Bill C-5 (Historical)

Keeping Canadians Safe (International Transfer of Offenders) Act

An Act to amend the International Transfer of Offenders Act

This enactment amends the International Transfer of Offenders Act to provide that one of the purposes of that Act is to enhance public safety and to modify the list of factors that the Minister shall consider in deciding whether to consent to the transfer of a Canadian offender.

[Don Davies, NDP, Vancouver Kingsway, BC]

Good morning, everyone.

Mr. Chairman, as I think all members of Parliament know, and certainly all Canadians know, in June of this year Parliament acted swiftly to make necessary and I think well-considered changes to the pardon system in this country. Some relatively urgent circumstances caused Parliament to act.

In particular, two cases came to the public's mind. One was the imminent opening for Karla Homolka to apply for a pardon. The other situation that quite reasonably upset Canadians was the quiet pardoning of Graham James, who had been convicted of a number of sex offences against young men in his charge as a hockey coach.

At that time, back in June, the government tabled a comprehensive pardon bill that contained some positive measures. It also contained some measures that not only required further study, careful consideration, and deliberation, but were on the face of it absolutely the wrong way to go in terms of pardon policy in this country.

Back in June, Mr. Chairman, the New Democrats worked cooperatively and productively with the government to fix the imminent mischief in the pardon legislation. In particular, we dealt specifically with the Karla Homolka and Graham James situations. We did a number of things, as committee members will remember.

The first thing we did, which was very important, was we fixed the problem the pardon granting institution had. They had very little discretion to deny a pardon if the application was made. Prior to our changes in June, there were two waiting periods: a three-year period for summary convictions and a five-year period for convictions by indictment. But if a person waited that length of time after they served their full sentence--not only any period of incarceration, but also any period that may have been served on probation or on parole in the community--provided they had not reoffended in that time period and provided upon a cursory police check they had not triggered the attention of the police in any way, the granting institution really had no discretion but to grant the pardon.

One of the good things that I think was in the government's bill back in June was a provision that would give the parole board the discretion to grant a pardon or to refuse a pardon in any circumstance that would bring the administration of justice into disrepute. For the first time in Canadian history, we gave the tools to the board to deny a pardon in any circumstance in which that test was met.

It was my view then and it's my view now that this tool is sufficient to deny a pardon application by Karla Homolka, were she to make it. I think it also may be broad enough to empower the board to refuse to grant a pardon to Graham James, were he to make that application today. That's what Parliament did through all-party cooperation, including cooperation from the New Democrats. It was also the New Democrats' suggestion to add manslaughter to the list of offences that would require someone to wait 10 years to get a pardon.

We might also remember that back in June the other important measure Parliament took was to increase the time periods offenders had to wait to get a pardon in certain types of offences. We took sex offences against children and increased the time period to wait for a pardon from five years to ten years, and for summary conviction offences, from three years to five years.

At the same time, as I said, what the New Democrats insisted upon was that manslaughter be added to that list of offences for which a person would have to wait ten years. We did that specifically because that's the offence that Karla Homolka was convicted of.

I want to pause here and just talk for a moment about something else that's important. The former Minister of Public Safety, Stockwell Day, three or four years ago, reviewed the pardon system. The government did a review of the pardon system at the time Graham James was in the news. In fact, it was another sex offender, I believe, who was in the news at that time who spurred the government to do a review. The government did a review of the pardon system and made very minor changes to the system at that time, in 2007 if I'm not mistaken. Then we reviewed the pardon system in a very in-depth and profound way in June of this year.

I think that all-party cooperation in June produced a very important and progressive development in our pardon system. It gave the pardon system the opportunity to refuse to grant a pardon and gave them the discretion. It ended what Canadians have always perceived as being a rubber stamp, so that if you waited the three or five years, as it was then, and made your application, pretty much the pardon was automatic. We fixed that problem by putting the discretionary aspect in.

We also, I think, addressed something that Canadians said was a great concern, which was whether three or five years was a long enough period of time to wait for someone to apply for a pardon. In many cases, we thought it wasn't. In a lot of cases, and particularly sex offences, we should make an offender demonstrate a longer period of rehabilitated behaviour, that being ten years. That, I think, was also a positive step.

We've heard some testimony before this committee that if a person is going to reoffend, they do it within five days, five weeks, or five months. If someone has actually not reoffended for a period of five or ten years, then the evidence that we've heard so far--and I think we need to hear more evidence on this--is that it is highly unlikely that the person is going to reoffend.

So here we are today. The government came back this fall and put in some further proposals to change the pardon system, which I think are worthy of merit and further careful deliberation. I think they also, it's fair to say, have continued to pursue some of the flawed aspects of the bill that was presented in June, and that of course is the bill before us, Bill C-23B.

Now, whereas in June, Bill C-23A, as it's now known, made the necessary and important changes, what we have left in Bill C-23B primarily are some issues with regard to which we must, I believe, tread very carefully. When we haven't made any pardon changes in decades in this country, when this government looked at the pardon system in 2007 and thought that it didn't need any changes at all but a couple of minor administrative changes, and when Parliament made important changes in June, there is no need for urgency at this point today.

We have had only three days of hearings so far. For any of the Canadians watching, three days doesn't mean three full days but three meetings of two hours apiece, and in that two-hour period we have had 15 minutes carved out for dealing with committee business. So we have so far, it's fair to say, maybe about four and a half hours of discussion and hearing from a few witnesses on the issue of pardons in this country. From the two hearings at which we heard actual witnesses--and we heard from only a handful of witnesses--I think it's already quite clear that this bill has been exposed as having some serious deficiencies. Some would call them deep flaws. Each time a flaw is exposed, it causes us as parliamentarians and policy-makers to stop and think that we had better move carefully in this area.

