for over 20 years.

I would like to say as I begin that the Bloc Quebecois will oppose this bill. I shall explain the reasons. We must admit, however, that there are certain elements in the principles of the bill with which we agree. I will talk about them after I have listed the main reasons that we cannot support the bill. In short, the Bloc Quebecois will oppose it.

We know that the bill proposes substantial amendments to the current act; in section 3, it clearly states that the primary purpose of this act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in Canada or in their country of origin. Later provisions of Bill C-15 set out the conditions and procedures used to achieve this purpose.

The fact that this bill is directed towards facilitating this administrative procedure is totally desirable and the Bloc Quebecois will be supporting the guiding principle.

In brief explanation of what this bill contains, I will say that clauses 4 and 5 list the criteria for eligibility to make a request for transfer.

The consent requirement set out in clause 8 is essential to the smooth operation of this procedure if it is to respect the principles of fundamental justice. It is clearly stipulated that the transfer requires the consent of the foreign entity, Canada and the offender. Clause 9 sets out the rules governing the consent of Quebec and the provinces. It is specifically stated that consent must be given before any transfer for which Quebec and the provinces will be responsible.

Once again the Bloc Quebecois, which regularly reaffirms Quebec's jurisdiction in a number of areas and which condemns federal interference in those jurisdictions, agrees with this section that consent will be required before any transfers to Quebec can take place.

The assessment criteria are set out in clause 10 of Bill C-15. As stated in this clause, it is up to the minister to assess the factors related to the transfer. It is also a matter of whether the offender's return would constitute a threat to the security of Canada. The minister will also take into consideration the offender's intentions of residence, and finally whether family ties are sufficiently strong to warrant granting the request for transfer.

If a foreigner has been found guilty of an offence in Canada, the minister must also take into account the likelihood of the offender's subsequently committing acts of terrorism. In light of the events of September 11, 2001, the whole notion of whether an offender is likely to subsequently commit acts of terrorism becomes important.

Paragraphs 3 and 4 of this clause address factors relating to assessing requests from young offenders. Clause 11 stipulates that requests must be in writing and refusals must be justified.

Clause 12 of Bill C-15 would make verification of the offender's consent the minister's responsibility.

Clauses 13 to 15 deal with the continued enforcement of offenders' sentences, with the purpose of complying with the criminal law of foreign countries, a principle with which we agree. The rule of law must be upheld.

Clause 16 sets out conditions for probation and the related equivalency.

As for clauses 17 to 20, they deal with the terms and conditions for the transfer of young people.

The Bloc Quebecois is of the opinion that special attention ought to be paid to these clauses. Expert advice could certainly enlighten us, especially in the context of the opinion of the Court of Appeal of Quebec. That is the position of my party.

I thank my colleague, the member for Saint-Hyacinthe—Bagot, for giving me the opportunity to speak to this important bill. The member for Saint-Hyacinthe—Bagot, who is a public safety critic, had the opportunity to say—and he will also have the opportunity to repeat—that the Bloc Quebecois is against Bill C-15. I will explain why.

We cannot be in favour of this bill since, despite the recent opinion of the Court of Appeal of Quebec in the Government of Quebec's order regarding the reference concerning Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other acts, the federal government decided to go ahead and impose adult sentences on young persons.

In the context of this debate on Bill C-7, I would like to take the opportunity in this House to acknowledge the work the Bloc Quebecois has done on the bill and to remind hon. members of the work of our former colleague and Bloc Quebecois member for Berthier—Montcalm, who literally went crusading to every corner of Quebec, where Quebeckers reaffirmed his opposition to the treatment of young offenders.

The Quebec Appeal Court ruled that the provision in Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other Acts which established that adult sentences could be imposed on young offenders aged 14 and over, rather than 16 and over, for serious crimes, contravened the Canadian Charter of Rights and Freedoms. The court ruled that this provision violated section 7 of the Charter, by requiring the young offender to prove he should not be sentenced as an adult.

Hon. members will understand the importance of what is termed in law the burden of proof. The burden of proof is on the young person to convince the court why he ought not to be sentenced as an adult. The Quebec appeal court judges found that this presumption constitutes a breach of the rights, freedom and psychological welfare of young offenders and does not conform to the principles of fundamental justice.

