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.

Business of the House

[John Baird, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I would like to take this opportunity to officially congratulate the House leader of the official opposition on his first Thursday question and of course on his appointment as House leader. As I have already said, we want to make this Parliament work for Canadians and co-operate with all the opposition parties.

Let me also tell him, and particularly his leader, how very disappointed I am that I will not have the chance to work shoulder to shoulder with the great, wise helmsman from Wascana.

Let me take this opportunity to once again, in English, officially congratulate the House leader of the official opposition on his first Thursday question. As I have said in the past, we all want to work hard, we all want to work collaboratively to make this House work, and not just with him.

We also want to do so with our friends in the Bloc Québécois and the New Democratic Party.

As government House leader, one of my very first acts on the day of the cabinet shuffle was to reach out to my opposition counterparts. Since then, I have had the opportunity to sit down with each of them and to hear their views about making Parliament work. I look forward to working with them over the coming days, weeks, months and years to do just that.

As for the House schedule, we will continue debate today on Bill C-5 (International Transfer of Offenders), followed by Bill C-31, Eliminating Entitlements for Prisoners, and Bill C-22, Protecting Children from Online Sexual Exploitation.

On Monday, we will call Bill C-8, Canada-Jordan Free Trade Act, and Bill C-28, Fighting Spam, an important piece of legislation presented by the Minister of Industry.

Tuesday, September 28, will be an allotted day, and on Wednesday and Thursday, the order of business will be Bill C-8, if not already disposed of on Monday, Bill C-46, Canada-Panama Free Trade Act, and Bill C-28, Fighting Spam.

International Transfer of Offenders Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I appreciate the question.

It is not just my opinion that we are opening this up to too much discretion on the part of the minister, or that the change of wording from “shall” to “may” is ill-advised. There are certain things the minister is required to take into consideration and changing that to a list of things that the minister “may” take into consideration is a dramatic and fateful change to this legislation.

It is not just my opinion. Even with the current legislation, there is a problem. We saw this with the court decision earlier this week, when Justice John O'Keefe of the Federal Court of Canada ruled in two cases where transfers had been denied. He did not question the idea that the minister should have some prerogative, but he did write that courts cannot condone completely unstructured discretion, and that in circumstances where a decision has such a dramatic effect on someone, the law requires a complete explanation, however short the decision.

In two cases before the court, it found that there was a serious problem with ministerial discretion as it currently exists in the law. The problem is even greater in Bill C-5. We have heard that Bill C-5 goes much farther down the road of ministerial discretion than is currently allowed.

I think there are serious problems. It is not just my opinion. It seems to be something that is coming out of the Federal Court of Canada in a decision earlier this week, on Tuesday, in which Justice O'Keefe seems to have been addressing this very issue.

There are serious problems with the whole question of ministerial discretion. The change in this legislation, with respect to the minister's power of discretion, from a list of prescribed criteria to a much broader, open-ended list is a serious matter. I suspect that, given what the court has already said, the present range of ministerial discretion will have difficulty standing up to legal challenges down the road.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am very pleased to have the opportunity to participate in the debate this afternoon on Bill C-5, An Act to amend the International Transfer of Offenders Act.

I am very strongly opposed to this piece of legislation. I am opposed to it because I believe that it mucks around inappropriately with an incredibly successful program that is already in place. I see no need or no appropriateness to the government introducing these changes to a program that has served us so very well to this point.

I also very strong believe, as we have heard in debate today and recently from my colleague from Windsor—Tecumseh and my colleague from Vancouver Kingsway, that these changes proposed by the government will make our communities less safe, not more safe. It has completely the opposite effect than the government is saying it will. There are very serious problems with this and I cannot be clearer in my opposition to this legislation.

What is Bill C-5 about? It is identical to a piece of legislation that was introduced earlier in this government's mandate, Bill C-59. That bill died due to prorogation before there was any debate in the House. Bill C-5 contains amendments to the International Transfer of Offenders Act. We have had legislation around the international transfer of offenders since 1978. The current legislation, the International Transfer of Offenders Act, was enacted in 2004.

The act provides a mechanism for foreign nationals imprisoned in Canada to apply for transfer to their home countries to serve out the remainder of their sentence. It also provides the mechanism for Canadian citizens imprisoned abroad to apply for a transfer back to Canada to serve out the remainder of their sentence.

This regime about the international transfer of offenders has been in force for over 30 years, and both Liberal and Conservative governments have overseen the administration of this legislation. They have also, both Conservative and Liberal governments, overseen the transfer of Canadian citizens back to Canada.

How many people have used this mechanism? Between 1978 and 2007, 124 foreign nationals were transferred out of Canadian jails and 1,351 Canadian citizens were transferred back to Canada.

In the current act, the purpose of the act is defined in section 3, and that section says:

The purpose of this Act is to enhance public safety and 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.

Correctional Service Canada, which obviously has a key interest in the legislation, has a website dedicated to this Transfer of Offenders Act, and it gives more detailed background about the principles underlying how this actually works. I will just quote from that website. It says:

Canadians incarcerated in foreign countries often find themselves facing serious problems coping with local conditions. The most common problems involve culture shock, isolation, language barriers, poor diets, inadequate medical care, disease and inability to contact friends and family...In some prison systems, the offender's family is expected to provide food and financial assistance.

It goes on to say:

The purpose of these agreements is humanitarian to enable offenders to serve their sentence in their country of citizenship, to alleviate undue hardships borne by offenders and their families and facilitate their eventual reintegration into society...Once transferred, the offender's sentence is administered in accordance with the laws of the receiving country.