So we're just getting started studying this bill, and it's obvious that there are many problems to be dealt with. Now, instead of hearing that evidence, the government wants to shut down testimony and rush through this bill, without having the necessary and careful deliberation. In my submission, that is not a responsible way to deal with a very serious issue.

I want to talk about one of those major flaws. This government has put in this bill—they did it in June and they're coming back with it now—what's called the “three strikes and you're out” rule. There's a provision in this bill that says anyone with more than three indictable offences would be ineligible for a pardon forever. I'm going to say that again. You get more than three indictable offences, and the Conservative government wants to pass pardon legislation that says you will forever be ineligible, barred from receiving a pardon.

The New Democrats arranged to hear from a few of the people who would be most affected by this, former offenders who would be denied pardons forever under this proposed legislation. These are people who have had more than three indictable offences. They came and testified right here at this table before this committee.

We also heard from organizations that work with ex-offenders. Here are some of the things we've heard so far.

We heard that proceeding with this provision hastily might actually endanger public safety. That's because we've heard some evidence—only a little bit so far—that shows that the pardon system and the pardon process is one tool in the rehabilitation process. It's a very important tool. We've heard from people who work with offenders and offenders themselves that having the prospect of getting a pardon, being able to work towards a pardon, helps them to get their lives back on track and not reoffend.

If there is one overreaching goal in the carceral system that we should be working towards and that all parties should be in agreement with, it's that we should always favour policies that help offenders not to reoffend, not only because it's good for the offenders and their families, but also because it's good for our communities. When that person goes back into the community, I want that person not to reoffend, not to endanger any other family, any other person, any other property. I want our people to be able to walk safely in our communities. That means that I, as a parliamentarian, will take it very seriously when I hear people tell me that a particular measure helps them not to reoffend. This piece of legislation, this particular provision of the bill—three strikes and you're out—would endanger that principle. It will take away one piece of hope, one piece of motivation, one piece of policy that, we have a taste of evidence to suggest, is instrumental and helps people in not reoffending. So we've heard the valuable role that pardons play in improving community safety.

In testimony from department officials, we also heard that 25% of the applications for pardons are from people who have more than three indictable offences. When we say “more than three indictable offences”, I'm sure Canadians react the same way I reacted when I heard that, which is that someone with more than three indictable offences should never get a pardon. That's what I thought, until we actually started talking to people who have experience with this process, and to former offenders themselves.

We put three live human beings in front of this committee, only three. Out of the tens of thousands of people who may be affected by this, we heard from three only. We put them here to be subjected to questioning from our side and from the government side. What did we hear? We heard from one person who was convicted of 24 indictable offences, which sounds horrible, until you hear his story. The story we heard is that these were convictions for selling steroids. We heard that this is a person whose wife passed away from cancer when he was a young married man. He had a mortgage, and he went into deep grief. He had financial problems so he started selling steroids. He told us that one transaction of selling steroids would result in multiple convictions: possession, trafficking, conspiracy, and fraud.

So someone who sounds like a person showing an intractable trend, an irremediable criminal, is actually a person who sold steroids over a period of six months and ended up with 24 indictable convictions as a result, because there are multiple convictions from single transactions.

Who is he now? I hope Canadians actually have seen this man. This man has gone for years without reoffending and is now an executive in the media industry, someone who has a mortgage and a new marriage and who occupies a position of responsibility and of probity. This was a person who presented an absolute success of what happens when prison works in the right way. This was not a thug and a hooligan or the type of criminal whom the government likes to portray—the stringy-haired criminogenic monster whom the government likes to hold up as the model for all of their criminal policy. This was a real person who had for a brief stretch of his life a problem, and he has put his life back together in admirable fashion.

The second person we heard from was a young aboriginal man. We all know that aboriginals are terribly disproportionately represented in our criminal justice system and in our prisons. This person told us that he's a recovering alcoholic who committed offences that were property offences. Yes, they were serious; I don't mean to minimize the offences. He committed robberies. He himself said that he knows the pain and the fear he caused when he went into stores and robbed those stores.

But he also is a person who has gone for years without reoffending. He is now a person who has a family and children. He talked about how he wants a pardon so that he can get a better job to support his family.

All three individuals talked about how getting a pardon is an incentive for them and a very important part of their rehabilitation plan to help turn their lives around.

Even, I dare say, some of the Conservatives' own witnesses, people who I think have a lot to tell Canadians about the criminal system—that's the victims groups.... We heard from Sharon Rosenfeldt and Sheldon Kennedy, two people who have suffered at the hands of criminals in a way that none of us can truly understand. Ms. Rosenfeldt lost a child to convicted killer Clifford Olson, and Sheldon Kennedy as a young teenager suffered under the sexual offences of his coach, someone under whose charge he was put, who should have been caring for him and should have been watching out for him, but who violated that trust. We have to take their testimony seriously.

We heard from both of those individuals that neither of them, I don't think, would be terribly in favour of removing the possibility of a pardon from someone forever just because they had more than three indictable offences.

We heard testimony from the minister that the figure of three or more than three indictable offences was an arbitrary one. We asked him if he had any data to support the number three. Is there some data to support that someone with more than three indictable offences is somehow less prone to qualify for pardon than someone with two? Or is the magic number four?