Bill C-15 provides that young offenders aged between 14 and 17 transferred to Canada will automatically be deemed to be serving an adult sentence, as defined in the Youth Criminal Justice Act, if their sentence is longer than the maximum youth sentence that could have been imposed in Canada.

This is where we have a problem. We in the Bloc Quebecois feel this clause contravenes the very principles set out by the Quebec appeal court and thus violates section 7 of the Charter.

In conclusion, the Bloc Quebecois will be unable to support Bill C-15, which includes provisions that are in contravention of the Charter and impact negatively on young offenders' rights.

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

Madam Speaker, I agree that if a Canadian citizen commits a crime in another country he or she should pay the price imposed by that country and not by this country, a country that is well-known under this government for its bleeding heart approach to justice.

The former solicitor general's press release also stated that “society is best protected when offenders participate in correction programs in Canadian institutions and communities and when their release is supervised”.

I disagree. Society is best protected when offenders spend an adequate period of time incarcerated to prevent others from being harmed and for allowing rehabilitation to effectively occur.

The government is not concerned or interested in preventing Canadians from being harmed. It is not interested in putting in place adequate penalties that act as deterrents. It is not interested in restitution being made to victims.

The Liberal government is only concerned about treating offenders as poor, misguided persons who are somehow not responsible for the crimes regardless of how heinous or how terrible those crimes have been and how many victims they have left scarred, sometimes for life.

On the subject of victims I must point out that under clause 8 of Bill C-15 the consent of three parties is required for a transfer: the consent of the offender, the consent of the foreign country or entity and the consent of Canada. Nowhere in the bill do we see that the consent of the victim is required. In other words, if a child is raped in this country and a foreign entity requests the transfer of the offender, the victim and the victim's family have absolutely no say in the transfer and, therefore, no say in the parole assessment and decision, and they are not apprised of when the offender is released in the foreign country. I see no provisions for this in Bill C-15.

In 2003 the Department of Justice introduced the Canadian statement of basic principles of justice for victims of crime in which it states that the need for victims should be taken into account in the criminal justice system. Consequently, these needs should be taken into account in the decision of whether a transfer is or is not warranted.

Subclause 10(4), in reference to young offenders being transferred, clearly states:

In determining whether to consent to the transfer of a Canadian offender who is a child within the meaning of the Youth Criminal Justice Act, the primary consideration of the Minister and the relevant provincial authority is to be the best interests of the child.

In other words, if a 17 year old goes to a foreign country and rapes an 11 year old, for which the punishment in that country may be fairly substantial, the person would be transferred here and given the maximum of three years. What about the 11 year old victim? What is in the best interest of this victim? What is in the best interest of closure for the victim and closure for the victim's family? What is in the best interest of society or the best interest of our children who may become the next victim of this offender? Where is the consideration for public safety?

In closing I would like to point out another aspect of the bill that is, in my opinion, in question, and that is clause 38, transitional provision, which reads:

This Act applies in respect of all requests for transfer that are pending on the day that this section comes into force.

In other words, the bill would become retroactive. We will push the bill through and make it retroactive to effectively deal with all of those who are facing this kind of incarceration in other countries at the present time.

Why is it that when an act favours the offender, the one who has committed the crime, that it can be retroactive but when retroactivity does not favour the offender, such as in the sex offender registry or the DNA data bank, it is not retroactive?

We can draw some very conclusive reasons. The government is more concerned about the rights of the offender than it is about the victim. It is more concerned about the offender, the one who has caused sorrow and pain, than it is about the one whose family has been victimized.

We cannot support the bill for those reasons. It is unjustly unbalanced in favour of the offender over the victims and over the protection of society.

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

Mr. Speaker, I rise today to debate Bill C-15, amendments to the transfer of offenders act. This legislation was first introduced as Bill C-33 in the last Parliament and was debated almost a year ago.

In fact, I stood in the House on April 29, 2003, condemning the Liberal government because it came forward and provided less than 24 hours between the time we received a copy of the bill and had a first chance to look at the legislation and the time we were asked to first stand and debate the bill. It was less than 24 hours later that we were asked to debate the bill.

I said that the government's move to force debate was “indicative of its inconsideration” for Parliament and of its “disrespect” for Parliament and also for the opposition. It was totally inconsiderate of the government to provide so little time for us to digest the content of this legislation before initiating debate. In my mind, the only rationale for such inconsideration and such an irresponsible move was that the government was devoid of any other meaningful legislation. In other words, I said then, the government's agenda was “empty”.