Just as an aside, this agreement is very important to people in my own constituency. Recently I was visited by a constituent whose son is incarcerated in Japan. He is going through many of those issues that were mentioned on the Correctional Service Canada website, dealing with culture shock, isolation, language barriers in the Japanese correctional system, which is perhaps one of the better ones that a Canadian who is incarcerated overseas might have to deal with. The constituent was explaining to me the difficulties that she and her husband are having in terms of ensuring the safety, the well-being of their son, given the very serious trouble he got into, and everybody acknowledges that he did make some very serious errors.

They are also concerned about some of the changes in consular services that are available to people overseas from Canadian officials when they find themselves in these kinds of very difficult situations. There are very real purposes that affect Canadian families, given the kind of trouble that people have gotten into overseas.

The act explains the process for a transfer application. It says that for a transfer of a Canadian citizen to take place, the offender must consent to the transfer, the country where the offender is currently imprisoned must consent, and the Canadian government must consent. Therefore, the prisoner, the overseas government, and the Canadian government all have to agree to this process.

Currently, the minister of public safety is designated to review all applications for offender transfer and the act specifies that the minister has to consider certain things when evaluating an offender's application for transfer. There are four things that the minister is compelled to consider currently under the legislation.

The minister has to consider whether the offender's return to Canada would constitute a threat to the security of Canada. The minister has to consider whether the offender left or remained outside Canada with the intention of abandoning Canada as his or her place of permanent residence. The minister also needs to consider whether the offender has any social or family ties in Canada, and finally, whether the foreign entity or its prison system represents a serious threat to the offender's security or human rights. Those are all the current requirements that we see in the existing International Transfer of Offenders Act.

The bill before us, Bill C-5, proposes to change those requirements, and it changes the legislation in a number of ways.

First, it seeks to add the words “to enhance public safety” to the purpose of the act. Where the current act currently states that the minister “shall” consider certain factors, and actually requires the minister to consider certain factors, the new bill, Bill C-5, would change this to read that the minister “may” consider the following factors, thereby dramatically increasing ministerial discretion.

It takes away the requirement to do certain things and in a sense proposes that there are certain suggestions the minister must take into consideration. It is a dramatic change in the legislation.

The new proposal, Bill C-5, seeks to add the phrase “in the Minister's opinion” to the existing factors laid out in the act. What are those new factors that are laid out in the act that the minister may consider, again that the minister is not required to consider but might choose to consider, given these proposals from the government?

Those seven factors are whether, in the minister’s opinion, the offender’s return to Canada will endanger public safety, including the offender's victim, family or any child, in cases where the offender has committed a sexual offence involving a child, as well as whether, in the minister’s opinion, the offender is likely to continue to engage in criminal activity in Canada. The new bill also proposes that the minister may take into consideration the offender's health, whether the offender has refused to participate in rehabilitation programs, whether the offender has accepted responsibility for his or her crime, the manner in which the offender will be supervised after his or her transfer, and whether the offender has co-operated with police.

However, the most important change in this list of factors is the seventh factor, which would allow the minister to take into consideration any other factor that the minister considers relevant. Let me quote that again. The direct quote is “any other factor that the Minister considers relevant” while evaluating an application for transfer.

That is a huge opening to discretion that is utterly inappropriate in this process, that any minister could have the opening to whatever he or she wanted to think was a consideration. To add that into this process is completely inappropriate and irresponsible of the government to go down that road. If there is a reason for defeating and abandoning this legislation, it is right there in that phrase.

What have New Democrats been saying? We have heard a number of New Democrats participate in this debate today. Our justice critic and our public safety critic have participated in the debate.

We agree that enhancing public safety should be one of the purposes of the bill. The safety of the public should be given consideration when assessing an application for transfer. I believe it is already included in the factors that the minister is required to take into consideration. I am sure any minister evaluating an application for the transfer of an international prisoner would take that into consideration.

I do not think there is any indication, and there certainly has been no evidence presented by the government, that public safety has ever been compromised under the current act. It certainly does not seem to be a dramatic problem, and one wonders why the government dreamt up this idea in the first place. It is not an issue that I have ever been apprised of in the exercise of this legislation and this program.

It is important to remember that Canadians transferred back to Canada under the act are not being released immediately into the community. They are returning to serve out their prison sentence in a Canadian correctional facility, where they have access to rehabilitation programs and will be subject to the supervision that our correctional system provides.

We have to remember that whether or not these individuals are approved for a transfer they are eventually going to come back to Canada. When somebody is sentenced to a crime overseas, they serve their time, and at the end of that time, they come home. We cannot block their return to Canada. It is to our advantage to ensure that they have rehabilitation, that they have access to programs that will help them turn their lives around.

That is one of the reasons that a transfer in many cases enhances public safety. If we can get someone back, if we can get them into our rehabilitation programs, if we can ensure that their parole conditions allow for appropriate supervision once they are out of jail, our communities will actually be safer in the long run, safer than they would be if somebody came back who never had to engage in any of these programs and who cannot be supervised once back in Canada. There are lots of good reasons for wanting them to participate in these processes. Public safety is a significant consideration already, given the way these programs work.

We can offer anger management programs, rehabilitation programs, and substance abuse programs in our prison system. Often none of these things is available in programs outside Canada. It is to our advantage to make sure that a Canadian convicted of a crime overseas has access to these kinds of programs.

That is a crucial reason why this legislation is ill-conceived. It would not contribute to public safety. It would lessen public safety, because it would remove the possibility of people engaging in our criminal justice system.

We have to look at how this system has operated. What is the reality of what has happened over the years? How has it functioned? Why would we consider changing the program if there is no evidence that there has been a problem? This is crucial.

There are statistics and facts to bring to bear when we look at this matter. I will give the House one statistic. Of 620 Canadians who were transferred back to Canada under this program between 1993 and 2007, and who were reviewed for readmission to penitentiary in the two years after their sentence expired, only four were readmitted for a new offence. This is .6% of the 620, a .6% recidivism rate among people who were transferred back to Canada to serve out a sentence for a crime they committed overseas. That is an incredibly low recidivism rate.