His answer was surprising and I think very disturbing. It was that it just seems right. He has no data—no empirical data, zero. This is someone who has the resources of the Department of Public Safety and probably of the Department of Justice, who has the full resources of government to provide studies and data and facts, who came to this committee and said he had nothing; three just seems right. One's not enough, he said; two's not probably right; but three seems right.

Mr. Chairman, that's Goldilocks policy. That's making policy the way children do: this one is too hard, this one is too soft, and this one is just right.

This policy would preclude tens of thousands of Canadians from ever getting a pardon for the rest of their lives. And it's based on a feeling, a hunch? That's not the way to make carceral policy in this country, and it's not, I think, what Canadians send us to Parliament to do. I think Canadians send each and every one of us to Parliament to carefully consider facts and evidence, to make the best effort we can make to come up with policy that is thoughtful and effective.

Again, the minister admitted no evidence, no data, no studies to show how adopting this law would help in any way to make our communities safer.

I also want to just talk for a second about this. This government has stood in the House time and again and said that the very best social safety tool that a person can have in this country is a job. You won't hear any one of the members of the government contradict that today, because they themselves have said it, because they believe it. And in some ways, Mr. Chairman, it's actually true. A job is a pivotal part of Canadians' abilities to care for themselves and care for their families.

We've heard absolutely unarguable testimony so far that getting a pardon is a critical part of having a person re-establish themselves in the employment world. We all know that when you apply for a job, there's a section on an employment form that asks: “Have you ever been convicted of a criminal offence for which a pardon has not been granted?” The ability to check off that box or not check it off is the difference between someone's getting a job and not getting a job, in many cases. If we want offenders to come back out of prison and to reintegrate themselves into society and start repaying their debt to society, and start acting as we expect our citizens to act and not be a burden on the taxpayer and not be a burden on the state, don't we want them to get a job? Of course, we want them to get a job if they've demonstrated that they deserve that kind of trust again.

The New Democrats are totally in favour of making a pardon process that is strict, that gives the pardon process the ability to deny that pardon, that makes the offender demonstrate that they have truly rehabilitated themselves through an extensive period of time of proving that; not through their words, but through a period of time during which they have shown that they have not reoffended—and make that period of time a good, substantial one; make it a long one, in some cases. But getting a job is critical, and this “three strikes and you're out” proposal would harm that process.

I also want to talk about lengthening the wait times. This bill proposes to double the ineligibility periods before applying for a pardon. It would go from five years to ten years in some cases, and three years to five years for summary convictions.

This is a concept that's worthy of further discussion, worth learning more about. What kinds of offences should go from five to ten years? As I've already said, New Democrats have already indicated our support for moving sex offences against children from five to ten years, and it may even be the case that there are some sex offences against children for which a person should never get a pardon. New Democrats are prepared to look at that.

But what this does with a broad brush...what this government says is that all indictable offences of every type should go from five to ten years. In a Criminal Code that is very thick and has every single type of indictable offence, from impaired driving to shoplifting to forging a testamentary instrument to passing a bad cheque, there are all sorts of offences that Canadians would recognize fall on a spectrum. They fall on a spectrum from the minimally serious to the moderately serious to the heinous.

There are some offences that I think we can all agree may qualify for the “never getting a pardon” process, but absolutely the vast majority of Canadians would agree, because they're reasonable people with common sense, that there are some indictable offences for which you shouldn't have to wait ten years to get a pardon. My colleague in the Liberal Party has brought up a very good example on several occasions of a young woman, perhaps a single mother, who gets into trouble—she's in her early 20s, she ends up writing some bad cheques, or she ends up shoplifting, maybe—because she is low-income and needs to have clothes for her children. She makes a mistake and she has one indictable offence.

This government would say that you have to wait 10 years after you serve your sentence, which in many cases would probably be 12, 13, or 14 years. Additionally, Mr. Chairman, we've also heard from businesses that exist to help people get pardons that the pardon process itself usually takes a year or two years.

So that one young woman who might have made a mistake at 20 years of age might, under this legislation, have to wait 15 years before she can get a pardon. That is not “considered legislation”, in my respectful submission.

In terms of basic drafting, this bill has been rushed so quickly that we can determine that there are drafting flaws in the bill. We have the so-called problem, which we have finally teased out of the minister and out of the support staff—I think they acknowledge that there is a drafting flaw in this bill—concerning the people who are convicted of sex offences against children and the way it works with respect to young offenders: a 16-year-old and a 14-year-old, or a 17-year-old and a 14-year-old. The close-in-age provision is incorrectly drafted in this bill. So we even have a flawed drafting issue here.

I also want to talk a bit about what I will say, with the greatest of respect, is a little bit of Conservative hypocrisy. We brought those three offenders as committee witnesses to show Canadians and this committee the types of people who would be personally affected by this legislation. Again I think it's fair to say that we heard compelling and touching stories of people with criminal pasts who had turned their lives around, who have completely turned their lives around. Conservatives to a person said to these people' faces, we're really proud of what you've done; we really admire the way you've turned your life around. I could be wrong, but I think one or two of them may even have suggested to these witnesses: “We don't mean you. You're not the ones we mean to prohibit from getting a pardon forever. We mean those other people.” But of course, those three are exactly the people who will not get a pardon as a result of this legislation.