Now, a year later, the agenda remains that way because this government has yet to seek a mandate to govern. Quite obviously the government is in neutral, or worse, it is coasting backwards. It is losing ground. Nothing has changed since April 2003, when the Prime Minister, then only a leadership hopeful, said:

But in recent times a kind of complacency--a certain amount of drift--has set in. We've lost some of the energy and enthusiasm that Canadians are looking for.

He was talking about Parliament. The member for LaSalle--Émard, now the Prime Minister, after months of silence on his government's agenda and his own plans for moving the country forward, at that time was chronicling his predecessor's lack of achievement and inaction.

Pointing toward Ottawa's strained relationship with the United States administration over the war in Iraq, the lack of focus on the waiting lists in the health care system, and the outbreak of SARS, the member for LaSalle—Émard said that these areas required immediate attention.

Well, Mr. Speaker, this Prime Minister has now been the Prime Minister for over four months and he has not moved the agenda forward at all. We are still in limbo because, again, this Prime Minister does not have a mandate to govern.

With regard to the legislation before us today, Bill C-15 repeals and replaces the old Transfer of Offenders Act to expedite the transfer of Canadian citizens serving sentences in penal institutions abroad from those institutions to penal institutions in this country. It also provides for the expedited transfer of foreigners serving sentences in Canada to their home countries.

Bill C-15, in my opinion, is nothing more than a reaffirmation that public safety and the rights of the victims are not priorities at all with the government. Bill C-15 is but one more attempt by the government to tip the scales of justice in favour of the offenders.

Clause 3 of Bill C-15 states:

The purpose of this Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

In a press release on Bill C-33, the former solicitor general stated that the Transfer of Offenders Act was more than 20 years old and only authorized the transfer of offenders between Canada and recognized states. Furthermore, he stated:

...this bill is significant from a humanitarian perspective. Conditions of confinement in some countries impose severe hardships on Canadians.

If Bill C-15 were about humanitarian efforts, if it were to ensure that Canadians would not be subjected to inhumane treatment, we would support the bill. We would support it because the fundamental principle within our justice system is the right to a fair trial and the right to humane treatment. However, as members will note, even if we look at the summary of Bill C-15, that is not what this is about.

If we look at the purpose and principle section of Bill C-15, the legislation is not about humanitarian efforts. This legislation is not only about allowing Canadian citizens who commit crimes in other countries to serve their sentences in more humane prisons, it is about bringing them home and, in some cases, putting them in prisons that are club fed types of institutions, resorts. It is about reducing the sentence imposed by another country.

Bill C-15 sets an alarming precedent in its attempt to impose the norms of the Canadian criminal justice system upon crimes committed and adjudicated somewhere else.

Clause 14 reads:

Subject to subsection 17(1) and section 18, if, at the time the Minister receives a request for the transfer of a Canadian offender, the sentence imposed by the foreign entity is longer than the maximum sentence provided for in Canadian law for the equivalent offence, the Canadian offender is to serve only the shorter sentence.

This is because under clause 13 it states:

The enforcement of a Canadian offender's sentence is to be continued in accordance with the laws of Canada as if the offender had been convicted and their sentence imposed by a court in Canada.

In essence what we have here is that a Canadian citizen could go to another country, commit a crime for which there would be a much more substantial penalty, and be transferred home to serve a lesser sentence. What this could amount to is immunity of Canadian citizens. In my opinion, that is wrong. It flies in the face of recent Supreme Court of Canada jurisprudence.

In Kindler v Canada, Justice McLachlin, writing for the majority, observed:

The simple fact is that if we were to insist on strict conformity with our own [criminal justice] system, there would be virtually no state in the world with which we could reciprocate. Canada...would be the loser.

Furthermore, in the United States v Burns, the Supreme Court of Canada made the following observation:

A competing principle of fundamental justice is that Canadians who are accused of crimes in [a foreign jurisdiction] can ordinarily expect to be dealt with under the law which the citizens of that jurisdiction have collectively determined to apply to offences committed within their territory, including the set punishment.