There is probably nothing in our criminal justice system that could approach this rate of success in ensuring that people do not get into more trouble once they have done their time. The general recidivism rate in our corrections system is around 20% to 25%. This by any measure has been an incredibly significant and successful program.

Given that kind of success rate, a recidivism rate of only .6%, that is, only four people with serious problems out of 620 between 1993 to 2007, it is beyond me why the government would change this program, make it more difficult to participate in it, or even suggest that we ought to increase the ability of a minister to deny someone access to a transfer back to Canada to serve out his or her sentence.

This program has worked. This is a program that we have long-standing experience with. This is a program that allows someone who has gotten into trouble overseas to engage the criminal justice system and correction system in Canada and take advantage of rehabilitation, substance abuse, and anger management programs. We have built these programs into our criminal justice to make our communities safer and to ensure that people who get into trouble have a way out, a way of turning their lives around after making mistakes.

This program allows participation in those kinds of programs. Yet there is a suggestion from the government that we should turn our backs on that success. I think it is absolutely incredible, to put it mildly, that the government has cooked up some mysterious reason that this is an urgent issue demanding the immediate attention of Parliament. There is no reason for us to take up our time in reviewing this program. The program is working and it is necessary. It is an important program for Canadians.

We have heard other reasons in the debate this afternoon about how the program sometimes permits people who have been unfairly convicted overseas to find a way back to Canada. That is one situation that we also need to keep in mind. We have recognized problems with criminal justice systems in other countries, and this program has given us a way of ensuring that Canadians have some recourse when they have suffered unfair convictions overseas. That is something we also need to keep in mind when we look at this.

I believe this is ill-conceived legislation, and I hope it will go down to defeat very shortly in the House. I cannot tell the government to go back to the drawing board, because I do not know what the issue was that it was trying to address in the first place. I do not think it should be mucking around with this successful and important program.

There is little more to be said, except that this bill deserves to go down to defeat in the very near future.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, Bill C-5 is in its second incarnation in this House. It was first introduced as Bill C-59 in November 2009. Of course, it got killed as did so many other really important pieces of crime legislation that absolutely had to be passed immediately. Because of the Prime Minister's prorogation of Parliament in late December 2009, it went down the tubes as did all the other bills at that time. In spite of the protestations and advocacy we heard from the government side about the absolute need to pass these bills immediately, of course prorogation was more important. The bill was then reintroduced in April when it had three hours of debate. The government never did bring it back in the spring, but finally brought it back in the fall of this year.

This bill is quite offensive to a fundamental principle of our democracy, and western democracies in particular. That principle is the rule of law. This is not the only bill where the government has attempted to do this, and in some cases has done it, but it shifts significant power into the whimsical hands of ministers. When I see that, I sometimes think we are back at the point where we have the divine right of kings, that rule where the government of the day gets to make whatever decision it wants based on whatever reason it wants. That basically is what the bill would do.

We just heard from my colleague from Burnaby—Douglas that the system as it is right now, since 1993, has had four cases of recidivism out of 620. That is a rate of .6%.

I will come back to this point in more detail vis-à-vis the two cases that came down on Tuesday of this week from the Federal Court where the decision, again a whimsical decision, of the minister of public safety of the day was overturned. If we proceed with this bill and more prisoners in other countries are refused access to this program, what happens then is they will come out of prisons in other countries where there has been no rehabilitation program at all and will come back to Canada without any criminal record, which makes it difficult for our police forces to be able to pursue them. They will come back to Canada without any parole provisions or any supervision post-custody, because of course that is all done in the other country. They will come back here because they are Canadian citizens and we have no basis for not letting them back into the country. That may be something the current government will try taking a shot at, again. However, we cannot do that under international law. They will come back to Canada without a criminal record, having received no rehabilitation while they were incarcerated and with no supervision control over them when they are back in Canada.

I ask the government to stop and think for a minute about what that means vis-à-vis recidivism and the likelihood of more crimes being committed by those individuals who oftentimes have been convicted of fairly serious crimes in other countries.

We talk about safe streets and safe communities; they are speaking points, buzzwords. How safe are our streets, how safe are our communities going to be when we dump those people back into our communities with no supervision, no rehabilitation? Oftentimes they are coming out of prisons in other countries that just hardened them. Oftentimes they come back with serious mental health problems as well, if they did not have them before. That is what is going to happen if we reduce the number of cases that are allowed access to this program.

It has been an extremely successful program. There is no other program that anyone can point to with that low a recidivism rate. There is not one in Canada. I do not know if the government thinks that by doing this it will somehow reach perfection. The opposite is going to happen. Many more people will come back after many years of incarceration elsewhere and commit serious crimes in this country.

If we keep the program as it is now, it could use some fine tuning. If we keep it as it is now, we allow access to it. When people are incarcerated here, we see to it that they go through the rehabilitation programs in Canada. When they are released, it will be under parole supervision, oftentimes for extended periods of time. They will have a criminal record in Canada. All those mechanisms will exist to protect our communities. They absolutely disappear if people do not get access to this program.

There is another point I would like to make with regard to the actual provisions in the bill itself. The government has listed eight criteria, all discretionary on the part of the minister to consider. I listened to my colleague from the Conservative Party who spoke just before me. He said that these things do not have to be taken into account. Sure, it would be good to know whether an individual in a prison in another foreign jurisdiction had refused rehabilitation programs, but the minister does not have to take that into account. All eight of the criteria are met.

This brings me to the kind of exercise of discretion that we have seen. On Tuesday, two rulings came down from the Federal Court. I have to apologize that I was not able to get the actual rulings and I am working with some of the quotes that have been taken by media out of the rulings. There are two separate cases.