Worse, after sitting here in this committee, each of the Conservatives talking to those ex-offenders and treating them with respect and praising them stood up in the House the very next day and made outrageous statements disparaging those very courageous individuals who came to tell their stories.

I won't mention the name, but I'll quote one of the members in the House, the day after these former offenders came and bravely testified—on television—about their criminal past and how it was turned around. It took more courage than I have seen many Canadian demonstrate in a long time. The Conservative member said:

...yesterday the public safety committee heard pleas from the convicted criminals to keep Canada's pardon system as is. Like so many times before, the Liberal public safety critic showed that he put the rights of criminals before the rights of victims.

That, of course, is not true. This is part of the rhetorical nonsense you hear from the government, which accuses anybody who might want to bring some study and some subtlety and some intelligence and some facts to the debate of crime...they accuse us of putting criminals before victims. What nonsense! But they did it, and worse was their two-faced way of telling these people to their faces how much they admired them and the next day going into the House of Commons, where they have parliamentary immunity, and portraying them to the Canadian public as if we had a bunch of common criminals who wanted the pardon system liberalized. It was about the biggest piece of hypocrisy I've seen in a long time.

I want to talk again about evidence. So far the Conservatives have not tabled one piece of evidence, one statistic, one study, or one piece of data before this committee that shows why these changes are needed or how the changes would improve community safety.

I want to talk again about the Conservative approach to making legislative changes based on politics and based on fear and not based on facing evidence.

When they put Bill C-5, the international transfer of offenders bill before this committee, it was unanimously panned by the witnesses. The Conservatives couldn't find one witness, not one, who supported the bill.

They brought Bill C-17, and we heard this expert panel yesterday express grave concerns about the impact on free speech and basic--

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chair.

I want to thank you all for being here today to give us insight into this bill.

What I understand, after listening to everyone, especially you, Mr. Conroy, is that the current legislation works. That is what I used to think as well, before this government was elected, of course. Since it has been in power, I have found that there are fewer and fewer transfers. In fact, my office receives requests from prisoners. We call the department, and we get no response, which is another matter.

Instead of calling this bill An Act to amend the International Transfer of Offenders Act, I would have called it the Omar Khadr Act. It is my sense that this bill was drafted in such a way as to make the process so arbitrary that the government would have the discretion to deny applications from people like Omar Khadr. Am I wrong?

Do you think the government is trying to do away with anything involving rehabilitation and make sure that, from the moment someone is arrested for a crime in another country, they have to stay there?

[Mark Holland, Liberal, Ajax—Pickering, ON]

I guess my point is that if you have already the government rejecting so many of these transfer agreements, and if you see Bill C-5 pass, given the very broad definition by which the minister could then reject it, could the minister not in any and every single case find some excuse, in that very broad context, to reject an application?

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

I'm Gaylene Schellenberg, a lawyer with the legislation and law reform department of the Canadian Bar Association.

Thank you for the invitation to present the CBA's views on Bill C-5 today. The CBA is a national association representing over 37,000 lawyers, law students, notaries, and academics.

An important aspect of our mandate is seeking improvement in the law and the administration of justice. It's from that perspective that we appear before you today.

With me is Paul Calarco, member of the CBA's national criminal justice section. The CBA's justice section represents both crown and defence lawyers from every part of the country, and Mr. Calarco practises criminal law in Toronto.

I'll turn it over to him to introduce the substance of our submission and respond to your questions.

Thank you.

[Charis Lynn Williams, As an Individual]

Thank you.

Thanks for having me here. My name is Charis Lynn Williams. I'm the older sister of Brent James Curtis, U.S. federal inmate number 79979004, who is currently serving a 57-month sentence in Pecos, Texas, for conspiracy to traffic cocaine.

I'm opposed to Bill C-5 because of my experience over the last three years. I've become very well acquainted with the International Transfer of Offenders Act, the legal system in the United States, and various American prisons as I've advocated for my brother's transfer home to Canada.

I feel very strongly about the way the International Transfer of Offenders Act has been disrespected and ignored by our current government. I'm appalled that Canadian citizens are being denied access to an act that has been used successfully over the last four decades. This treaty between nations has had a high success rate since its inception, and nothing about that has changed, except that currently Canadian offenders incarcerated abroad are being denied the right to serve their time near their families.

The truth is, when our public safety minister denies transfers, he in fact endangers public safety, tears apart families, denies offenders access to rehabilitation, and turns first-time non-violent offenders into inmates doing hard time. I may never know why they are doing this, but I know it's wrong for all Canadians, and it needs to stop today.

My brother Brent is a Canadian citizen, a young man who made some bad decisions. These decisions led to his arrest by the FBI in October 2007. No amount of explaining on his behalf or mine will be able to justify the crime he committed. Yes, he should be held responsible for his actions, but he's still entitled to his rights as a Canadian citizen.

When Brent pled guilty to the charge of conspiracy to traffic, he stood to face 17 years in jail. After the U.S. federal judge reviewed the FBI's evidence and Brent's character references, his employment and education history, and heard him speak in court, she sentenced him to 57 months in a federal prison, roughly five years. The judge commented during sentencing that she saw Brent as a good person from a good family--not a career criminal, but someone who made a stupid decision to play a minor role in a major crime for quick financial gain.

Because in the U.S.A. the sentences are issued based on quantities, my brother's sentence, while still severe, was nothing short of a miracle for us. Our U.S. lawyer knew of the International Transfer of Offenders Act and assured us that Brent would be close to us while serving his time. We would be able to support him as he coped with incarceration and rehabilitation and we would help him make plans for his future.