I agree that if a Canadian citizen commits a crime in another country, that person should pay the price--

[Yvon Charbonneau, Liberal, Parliamentary Secretary to the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness (Emergency Preparedness)]

Mr. Speaker, I am pleased to speak today to Bill C-15, the International Transfer of Offenders Act, at third reading stage. After second reading and consideration in committee, this bill has received strong support from all members who have taken part in this debate so far. Now is the time to move on to the third and final stage.

The current Transfer of Offenders Act came into force in 1978, following a United Nations meeting where member states agreed that international transfers were desirable because of increasingly greater mobility and the need for countries to cooperate on criminal justice matters.

Since 1978, only technical amendments have been made to this act. Policy issues relating to international transfers have expanded due to Canada's greater experience with treaties and legislative amendments brought about by the Corrections and Conditional Release Act in 1992, Bill C-41 on sentencing in 1995, and Bill C-45 on sentence calculation reform in 1996.

Bill C-15, which we have before us for third reading, would modernize the legislative framework authorizing the implementation of treaties, including multilateral conventions on the international transfer of offenders. I am particularly proud to sponsor this bill because of its objectives relating to public safety and the humanitarian objectives it will advance.

The purpose of this bill concerning the transfer of offenders and related treaties is essentially humanitarian. Canadian citizens are often imprisoned in countries where they are unfamiliar with the language and culture. Furthermore, it is not unusual for the places where they are held to fall short of even the most rudimentary Canadian standards for health, hygiene and safety. The isolation felt by Canadians in these difficult conditions of detention adds to the hardship they face, especially without regular contact with family and friends. Awareness of these conditions also causes suffering to the offenders' families in Canada.

This legislation has another important goal. It will contribute to protecting Canadian society. For offenders who are serving prison terms outside Canada, rehabilitation may be impossible. Often, the countries where they are imprisoned do not have any treatment programs or parole systems. In addition to this shortfall, there is the lack of direct support by family and friends, which is often the key to reintegrating offenders into society. This lack of programs and support reduces their chances of long term rehabilitation, and this has an impact on public safety. That is why it is so important to be able to repatriate Canadians.

The International Transfer of Offenders Act will also contribute to the administration of justice. Canadian offenders who are returned to Canada must serve their foreign sentences right to the end. When they arrive in Canada, they come under the authority of the Correctional Service of Canada, or a provincial corrections service, which is responsible for their gradual and controlled reintegration into society. This solution is preferable to deporting offenders to Canada at the end of their sentences. If they are deported, they arrive here with no correctional monitoring and no help in reintegrating into society.

Most states recognize the importance of cooperation in criminal justice matters.

The states enforce criminal laws and sentences to dissuade people from committing illegal acts. However, offenders do not escape justice by purging the remainder of their foreign sentence at home. The international transfer of offenders program allows countries to do this.

In its consideration of this legislation, the government consulted 91 private and governmental organizations. These consultations and consideration confirmed the need to clarify and update the current Transfer of Offenders Act, which, as I mentioned, dates back to 1978.

This resulted in proposals to amend the legislation that would reflect traditional international treaty principles, close identified gaps, ensure consistency with other legislative provisions, and improve efficiencies of the transfer of offenders.

For example, Bill C-15 would integrate a clause stipulating that the purpose of this new legislation is to contribute tothe administration of justice, the rehabilitationof offenders and their reintegrationinto the community by enabling them toserve their sentences in the country of whichthey are citizens. This important characteristic would clarify the intended purpose of this legislation. It would contribute to the interpretation of the legislation and to ensure parliamentary endorsement of the approach and policy behind legislation.

The voluntary consent of the offender to his transfer is also a key principle which, in reality, serves as the foundation for Canada's participation in the international transfer of offenders. This notion is based on the traditional humanitarian objectives of treaties. This is a critical notion, because the prospects for an offender's successful rehabilitation and reintegration would likely be compromised if an offender were forced to transfer against his or her will.

Foreign states may also be less inclined to approve a transfer on humanitarian grounds if the offender has not willingly consented. This is why Bill C-15 would reflect this important principle.

To ensure truly informed consent, the bill provides that Canadian authorities must explain to offenders how they would serve their sentence upon their return to Canada. In this context, the bill also provides that Canadian authorities must give to any foreign offender who asks for a transfer to his country of origin information provided by that state and describing how the offender would serve the rest of his sentence in that country.