In one case the court clearly and bluntly said to the minister, “We don't understand how you could have drawn these conclusions. The facts in the case are this. You made your determination and said the facts of the case are exactly opposite”. That is the kind of whimsical discretion we are seeing exercised by government ministers in the face of legislation that requires them to exercise their discretion reasonably, which was another determination the court made in that case, that it was not exercised reasonably.

The reasons given were completely contradictory to the actual facts as found by the trial judge in that case, completely contradictory. It was not just the trial judge, by the way, it was also the prosecutor. The case was overturned and sent back for reconsideration by the minister. One can only guess what is going to happen if that case comes up under the legislation being proposed. The current legislation will not apply because it will not be retroactive.

The court very clearly told the minister that he did not know what he was doing, that he was doing it all wrong and completely backward. Now the government is proposing to give other ministers unlimited discretion. The wording in the last of the eight criteria reads this way, “any other factor that the minister considers relevant”. If the minister considers the colour of the prisoner's skin, the colour of his eyes, whether he has short hair or long hair as relevant, he or she can determine that. There is absolutely no limit to what is relevant because it is all at the whim of the minister.

We are hearing from the Conservatives that this is sub judice, but there is no realistic possibility for an appeal of this case. The Federal Court judge decided that case on the facts of these two cases. The second case is troublesome from one standpoint. I believe that the wording is accurate, but I am only quoting from the article in the newspaper.

What Justice O'Keefe said was that the courts “cannot condone nor accept completely unstructured discretion”. If they apply that, in the light of the charter, this law will not survive a charter challenge. It is quite clear in that wording.

What we will hear at the public safety committee, if it gets there because there is substantial opposition from all opposition parties, but if it does pass at second reading and gets to committee, is the minister saying that he has had his people look at this and that it is charter proof. We have heard that from the Conservatives a number of times with a number of cases on other bills they have passed, supported, oftentimes, by the Liberals, and then struck down because they are not charter proof.

We have heard reports in the last few weeks in the media about well qualified public servants within the Justice Department speaking anonymously that they are constantly under pressure to agree to let the courts decide. They hear from the minister and the minister's office, whether it is public safety or the justice minister, “Don't worry about it, don't worry about the charter. If we're wrong, let the judges fix it”. That is not only an abdication of responsibility but it is also a dishonest approach both in the House and to the public safety and the justice committee and to the public generally.

The Minister of Justice and Attorney General of Canada has a responsibility to not present legislation to the House that clearly will not survive a charter challenge. It is not a maybe might survive, but we will let the judges decide. The Minister of Justice and Attorney General of this country has a responsibility to only present legislation that he believes, based on firm opinion and on the law and the charter, that it will survive a charter challenge. That is not what has been happening since the Conservatives have taken power.

We are constantly seeing sections come through both the justice committee and the public safety committee, sections that will not survive a charter challenge, but we are hearing from the Minister of Justice and Attorney General that they will. Then cases come on and there are many more pending. We know there are all sorts of sections that will get struck down. This is almost certainly one of them based on the decision of the Federal Court on Tuesday.

We in the opposition parties are faced as a Parliament at this point of having to tell the government that based on this decision it should withdraw the bill, take it back and have another look at it. I will concede that there are some provisions with regard to the eight point criteria that we would be prepared to support. As I mentioned earlier, if we know from the other jurisdiction that a prisoner has refused to take rehabilitation programs in that jurisdiction while incarcerated, that should be taken into account, not may be taken into account, by the ministers as to whether they will allow the person into the program. We would accept that.

The bill should be sent back to the Department of Justice, redrafted to make those criteria that are acceptable mandatory, that the minister must take them into account in making a decision and, of course, removing the absolute discretion of the minister that the bill is proposing at this time.

I will now talk a bit more about some of the cases I have had to deal with in my office since the government came into effect. We are now on our third public safety minister but they have basically all acted the same way. There has been a significant increase in the number of rejections by the government minister of the day since the Conservatives came into power, cases that have cried out.

I remember one case a member from Edmonton raised and then got slapped down by the minister, and I assume by the Prime Minister's Office, involving a case of a person incarcerated in Cuba. I have had two of those myself in my office where they were denied access to the program.

In all three of those cases that I know quite intimately, under the old regime, prior to these minsters, all three of those people would have been admitted back into Canada. In all three cases, the fact that they were not, we are going to get people back in our country who are not going to be supervised, who will not have a criminal record because they did not have one when they left Canada and, as all three of those cases are in Cuba, none of them had access to any rehabilitation programs. One of the cases involves a severe health problem. I am not sure that person will ever make it back to Canada. He may very well die in a prison in Cuba. It was not a death sentence that he was sentenced to either.

Then we have that really notorious case in Florida of a young man out of Quebec suffering from bipolar or schizophrenia. This has all been in the paper and so I am not releasing any information that has not been made public by him and his family. On his way down to Florida he stops taking his medication. He gets into a fight just inside the Florida border and, in the course of the fight, the other combatant is killed. He is convicted to the equivalent of our second degree murder or manslaughter. He is receiving absolutely no treatment. He is not even getting most of his medications while incarcerated and sentenced to life. All of that information was put before the minister and he rejected him having access to the program. The state of Florida did allow him to have access to the program.

I do not know if I made this clear, but the jurisdiction where the person is incarcerated must agree first that the person will be released back to Canada and then our minister needs to go along with it. Florida officials said that they would release him back to Canada so he could serve the time in Canada but our minister rejected that.

We have those kinds of cases. Their conduct is inhumane. What we will be doing here with this bill, if it goes through, is augmenting extensively their ability to do it, if it survives the charter challenge. It is a very offensive bill from that vantage point. I go back to my opening comments when I said that we are a democracy, that we are based on the rule of law.