Brent's transfer home to Canada was approved by the U.S.A. in December of 2008. It was denied in May 2009 by our then minister of public safety, Peter Van Loan. In a letter sent to Brent by Mr. Van Loan, the minister had determined that if transferred home Brent would commit an act of organized crime, despite the fact that he'd been convicted of only a minor role. It was determined in court that Brent had not been involved in organized crime, but had been hired as a delivery man. Mr. Van Loan ignored all the facts of the case, including recommendations from the U.S., Corrections Canada, and the prosecutor and the sentencing judge in Brent's case.

Brent has currently served over two-thirds of his sentence thousands of miles from home and family. We have visited him at every opportunity we could, at considerable expense. It is common knowledge amongst criminologists, criminal psychologists, and correctional services that optimal outcomes during and after incarceration are dependent on the inmate receiving support from family. By denying transfers, the minister is denying all Canadians the right to optimal outcomes for those apprehended abroad.

Since his arrest, my brother has been offered no rehabilitation, no counselling, and no education. Foreign aliens incarcerated in the U.S. are offered no programs whatsoever, and therefore no access to optimal outcomes.

When Brent was denied a transfer, I submitted an access to information request to all departments and offices of the government. I asked for and received any and all documentation, electronic and otherwise, bearing my brother's name. I did this in an effort to find out why the minister had denied him a transfer home.

In report after report, my brother was considered a prime candidate and recommended for a transfer. Corrections Canada, International Transfers, the prosecutor in his case, the probation officer who did his community assessment, and his sentencing judge all agreed that optimal outcomes were available to Brent if he were transferred home.

Again I stress, the U.S. justice department approved his transfer home in December 2008, nearly two years ago, but his home country, Canada, said no—rather, Mr. Van Loan said no.

It is common knowledge among Canadians incarcerated abroad that as more transfers get denied, more offenders are losing touch with their families and families are being destroyed.

Brent has been apart from his family now for three years. Brent's common-law wife decided to move on when his transfer was denied. At least when incarcerated in Canada, visitation is possible on a regular basis and phone calls home don't cost $1.99 per minute. Families are going broke trying to stay in touch. When transfers are denied, they make the tough decision to do what they have to do until the sentence is served out abroad. When we leave offenders abroad, there is no telling in what condition—physical, mental, or emotional—they will return to Canada.

It is important that Bill C-5 does not pass. More importantly, it is important that this government goes back to honouring a treaty that has served our country well for decades. Amending the act to read “any other factor that the Minister considers relevant” is much too broad and open to the minister's opinion, and not the facts. This endangers public safety in the long-run.

It is a well-known fact that Mr. Harper's Conservative government wants to be seen as being tough on crime. It's quite transparent to even a casual observer that the tough-talking Mr. Van Loan has chosen a path of least resistance. Prisoners across the border are easy marks and the minister can abuse their rights as citizens in the quest to appear tough to the constituents at home.

Should Brent serve his full sentence in the U.S.A., he will come home to Canada with no criminal record whatsoever. Over the last three years, my brother has served time with child molesters, rapists, and murderers. Canada doesn't need to worry about my brother coming home; he has learned his lesson. But we do need to worry about who will be dropped off at the border. After transfers have been denied undetected, there will be no record of their crime in Canada and they will not be registered with a Corrections Canada ID. Again, this is not public safety; this is public endangerment.

Committing a crime abroad does not revoke citizenship. These offenders come home at the end of their sentences regardless of whether their transfers are approved. As Canadians, we need to know who they are, give them an opportunity to rehabilitate, and, most importantly, we need them near their families to help them eventually reintegrate into society.

The attitude that “if you do the crime there, you can do the time there” is not going to help anyone. Forgetting about them and leaving them in dangerous situations when there is a perfectly good treaty between nations in place is inhumane, lacks forethought, and seems to only make sense as a campaign ploy to look tough on crime.

In the case of my brother, the minister ignored American officials, his own officials, made his own decision, and quashed the transfer. In essence, he arrogantly acted as though this bill had already been passed.

The only thing that brings my family comfort is that perhaps, in advocating for prisoner transfers, we can save another family from this hardship. When the people who commit crimes are apprehended and face incarceration, they need support to turn their lives around. Keeping them from their support systems puts us all in danger of them reoffending.

Once again, it is very important that Bill C-5 does not pass and, more importantly, that we as a nation take responsibility for our citizens incarcerated abroad. This will achieve optimal outcomes and ensure the safety of all Canadians.

I hope I have offered you some insight into our experience. I am open to answering any questions that may be of service to the committee. I thank you for your time.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

Fellow committee members, we welcome you back after a week in the constituencies.

Welcome to the 39th meeting of the Standing Committee on Public Safety and National Security. Today is Monday, November 15, 2010. Today we're continuing our study of Bill C-5, An Act to amend the International Transfer of Offenders Act.

Appearing as witnesses today we have, as individuals, Charis Lynn Williams, as well as John Conroy, a lawyer.

From the Canadian Bar Association, we have Gaylene Schellenberg, who works on legislation and law reform, and Paul Calarco, a member of the national criminal justice section.

From the Canadian Civil Liberties Association, we have--welcome back--Nathalie Des Rosiers, general counsel, and Lorne Waldman, lawyer.

I understand each of you has an opening statement. I've had an opportunity to meet most of you. We will just begin, and then I would remind you that we'll go into the first rounds of questioning, which are seven-minute rounds.