The current Transfer of Offenders Act does not provide for the transfer of young offenders who are on probation. This omission is not compatible with the provisions of the act. Indeed, the act authorizes the transfer of adult offenders who are on probation, or who are serving a term of imprisonment. Bill C-15 would correct this inconsistency by making young offenders who are on probation eligible for a transfer.

The current Transfer of Offenders Act does not provide for the transfer to Canada of children who may be serving a sentence abroad. Bill C-15 would correct that by authorizing the transfer to Canada of children of Canadian origin who are under 12 years of age and who are being detained abroad. The bill also provides that, following their transfer to Canada, children would not be detained under the terms of their foreign sentence. Instead, they would be covered by the legislation dealing with the well-being of children in the relevant province or territory. This is an illustration of the humanitarian nature of the bill.

These provisions would broaden the scope of the offender transfer system and advance the primary objective of this legislation.

At this time, Canada may enter into a treaty for the transfer of offenders only with recognized foreign states. Recent international events such as the dissolution of the U.S.S.R. and Yugoslavia highlight the need for a transfer mechanism for Canadians serving sentences in jurisdictions not recognized by Canada as foreign states.

In these cases, a considerable amount of time must pass before the jurisdictions are formally recognized as foreign states. Consequently, Canadians incarcerated and serving sentences in these jurisdictions do not have access to the international transfer process when a treaty does not exist between Canada and a foreign state or when one has been negotiated but ratification is still years away.

In all these cases, there may be compelling reasons to return an offender to the home country. That is why Bill C-15, clause 31, which is a major clause in this bill, provides for the negotiation of administrative arrangements with a foreign entity or non recognized state, in order to render the transfer system more sensitive to the international situation. It would allow Canada to transfer its citizens back home under the authority of Correctional Services Canada, which would be responsible for the gradual and controlled reintegration of these offenders into Canadian society.

Most offenders benefit from transfer agreements. Although the number of entities having signed and ratified treaties or conventions on the transfer of offenders is still limited, it is increasing. Serving a sentence in a foreign country adds to the seriousness of the sentence and often denies the offender access to the correctional programs and community support that are essential to his reintegration. It is not in society's best interest for things to continue this way.

The Transfer of Offenders Act and the treaties and conventions implemented by that act have achieved their goal and continue to play an important role in Canada's international relations. Major progress has been achieved in prisoner transfers. Every year, about 85 Canadians are transferred to Canada under a treaty or a multilateral convention for the transfer of offenders. Since 1978, more than 1,000 Canadians have been repatriated and more than 100 foreign offenders transferred to their country of origin. Once again, while these numbers are not large, they will surely increase once this bill is in place.

I would like to highlight the need for more flexible legislation to advance the humanitarian objective Canada has in mind with this bill on the international transfer of offenders. The need for more cooperation between countries as far as criminal justice is concerned is obvious, as is the need to protect the public by reintegrating offenders into society safely and gradually, and with proper monitoring.

Bill C-15 would meet all these needs by reflecting the traditional principles of international treaties, remedying detected shortcomings and ensuring consistency with other legislative measures. This bill would contribute, among other things, to expanding the system to a wider range of offenders and including more entities within the category of those with whom Canada could enter into transfer agreements.

For all these reasons, I urge hon. members to support Bill C-15 at third reading.

[Bill Graham, Liberal, for the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness]

moved that Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, be read the third time and passed.

Westbank First Nation Self-Government Act

[Jim Abbott, Canadian Alliance, Kootenay—Columbia, BC]

Mr. Speaker, I noted with some interest that the member said that she was asking for the support of the House. I think she would know that in the vote last evening indeed there was overwhelming support for this bill.

Therefore, could she help me understand if there is some kind of strategy that her government is presently undertaking with respect to this debate that perhaps she could enlighten us on? I do not know if it is correct or not, but I should mention that I believe we have some people even in this chamber who are watching us who are very interested in seeing this bill go ahead.

What we find perplexing is that in spite of the overwhelming support of the House for this bill, the fact that there is very limited opposition and indeed any of those issues have been fully vented in the course of this debate, that the government continues to filibuster its own bill. We are rather confused about that, particularly when I for one happen to agree with the member that we should be getting on with the business of the House.