I happened to be flying during the summer break near the end of the summer and I watched the current Robin Hood movie. There we had it, 900 years ago. Our system began to curtail absolute discretion on the part of our rulers and replaced it with rule of law. This bill would take us back to a similar period of time where we do not have rules that ministers have to follow, exercising their discretion within those. Our charter says that we should and I hope, should this bill ever get into law, that the charter will be strong enough to reject this and say that it is unconstitutional and offensive to our rights in this country.

That is not the route we should go. We should not fall into the trap that the Conservatives have fallen into of saying, “Well, we are not sure, but this is what we want to do ideologically, this is what we want to do politically, we have to be seen to be tough on crime and so we will let the judges decide”.

This is a minority government and the opposition parties have a role to play. We will not fall into that trap. We are parliamentarians and we have a responsibility to protect all of our citizens from unjust laws. This is an unjust law and we should all vote against it and defeat it at second reading.

[Phil McColeman, Conservative, Brant, ON]

Mr. Speaker, I appreciate the opportunity to rise today in support of Bill C-5 which, as its short title suggests, will do a lot to keep Canadians safe and ensure that our streets and communities are better and safer places for everyone.

This, of course, has been one of our government's top priorities since first elected in 2006 and remains so today.

Our 2010 Speech from the Throne commits our government, among other things, to ensuring that Canada remains the best place in the world to raise a family and to stand up for those who are building our great country. It commits us to ensuring that the law protects everyone and to ensure that those who commit crimes are held to account.

Canadians want a justice system that delivers justice and we know that we can protect ourselves without compromising the values that define our country. Specifically, it notes that for many Canadians there can be no greater accomplishment than to provide for their children, to contribute to the local community, and to live in a safe and secure country.

Our government shares and supports these aspirations which is why we have taken action on the economy and on many other fronts including cracking down on crime. In particular, we have introduced several measures to crack down on violent gun crimes.

Thanks to our government, a killing linked to organized crime for example will now mean an automatic charge of first degree murder.

We have also passed legislation that addresses drive-by shootings and other intentional shootings while offering more protection to police and peace officers.

This government has also passed laws that limit the amount of credit given for time spent in pre-sentence custody ensuring that offenders serve sentences that truly reflect the severity of their crimes.

Most recently, our government introduced legislation to strengthen the national sex offender registry and the national DNA data bank. These measures will provide additional protection for our children from abuse and exploitation.

We have done a lot already to deliver on our commitment to Canadians and to make our streets and communities safer.

The legislation before us today builds on this impressive track record by, among other things, recognizing that one of the key purposes of the International Transfer of Offenders Act is to protect the safety and security of Canadians. The bottom line, as I mentioned, is that Canadians want a justice system that works. They want a corrections system that treats offenders fairly but they also want a corrections system that considers the rights of victims and law-abiding Canadians.

That is what the proposed amendments our government has introduced will do. The legislation which our government has introduced recognizes that public safety considerations are at the centre of all offender transfer requests. It will help to protect victims by stipulating in legislation that the minister may also consider whether the transfer of an offender will endanger the safety of a victim. It will help to protect the safety and security of family members and children by again stipulating in legislation that the minister may consider whether a transfer will endanger the safety of a family member or a child.

As well, the legislation which our government has introduced will stipulate that other considerations such as whether an offender has participated in a rehabilitation program may be considered in assessing offender requests for a transfer to Canada. This is not specifically stipulated in the legislation today.

Today the minister is required to consider a number of factors when assessing requests for a transfers but nowhere is there any mention of public safety, nor is there any mention of victims or families or of keeping children safe. These are serious omissions. That is why Bill C-5 is so important.

The legislation which our government has introduced would make it clear that the minister can take into account whether the transfer of an offender might endanger the safety of a victim, such as a child in those cases where the offender has been convicted of sexual abuse involving a child.

Our legislation also makes it clear that the minister would also be able to take into account whether a transfer might endanger the safety of a family member.

It also stipulates that the minister would be able to consider whether the offender has accepted responsibility for the offence or whether he or she will engage in subsequent criminal activity upon re-entry into Canada.

As we have heard, these considerations should surely help to guide decisions about whether to grant requests for a transfer from offenders serving a sentence overseas. But at the moment there is no clear legislative authority for the minister to take them into account. That is what Bill C-5 would change while also giving the minister more flexibility in the decision-making process itself.

Bill C-5 would perhaps, most importantly, ensure that the purpose of the act includes considering public safety as part of the decision-making process in the transfer of offenders.

It, therefore, reflects this government's commitment we have made to Canadians to stand up for victims and to ensure our streets, our homes, and our playgrounds are safer places.

That is what the legislation before us today is all about and it is why I am confident that Bill C-5 has the support of all hon. members.

The House resumed from April 22 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.

Official Report

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I am rising to correct the record, with regard to my speech at second reading on Bill C-5, An Act to amend the International Transfer of Offenders Act.

In my speech, I stated that not one offender, who has been granted a transfer back to Canada to resume and serve his or her sentence, has ever reoffended.

I misquoted that statistic. In fact, of 620 Canadians transferred back to Canada between 1993 and 2007, four were re-incarcerated for a new offence within two years after the expiry of their sentence. This represents a recidivism rate of 0.6% for Canadians transferred under this legislation, which compares to a recidivism rate of approximately 25% for offenders in general.

Of course we cannot compare it to the rate of offenders who are not transferred but return to Canada after serving their sentence abroad because those offenders re-enter Canada with no monitoring or record of their foreign convictions. So we do not know what those numbers are.

Mr. Speaker, thank you for giving me the opportunity to correct the inaccuracy in the record. Although my point is nevertheless valid, I regret any confusion I may have caused.

Keeping Canadians Safe (International Transfer of Offenders) Act

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Madam Speaker, today I rise to share my thoughts on Bill C-5, An Act to amend the International Transfer of Offenders Act, with my colleagues.

I want to begin by stating that my deepest desire is to see an environment that promotes safety everywhere in Canada so that all Canadians can be safe no matter where they are.