Because we're televised today, I would also ask those in the gallery to please turn off their cellphones and BlackBerrys. It just makes things a lot easier.

I see Mr. Davies with his hand in the air.

Mr. Davies.

[Maria Mourani, Bloc, Ahuntsic, QC]

I'd like us to have a copy of this document, Mr. Chair.

My other question concerns the wording of the act. Correct me if I'm wrong, but as it is currently worded, the act imposes an obligation on the minister to respect certain criteria. If Bill C-5 is adopted, the wording would change from “shall consider“ to “may consider“. Is that correct?

[Mary Campbell, Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness]

Thank you very much, Mr. Chair.

I am completely delighted to be here. I always am.

I did provide some written remarks, and I will go through those, but obviously we want to allow sufficient time for questions about this bill.

I will just clarify the roles. As you have indicated, Mr. Chair, I am with the Department of Public Safety, so my responsibility is with relation to the act itself and the negotiation of treaties. The treaty negotiation is done in concert with the Department of Foreign Affairs and International Trade.

The actual processing of transfer applications and the transfer of the people is done by the Correctional Service of Canada, but clearly we work very closely together. CSC officials were not able to be here today, but my colleague Michel Laprade, who is in legal services with the Correctional Service of Canada, is a long-time expert on international transfer matters. It may be that because of a lack of an operational person we'll have to get back to you with some answers, but I'll certainly do my best.

The current act, the ITOA, as we call it, was enacted in 2004. It replaced the original Transfer of Offenders Act, which was created in 1978. Canada was actually a world leader in the creation of international transfer agreements.

Since 1978, a number of multilateral and bilateral treaties and arrangements have been developed. We have multilateral treaties, including, for example, the Council of Europe Convention on the Transfer of Sentenced Persons, to which Canada is a party; the Commonwealth Scheme for the Transfer of Convicted Offenders; and the Inter-American Convention on Serving Criminal Sentences Abroad. These allow transfers with a wide variety of countries, such as Japan, Costa Rica, and the U.K.

In addition, we have bilateral treaties: treaties that Canada has negotiated directly with specific other countries, countries such as Mexico, Venezuela, and the United States. In total, we have transfer mechanisms with 82 other countries.

The legislative purpose of the ITOA, which is under the authority of the Minister of Public Safety, is as follows: “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”.

This domestic statement of purpose mirrors what is in the international conventions and treaties, so we don't operate in isolation in devising our scheme, but rather in concert with other countries around the world.

For example, Canadian requirements for transfer are what you would see in many of these other treaties. These are things, for example, like the requirement that all three parties consent to a transfer, which is to say the offender, the sentencing country, and the receiving country. All three must consent. That's a fundamental principle.

Another fundamental principle is dual criminality, which is to say that if a Canadian is incarcerated abroad and wants to come back to Canada, the offence has to be one that is also an offence in Canada. It doesn't have to be identical, but if it's an offence in a foreign country and it's not behaviour that we recognize as a crime, the person is not eligible to come back to Canada.

I would say that generally the international program works very well. Certainly there have been some countries—and this is particularly the case in Europe--where the number of foreign offenders in prisons has really skyrocketed. In some jurisdictions, I'm told, half the inmate population is comprised of foreign offenders. So for a number of countries that are stretched by limited resources, having a mechanism like international transfers allows them to more effectively manage their domestic population, if you like, and return foreign offenders to their home countries.

Canada is certainly particularly active in the Council of Europe Convention on the Transfer of Sentenced Persons. I've had the privilege myself of attending council meetings in Strasbourg a number of times to discuss mutual problems and resolve issues. The dialogue is ongoing. Events are always changing.

As well, Foreign Affairs personnel have been very involved in those discussions and in transfer matters. I really must say that they've been exceptional partners. The consular officers who visit Canadians abroad have really done an outstanding job.

I have a few numbers, and we certainly have more statistics if the committee is interested. Since the program started in 1978, there have been 1,557 Canadian offenders transferred back to Canada, while Canada has returned 127 foreign nationals to their home countries. About 85% of the 127 transferred out have been to America. The United States is our biggest partner. I think the reasons are obvious, given the border between us.

There are about 2,000 Canadians incarcerated abroad at any given time. In terms of the number of applications per year, the Correctional Service receives about 264 new applications every year. They have a carry-forward of about 308 applications from previous years, resulting in a total caseload of about 572 files per year.

Now, there are Canadians incarcerated abroad who obviously choose not to return to Canada under a transfer, so of those 2,000 Canadians abroad, clearly a large number are choosing to not request a transfer. If the offender does not come back under a transfer, of course, usually they will be deported at some point during the sentence or at the end of the sentence. They will likely come back to Canada if that's their only country of citizenship, or they may continue on to any country where they are admissible.

The problem faced by many Canadians abroad, of course, is that local conditions may be very different from what they are used to in Canada. There are language barriers. There are cultural issues, dietary issues, and medical issues, and of course, there is distance from friends and family in Canada.

I also want to highlight that there are public safety reasons for transfers to their home country. If people come back to Canada under sentence, they will come back under the control and supervision of the Correctional Service of Canada and the Parole Board of Canada. As a result, they will be able to have access to programs here. If a Canadian remains abroad, often he or she doesn't have any access to programs in foreign prisons. As well, a foreign conviction will be recorded in the RCMP's database of convictions. If the person comes back free and clear, that conviction is not registered in the RCMP database.