Would it have anything to do with the fact that the Prime Minister and the government are not prepared to govern at this particular point? For example, let us look at the other bills that will immediately follow this bill should debate collapse. Bill C-10, the marijuana bill, is at third reading, which means that we could have a debate on that and get that through. Bill C-11, the Westbank bill, certainly is one that we could dispose of right now. Bill C-12, child protection, is a bill that is at third reading and could be disposed of fairly quickly. Bill C-15 concerns the transfer of offenders.

The House is trying to get these bills through. Indeed in ordinary procedure one would have the opposition trying to stop things, or the opposition trying to bring forward particular points of view, which is just fine. That is what the parliamentary process is about.

Considering that the Liberals' legislative cupboard is completely bare as a result of the Prime Minister having no idea of where he wants to take Canada, is that the reason, in the judgment of the member, she herself, unimaginably, would actually be part of the filibuster of this very important bill that the people of Westbank want to go ahead?

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, this afternoon, we shall continue debate on Bill C-30, an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004. If this is completed, we will commence second reading of Bill C-28, an act to amend the Canada National Parks Act.

Tomorrow, we will debate a motion to refer to committee before second reading Bill C-25, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings, and hopefully deal with the Senate amendments to Bill C-8, an act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain acts in consequence.

When the House returns on April 19, any of this business that is unfinished will be taken up, along with Bill C-11, an act to give effect to the Westbank First Nation Self-Government Agreement, Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, and Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act, Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, Bill C-28, an act to amend the Canada National Parks Act, Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, and the bill introduced yesterday, Bill C-31, an act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other acts.

I should like to wish my colleagues a happy and pleasant holiday period and to express my hope that they return refreshed and ready for a full legislative agenda for the spring.

Criminal Code

[Paul Devillers, Liberal, Simcoe North, ON]

Mr. Speaker, I am pleased to take part in the debate on this private member's bill, Bill C-393, an act to amend the Criminal Code in relation to the offence of break and enter.

The government could not be more serious about its role in ensuring the protection of the public and providing for a fair and effective criminal justice system. In recognition of this fundamental and essential responsibility, all aspects of the system are under constant and rigorous review by the government.

However, careful consideration of the bill before us reveals that although well intended, the proposal would not render the criminal justice system any more effective, nor would it serve to further the protection of the public.

The stated purpose of the bill is to amend the Criminal Code to provide for the imposition of a mandatory minimum period of imprisonment of two years upon a second or subsequent conviction for the offence of breaking and entering, where the offence was committed in relation to a dwelling house.

I am certain that all members of the House share the concerns of the hon. member for Calgary East, which motivated him to introduce Bill C-393, and sincerely empathize with the victims of the offence of breaking and entering. Even those who have not been personally affected by an offence of this nature are capable of imagining the feelings of loss, violation and fear that victims suffer as the result of what is technically categorized as a property offence. This is a crime that can severely affect a victim's basic sense of security.

The existing provisions of the Criminal Code already clearly reflect the government's view of the gravity of the crime of breaking and entering and its effect on victims. Indeed, the view is significantly reflected by the fact that subsection 348(1)(d) of the Criminal Code provides for a maximum penalty of life imprisonment. It can hardly be said that the penalty for this offence is insufficient when it is the most severe sentence available under criminal law.

The hon. member for Calgary East now proposes to impose a mandatory minimum period of imprisonment of two years for those convicted of a second or subsequent conviction for the offence of breaking and entering where the offence was committed in relation to a dwelling house.

However, mandatory minimum sentences have not been shown to have a positive impact on crime rates in the great majority of cases. In fact, mandatory minimums are completely contrary to the notion of effective corrections, which relies on individualized assessment of risk and needs and to the basic statutory principles of sentencing. The unintended side effect of mandatory minimum sentences includes increased federal incarceration rates, associated increases in costs, system dysfunction and reduced safety and increased disparity.

Limiting judicial discretion by providing for the imposition of the mandatory minimum sentence for an offence can be seen as inconsistent with section 718.1 of the Criminal Code. This important section provides that every “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. In other words, justice is best served when the judiciary has the necessary discretion to determine which sentence best fits the particular crime and offender.

As well, paragraph 718.2(d) of the code states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. A key element of effective sentencing and corrections is distinguishing between offenders who need to be separated from society and those who can be safely and better managed in the community. Reducing or removing discretion makes the criminal justice system more arbitrary and expends resources unnecessarily on incarceration when other measures can be less expensive and more effective.