There are many ways to achieve that goal. Today we are debating one of those ways.

Bill C-5 would amend the International Transfer of Offenders Act. This bill would enable the government to request the transfer of Canadian prisoners serving sentences in countries other than Canada.

Bill C-5 is part of the Conservative government's extreme law and order agenda. The militant western Conservative base strongly supports this vision.

Make no mistake about it, this bill is an opportunistic attempt to garner votes. It seeks not only to protect Canadians, but also to get the law-and-order Conservatives re-elected at any cost.

According to the bill summary, one purpose of the bill is to enhance public safety. Clause 3 adds another objective to the Act:

The purpose of this Act is to enhance public safety and 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.

I think that if we add this new objective and give the minister discretionary powers with respect to factors he may take into consideration, the minister will be able to use public safety as grounds to deny as many requests for the transfer of Canadians incarcerated abroad as possible, thereby undermining all of the other objectives of the Act.

I will attempt to show that this bill will weaken public safety, not enhance it. Prior to this, the notion of public safety was, in practice, limited to terrorist threats and threats of war against Canada or against the general population.

In a Federal Court case, Getkate v. Canada (Minister of Public Safety and Emergency Preparedness), the judge had this to say about public safety:

—the Court also finds that there is no evidence on the record demonstrating that the applicant constitutes a potential threat to the safety of Canadians or the security of Canada. While the minister attempts to invoke the section as a means of demonstrating that the applicant poses a general threat to Canadians should he be returned to Canada, use of the phrase “threat to the security of Canada” has traditionally been limited in other legislation to threats of general terrorism and warfare against Canada or threats to the security of Canadians en masse. In the case at bar, while the applicant may pose a general threat to specific pockets of Canadian society should he re-offend, he clearly poses no “threat to the security of Canada” as the term has been interpreted in other legislation, such as the Immigration and Refugee Protection Act...or the Canadian Security Intelligence Services Act.... If the threat to Canada was the mere risk that the offender would re-offend, then such a consideration could be applied to every inmate seeking a transfer.

In this matter, the judge set aside the minister's decision.

Is this bill the minister's way of reacting to the judge's decision in the Getkate case? Is it an attempt to close the door to any judicial control over decisions? It is already very difficult for a judge to set aside a minister's decision.

I am not a legal expert but I know that, to be set aside, a ministerial decision must be found to be “unreasonable”. The burden of proof was very high for the individual and he had little chance of winning.

However, in the Getkate case, the judge set aside the minister's decision, despite all his discretionary power and the substantial burden of proof.

Bill C-5 gives the Minister of Public Safety a great deal of discretionary power and opens the door to abuse of power.

Under the current act, the minister considers four factors in determining whether to consent to the transfer of a Canadian offender. Those factors are: whether the offender's return to Canada would constitute a threat to the security of Canada; whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence; whether the offender has social or family ties in Canada; and whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights.

Bill C-5 gives the minister some very important additional discretionary power. The minister may consider other factors. The bill does not say that the minister does or shall consider these factors, but that he may consider them.

These are the factors added in the bill:

(b) whether, in the Minister’s opinion, the offender’s return to Canada will endanger public safety, including

(i) the safety of any person in Canada who is a victim, as defined in subsection 2(1) of the Corrections and Conditional Release Act, of an offence committed by the offender,

(ii) the safety of any member of the offender’s family, in the case of an offender who has been convicted of an offence against a family member, or

(iii) the safety of any child, in the case of an offender who has been convicted of a sexual offence involving a child;

(c) whether, in the Minister’s opinion, the offender is likely to continue to engage in criminal activity after the transfer;...

(g) the offender’s health;

(h) whether the offender has refused to participate in a rehabilitation or reintegration program;

(i) whether the offender has accepted responsibility for the offence for which they have been convicted, including by acknowledging the harm done to victims and to the community;

(j) the manner in which the offender will be supervised, after the transfer, while they are serving their sentence;

(k) whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency; or

(l) any other factor that the Minister considers relevant.

This list includes everything but the kitchen sink. It is broad. It is a very significant power to put in the hands of a single person, especially when we know that the current government is a government of law and order whatever the cost. This is all very subjective and is an attempt to win votes.

We live in a democracy based on the rule of law where every decision must be fair and meet objective criteria.

I sincerely believe that when we entrust so much power to a minister in the absence of any objectivity, we may be abandoning Canadians to the whims of this government. When the public no longer knows how the government will handle requests, it may lose confidence in a system that is neither fair nor transparent.

I would like to read an excerpt from an article by Nathalie DesRosiers, professor of law at the University of Ottawa. Ms. DesRosiers was the dean of the faculty of law and she is speaking on behalf of the Civil Liberties Association about Bill C-59, which preceded the current Bill C-5 before the unnecessary prorogation of last December:

Even if some Canadians believe that Ministers in Canada would never make decisions based on such sordid grounds as political contributions, there is the appearance that they may. Indeed, the lack of boundaries to such discretion prevent an analysis of whether a decision is fair, sound and wise, based on a consideration of all factors.

It also prevents any legal accountability. This, in my view, is going in the wrong direction. Although politicians certainly have the power to conduct international relations on behalf of Canada: they should want to exercise it in a way that is fair and transparent. The absence of rules prevents Canadians from knowing how they will be treated and exposes the government to charges of favouritism when they act or refuse to act. Indeed, when a white Canadian is repatriated speedily from Mexico while an Afro-Canadian is left in jail in Sudan, Canadians wonder whether the government is acting fairly and reasonably or in a racist manner. A stronger legal framework helps dispell such accusations and allow for more transparent ruling.

I believe we must not only avoid putting decision makers in positions that could lead them to abuse their power, but we must also avoid any appearance that they may have such power.