As I said, the legislation was amended in 2004, and the government is now proceeding with Bill C-5, with some further amendments.

Under the current legislation, the minister has to take several factors into account when considering a request for a transfer to Canada. I won't read out all of these. They are in the current act. They include whether the offender's return to Canada would constitute a threat to the security of Canada and whether the offender still has family or social ties in Canada. There are four factors listed.

These are all quite important things to consider, but the ITOA as it is now does not make any specific mention of protecting the safety and security of Canadians, nor does it specifically mention victims, family members, or children. The government views these as serious omissions, which is why it is proposing a number of amendments to the decision-making factors as well as to the purpose of the act.

In addition, we've had a number of cases that have been reviewed in Federal Court, and obviously they have been instructive as well. It's viewed as important that the factors be elaborated even more clearly in the legislation. The factors will provide the minister with more flexibility and a more comprehensive decision-making framework within which to consider applications. They'll ensure that Canadians who request transfers are treated fairly and equitably while not eluding accountability for the offences they have committed abroad.

I'll go through the proposed amendments. The first one is to the purpose of the act. The amendment would specifically reference public safety as a purpose.

The second amendment is enshrining in law a number of additional factors that the minister could consider in deciding whether to transfer a Canadian back. Again, it's a list that is in the bill, so I won't go through it exhaustively, but it includes issues such as whether the offender would endanger public safety in Canada; whether the offender is likely to engage in criminal activity if returned to Canada; whether the offender has participated in programs abroad; whether the offender has accepted responsibility for his or her actions abroad; the extent of the offender's co-operation with law enforcement authorities in the foreign jurisdiction; and last, any other factor the minister considers relevant.

In terms of how this would work in practice, for example, if an offender were considered to pose a threat to a family member, the minister could take that into account in weighing all of the factors before making a decision. Similarly, if the offender has cooperated with law enforcement, if they are in poor health, if they have acknowledged responsibility through, for example, a guilty plea or other cooperation with authorities, the minister could take those factors into account. As it stands now, the minister has a residual discretion that has been recognized by the courts, as long as it is exercised in a manner consistent with the purpose of the act, so it's not completely wide open. The intention of these amendments is to more clearly articulate in statute what those additional considerations could be.

That's a quick summary of what is in the bill. As I said, I'd be happy to answer any questions, as would my colleague, Mr. Laprade.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much for that.

Now, seeing no other hands in the air--and not encouraging any to go there--I will have us continue.

Today we are going to proceed with our study of Bill C-5, An Act to amend the International Transfer of Offenders Act. As our witnesses today, we have, from the Department of Public Safety and Emergency Preparedness, Ms. Mary Campbell, director general of the corrections and criminal justice directorate.

Welcome. We have had the privilege of having you at our committee before.

We also have with us Michel Laprade, senior counsel, legal services.

Welcome.

We look forward to your comments.

[The Chair, Conservative, Kevin Sorenson]

Any motion today for a subpoena is not going to work because no motion has been submitted with 48 hours' notice. We aren't going to entertain that motion. That's not coming out of what we're discussing today on Bill C-5, plain and simple.

Second, it is common courtesy that in a case like this where they deny.... It has happened before that witnesses have said, “No, I can't make it”. We've said, “Okay, that witness is unavailable”. Then other witnesses have come forward. I think that's why the clerk notified you that they would not come: because they were your witness.

If it's the wish of the committee that he must appear here, then he needs to have that explained first. That's just common courtesy. I would call him and explain that the committee is still very much intent on his appearing before our committee, and that if he chooses not to, we may go the route of a subpoena. If we subpoenaed everybody who said they were not coming to committee, we would be giving subpoenas to hundreds of people, because many people do not want to appear. We get 30 or 40 witnesses on some issues. Every year in Parliament, before all the committees, there are hundreds who choose not to come. On occasion, one may be subpoenaed.

Mr. Holland.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chairman, the day that we were to study the Fadden issue was not merely limited to two witnesses. It was a topic as well. We have to find another day. This day can't just disappear while we replace it with Bill C-5. That calendar schedule was agreed to by this committee. We all made compromises--

[The Chair, Conservative, Kevin Sorenson]

Good afternoon. Welcome.

This is meeting number 34 of the Standing Committee on Public Safety and National Security, on Wednesday, October 20, 2010.

Just before we go to Ms. Mourani, I want to say that today we are here to begin our study on Bill C-5, An Act to amend the International Transfer of Offenders Act. I'll introduce our witnesses in a moment.

As far as a little bit of business for our committee is concerned, it's been passed on to me from the clerk that we would like to establish a date by which all witnesses could appear on Bill C-5. By the end of today's meeting, we will have heard from the department, so on November 17 we would begin again on Bill C-5.

In the opinion of the chair, the clerk, and a few others, it's very important that you submit your lists of witnesses on Bill C-5 if you have any. Hopefully by November 17 we would be able to hear some witnesses in the first hour, and perhaps even consider clause-by-clause, depending on how many witnesses we have. If we feel we are going to need some more time, that's one thing, but please get your witnesses in.

Now, Ms. Mourani, do you have a point of order or what?

The House resumed from September 23 consideration of the motion that Bill C-5, An Act to amend the International Transfer of Offenders Act, be read the second time and referred to a committee.

Keeping Canadians Safe (International Transfer of Offenders) Act

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I was hoping to ask a question of the previous speaker, who is unavailable, but he gave an excellent speech in which he had particularly targeted an amendment in the bill, subclause 3(1), which replaces existing subsection 10(1), all the way down to paragraph 10(1)(l). This has to do with the circumstances that a minister can take into account.