In the United States, there is now a movement away from strict sentencing guidelines and mandatory minimum sentences. This movement includes Justice Kennedy of the U.S. Supreme Court and has even led several noted jurists to resign from the bench.

Justice Kennedy has stated:

I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust.

As the mandatory minimum penalty proposed by the bill before the House today is two years, this would result in virtually all individuals convicted of breaking and entering in relation to a dwelling house being incarcerated in federal penitentiaries as opposed to provincial facilities, where the majority is now incarcerated. This could result in offenders being placed in correctional facilities that are not suited to their needs and the risk they pose to society.

The proposal submitted by the hon. member for Calgary East is apparently motivated in part by his concern about criminal acts known as home invasions, a concern shared by all members of the House. Home invasion crimes have been the subject of much analysis and consultation by the Department of Justice. This matter was addressed as part of Bill C-15A, which received royal assent on June 4, 2002.

As a result of that legislation, the Criminal Code now provides that home invasion is an aggravating factor in sentencing for certain offences. A court sentencing a person for unlawful confinement, robbery, extortion or break and enter would have to consider it an aggravating circumstance that the offence was committed in an occupied dwelling where the offender was either aware that it was occupied or was reckless in this regard, and where he or she used violence or threats of violence against a person or property. In other words, the presence of any of these factors would justify the imposition of a harsher sentence.

Recent court judgments indicate that the judiciary is taking heed of this important amendment to the Criminal Code and is indeed imposing more serious sentences in home invasion cases. For example, soon after this amendment came into force, the British Columbia Court of Appeal upheld a ten year sentence in a home invasion case. The hon. member read a letter from someone saying that the most severe penalty they had heard of was three years, but here is one for ten years.

Honourable Mr. Justice Hall, speaking for the court, said it must be made clear that those who engage in planned home invasions will, upon conviction, face significant penalties. Justice Hall suggested that a sentence in the range of eight to twelve years should be generally considered appropriate in this class of case.

Similarly, in June 2003, the New Brunswick Provincial Court sentenced an offender to seven years' imprisonment in relation to a home invasion. The trial judge stated that a lengthy sentence was necessary in light of the severity of the offence.

The application of the fundamental principles of sentencing and the taking into account of mitigating and aggravating factors allow the courts to arrive at fit sentences such as these. This is the way sentence determination should be carried out, not through the mechanical process proposed in Bill C-393.

Although the hon. member is well intentioned, the proposal in the bill would make the justice system more arbitrary, fetter judicial discretion, and increase federal incarceration costs. Equally important, it would not improve the protection of society.

The government is fully committed to improving public protection. This will continue to be a key priority of the government. However, Bill C-393 falls short of this important objective and therefore, in our opinion, should not be supported.

Business of the House

[Jacques Saada, Liberal, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform]

Mr. Speaker, I will begin at the end, to be completely logical.

These are Senate matters. They do not concern the House in any concrete way. I would need to know what the Senate was going to decide before I could answer the question.

Also, regarding new bills, I am assuming that a bill that is good for the people is a bill that is good for the people, whether or not it existed previously. That is what we are working on. I hope to have the cooperation of our colleagues across the way to continue this process.

As to the plans for the coming week, as you know, this afternoon, we will continue debate on the opposition motion. Tomorrow, we will begin debate at third reading of Bill C-18, an act respecting equalization and authorizing the Minister of Finance to make certain payments related to health, including transfer payments of $2 billion to the provinces. Then, we will consider Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act, followed by Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, and finally Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

On Tuesday, March 9, at 10 a.m., the Secretary General of the United Nations will address both houses of Parliament in the House of Commons. As you know, all parties have agreed that the Wednesday schedule will apply that Tuesday, in order to leave the morning free in honour of the Secretary General.

Finally, Thursday, March 11 will also be an allotted day.

International Transfer of Offenders Act

[The Speaker]

The House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-15.

[Jacques Saada, Liberal, For the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness]

moved for leave to introduce Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences.

Mr. Speaker, pursuant to special order made earlier, I wish to inform you that this bill is in the same form as Bill C-33 at the time of prorogation of the previous session.

(Motions deemed adopted, bill read the first time and printed)