I would like to share with my colleagues the case of a young constituent from Hull—Aylmer, who is currently being detained in a penitentiary in Florida after being found guilty of crimes committed in the United States.

Mr. Speaker, since my presentation on this young resident could take several minutes, I suppose we should stop now so that you can proceed—

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Madam Speaker, I do not want to offer an opinion as to which of the two governments is worse. Neither of them is without fault. I gave the examples of Maher Arar and Omar Khadr. These two cases represent a problem for the current Conservative government, which has refused to act, but we cannot forget that both of these cases began under the Liberal government, which also failed to take responsibility.

The purpose of my speech is not to talk about Bill C-5 in detail because many in the House have already done that. I am more interested in trying to focus on the bill from a different angle. Bill C-5 is not the end of the world and democracy is not falling apart. It is simply another step backwards. We are moving in the wrong direction towards an increasingly arbitrary system and further from our fundamental values, with more political influence at the expense of justice. That is what is happening and that is what I wanted to talk about.

Those before us fought for justice, for rule of law and for important principles that are difficult to defend. They are difficult to defend, for one, because those sitting across the way are rather backward-thinking and each time we defend these principles, they claim we are defending criminals. I am not going to take the simplistic approach of the Conservatives. I believe that people are intelligent. I know that those listening to us realize that a judicial error, such as being falsely accused, can happen to anyone, including the hon. Conservative members across the way. It can happen to anyone. That is why we need a solid legal system and why we need to stop attacking and weakening it, which is what is happening with Bill C-5. We must be strong in our convictions and accept that justice can sometimes be frustrating, because it takes longer and is expensive. That, however, is the price we pay to live in a society where justice prevails.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Madam Speaker, I really enjoyed the speech delivered by the member for Jeanne-Le Ber.

Basically, Bill C-5 seeks to concentrate decision-making power in the hands of Conservative ministers yet again. Over the past few months, and especially this week, the government and its ministers have certainly displayed their culture of entitlement.

This bill was introduced because one judge presiding over one case questioned the minister's judgment. This was one case in which the minister did not do his job, and as a result, hours and hours were spent debating a law that does not need to be amended, and certainly not like this.

I have a question for my colleague. Does he think that the Conservatives' sense of entitlement is even greater than that which Justice Gomery observed in the former Liberal government?

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Madam Speaker, I am pleased to be here today and debating Bill C-5, to which the Bloc Québécois objects.

Before continuing, I would like to mention a practice to which this government increasingly resorts, even though it verges on the grotesque. The Conservatives have developed a habit of giving ridiculous names to bills instead of focusing on the legal nature of the bills. Our parliamentary tradition is to identify the real purpose of a bill, but the Conservatives are increasingly giving them subjective names in order to sway people's opinion.

People watching us on television can see what we are discussing today at the bottom of the screen. It is the Keeping Canadians Safe Act. The government is trying to imply that people who oppose Bill C-5 are also opposed to keeping Canadians safe. It is totally ridiculous.

There are more examples of this increasingly common practice in other items on today’s agenda, for instance Bill C-13, the Fairness for Military Families Act. I do not want to go into this bill right now but there is obviously already a very subjective twist in the title. We also have Bill C-4, Sébastien's Law. It is even more pathetic because they are trying to take advantage of our horror at the type of tragedy that befell young Sébastien, who was killed in battle. The title implies that anyone who honours Sébastien’s memory should support the bill and anyone who dares to oppose it is against honouring his memory. It is totally absurd.

We saw it as well in the budget. They talked about an act to stimulate economic activity in Canada, or some other aberration of the kind. Another Conservative bill was called the trafficking of minors act, even though the word trafficking did not appear anywhere in the bill. Honestly.

This practice must stop. I do not know whether the bill before us today will go to committee, or if the others will, but I hope the committees that study them will be more objective and will give them names that reflect the legal reality. Today, for example, we are discussing the International Transfer of Offenders Act. That is the real name of the act. People can agree or not agree, but that is what this bill is really about.

If this practice continues, things will get absolutely absurd. There will be a bill to make Canadians happy or put them in good shape and good health or some fine bill to make things better. This does not make sense and should stop. I find this practice, which comes to us from the United States, particularly detestable.

Members may well remember George W. Bush introducing the Patriot Act after the attacks of September 11. It was anti-terrorist legislation and the purpose was to imply to the senators and representatives voting on it that if they were opposed, they were not patriots.

This completely subverts the debate and, most of all, insults our intelligence. It implies that people are not smart enough to discuss the heart of the issue. They think they are going to simplify things by calling it the Keeping Canadians Safe Act and everybody will be in favour because it is about the safety of Canadians.

This is a dangerous gamble on the part of the Conservative government. I would rather appeal to the intelligence of people. I think we can discuss bills just fine without giving them grotesque names.

It starts as the Keeping Canadians Safe Act.

In future, if Parliament wanted to amend this legislation it would have to call it an act to keep Canadians even safer than the Keeping Canadians Safe Act currently does. You can see where this is going. It is utterly ridiculous.

I want to come back to Bill C-5, An Act to amend the International Transfer of Offenders Act. The issue before us is the following. Under the current International Transfer of Offenders Act, what factors does the minister have to consider in determining whether to transfer a Canadian sentenced abroad to Canada or to transfer an American sentenced in Canada to the United States? I am giving the United States as an example, but obviously this applies to all countries.

The current legislation has a certain number of factors that the minister must take into account. He must, for example, take into account the person's health. He must ask himself whether the foreign prison system satisfies recognized principles of basic justice and rights for all. Has this system violated the basic rights of an individual and does it represent a risk to the individual's health and safety? For instance, has the individual been handed over for torture?