Paragraph 10(1)(l) would say,

any other factor that the Minister considers relevant.

When one makes a list of factors that may be taken into account, something must be left off. Otherwise it would say, “any factor that the Minister believes is relevant”. The fact that there is a list, which was added, seems to suggest that this list is not comprehensive, and I am not sure why. What it does, and the member mentioned it in his speech, is raise the question of arbitrariness in the law.

I understand that it is in fact part of our Constitution that laws cannot have elements of arbitrariness. It therefore raises the question about whether the Attorney General of Canada has properly opined on the constitutionality of the bill. I do not know, but it is probably worth asking because this is a very serious bill. It is an important bill. It is a bill that addresses the transfer of prisoners from one jurisdiction back to Canada. The whole premise underlying the bill is for the purposes and enhancement of rehabilitation of citizens of Canada who may have run afoul of the laws in another jurisdiction.

The other thing that came to my mind when the member was speaking is the fact that today Bill C-5 was called for the first time for debate at second reading. Also today there is an article in a number of newspapers. The one I picked up is in the Ottawa Citizen and it is titled, “Canadian jailed in U.S. can return, court rules”. This is in fact precisely the type of case that is impacted by Bill C-5.

This relates to a person named Brent James Curtis. He was involved in a routine transfer from a U.S. prison to a Canadian jail, and the Federal Court of Appeal said that the minister erred and that the Conservative administration was to reconsider the decision within 45 days. This was a decision made by the court yesterday on this matter, yet the government proceeded with this bill today. The timing is very unusual and it would suggest that, since the Federal Court of Appeal ruled that the government erred on that case, for this bill to come forward is quite astounding.

The question of whether there is a problem on the constitutional side is also important. As well, there is a question about whether there is continued support for the long-standing tradition that countries have had of being able to transfer prisoners. In this particular case, Mr. Curtis wanted to serve out the balance of his sentence in Canada to be close to his family. This is part and parcel of the whole regime of transfer and rehabilitation.

There was another thing that I saw in the article in the Ottawa Citizen today. According to the article, the officials of the then Minister of Public Safety told the minister that the facts were clear. The assumption had been initially made that this person was somehow implicated in other ways. They advised the minister directly that his facts were wrong. The minister ignored his own officials, made his own decision, and quashed the transfer of this person.

It raises again the question of what is the agenda of the Minister of Public Safety. Why is it that officials of his department are ignored? With the decision of a court, the Federal Court of Appeal, that the minister has 45 days to reconsider the position, why is it that there is now a bill before us that will say that, notwithstanding anything else, other things that will be taken into consideration now will be anything the minister thinks is appropriate? Talk about a one-man show.

I am very sure that there are going to be others who want to pursue what happened in this particular case. This decision was actually highlighted in the media a year ago. The Canadian public safety minister at the time wrongly considered this Canadian citizen, who is now 29 years old, a major money man in a drug conspiracy. That was simply not the fact. That was found by the Federal Court of Appeal ruling. When the minister refused the prison transfer for this person, the minister contradicted his own staff findings in terms of whether Mr. Curtis was linked somehow to organized crime. But still the minister denied the prison transfer on the basis that he might commit future offences in organized crime or terrorism, when it was already made clear by his own staff and officials that there was no connection to organized crime or terrorism.

It was denied even though the U.S. government approved the transfer. The U.S. government approved the transfer, but the Canadian minister did not approve it. So one has to wonder what is going on here. There are so many questions that should be asked of the minister and I am sure it will come out when this goes to committee, but I suspect that with regard to the bill and with regard to the arbitrariness, this particular provision is not going to get very much support at committee.

The officials concluded that Mr. Brent Curtis would not commit a crime if he were transferred back to Canada, nor did Curtis have any links to terrorism or organized crime and was only a minor participant in the matter that was before the court. He was found guilty and sentenced to jail. The government position left Mr. Curtis in U.S. custody where he could not even understand the hourly instructions over the prison public announcement system, which was in Spanish for most of its Mexican inmates. When I saw this case and was referred to the story, it certainly did raise the spectre of some problems.

So we are at second reading. Should this matter be passed at second reading and go forward to the committee, I want to flag for the committee that this particular case of Mr. Brent Curtis should be looked at and that this bill should be considered in the context of what happened with regard to that case, because I think it has a direct bearing and a direct consideration with regard to paragraph 10(1)(l) that says what is relevant is any other factor that the minister considers relevant. It is very unusual. The arbitrariness of that on its face, on a prima facie basis, would raise the question of whether the Attorney General in fact had opined correctly on whether this bill itself with that proviso in there, with that amendment in there, is constitutional. So there are constitutional questions here as well that would have to be looked at.

This is not my area of expertise, but I hope that other hon. members will take an opportunity to look at the records, to look at the court decision, to look at the actions or inactions of the minister, to consider the actions or inactions of the Attorney General vis-à-vis constitutionality and try to understand and try to determine from the minister and officials why his officials were overridden, not listened to, and why the minister proceeded with the bill only one day after the Federal Court of Appeal told them that the minister was wrong.

This just raises more questions than answers, and at this point, I hope that hon. members will take into consideration some of the disturbing facts surrounding Bill C-5.

The House resumed consideration of the motion that Bill C-5, An Act to amend the International Transfer of Offenders Act, be read the second time and referred to a committee.