This is already in the act, but the government wants to make a change. The act would say that the minister, instead of having to consider all these factors, could consider them, but is not required to. Just imagine. He can look into whether the person incarcerated abroad is being tortured. He might like to know that, but then again he might not. Are the basic rights of the person incarcerated abroad being violated? The Conservatives may or may not be interested. They want the minister to have more discretionary power.

The Bloc Québécois obviously has serious reservations about this. We are already aware of the government's contempt for the rule of law and its contempt for our basic principles of natural justice. Leaving aside the government currently in power, what about a future government? We have to stick to the rule of law in place.

I will digress for a moment. This debate might seem a bit technical for many people at home, but there is something even more fundamental, which is our sense of justice. Do we want to continue to defend the rule of law and the system of natural justice? It is not easy; it is an ongoing battle, and it is intellectually challenging, since it is not necessarily what comes naturally for people.

Do we want to go back in time, to systems that slowly but surely become more and more arbitrary, subjective and inconsistent? Today's legal systems are sometimes complex. The public often believes that the system is costly and complicated and does not always work well. But if we look at the evolution of humanity, we have made incredible progress compared to what was done during medieval times.

People may tell me that is quite a stretch, but I think it is important to keep that perspective. In medieval times, people were tortured and imprisoned for no reason. The king made the decisions, and it was summary justice. Later, people realized that this did not help control crime, that human beings were too intelligent for it, and that we should develop systems to ensure independent justice with effective results.

At the time when certain countries first banned torture, it was not even on humanitarian grounds. They believed that if someone was tortured in order to get them to admit something, that person would always end up saying what the torturer wanted to hear. That is clear. If we want to convict someone, we can torture them and they will incriminate themselves. Does that really serve justice? Of course not.

Our western societies and those elsewhere in the world have developed a rule of law based on numerous principles. I will not list them all, but I will talk about those that I believe to be important.

First, there is the presumption of innocence. According to this principle, we assume that a person is innocent. It is too easy to accuse someone without any proof, to tarnish his reputation and interfere with his rights. We believe a person to be innocent until proven guilty, which is not easy. It tends to go against human nature. When a reprehensible and sordid murder has been committed and the police arrest someone, we want that person to go to jail and suffer. We say that we can sense that he is guilty.

A system has been put in place to curb that tendency and consider a person to be innocent until proven guilty.

The Canadian system also provides for the possibility of rehabilitation, which is important, and even fundamental. If we did not believe that a person can be rehabilitated, why would we hand out sentences other than life in prison? If we believe that someone will be a criminal their entire life, why release them? Our laws allow for different prison terms because we believe that a person can be rehabilitated at some point. We try to gauge that.

We believe that everyone has the same rights. The Conservative government often attacks this principle with an extremely unhealthy populism by saying that the opposition members—the Bloc Québécois, the Liberals and the NDP—are defending criminals. We are not defending criminals but defending fundamental rights and the fact that everyone should have the same rights. If they are not the same for everyone, then they are no longer fundamental rights. Defending the fundamental rights of a murderer is never very popular. However, fundamental and universal rights apply to everyone, even murderers and people who commit the most horrific crimes.

Under the rule of law, everyone is entitled to a fair trial before an unbiased judge or jury, in which the various parties have an equal opportunity to prove the guilt or innocence of the individual in question. These principles seem rather basic, but the government is undermining them more and more by meddling with the rule of law.

We believe that the powers of the executive branch and the judiciary should be kept separate. It is not up to us as elected officials, and especially not to ministers who are biased and have their own convictions, to determine who should be convicted or acquitted based on the law. Parliamentarians pass laws, but it is the judges and the judicial system that, separately, must enforce legislation and determine who has obeyed and who has disobeyed. Lastly, there must be a mechanism to correct cases of wrongful conviction.

Bill C-5 has only a few clauses. It might seem insignificant, but it could attack the principles I just talked about and could represent a considerable step back.

I have three examples.

Let us consider the case of Maher Arar. Hon. members will recall that this Canadian was deported on the strength of false information obtained by the Canadian Security Intelligence Service, Canada's secret service. He was tortured abroad and finally returned home. A commission on the Arar affair completely exonerated Mr. Arar, proving that he had no connection with terrorism. The Canadian government did not apply the principle of the presumption of innocence in Mr. Arar's case. He did not get a fair trial. The separation of the judiciary and the executive was not maintained in his case. In fact, it was the executive that authorized his deportation, first to the United States and then to Syria. Today, the government is asking us to give it even more power. Is it so that the government can attack our system of natural justice even more?

Let us consider the case of Allen Smith, who was convicted of a series of murders in the United States. Admittedly, Mr. Smith is no choirboy, and defending him is not a very popular thing to do. But even without defending Allen Smith, we can defend people's basic rights. In Canada, we believe, or at least it is the position of this Parliament, that the death penalty is cruel and unusual punishment that goes against our belief in the right to life. If this is true in Canada, then it is also true in the United States. It would therefore be fair to ask the Americans to give this Canadian citizen the same treatment he would receive here, which would mean commuting his death sentence to life in prison. But the Conservative government could not care less about the principle of the rule of law, where everyone enjoys the same rights, or the principle of separation of the executive and the judiciary.

When questioned in the House of Commons, the government answered that, in its opinion, the crimes committed were very serious and that, therefore, it would not intervene. Since when is it up to the minister to assess the seriousness of the crime? That is something new in our system and it is deplorable. It is not up to the minister to make that assessment, but up to the courts, which must establish whether or not the person is guilty and decide on the seriousness of the crime and the appropriate punishment. Furthermore, it is the House that passes the laws to punish various crimes. It is not the minister who decides whether or not to apply them.

In the case of Omar Khadr, it is even worse. Without exception, all the principles I mentioned previously have been violated. Omar Khadr is a child soldier who was arrested seven years ago and is still imprisoned by the Americans. He has not yet been put on trial. He is accused of killing American soldiers and, despite a Supreme Court decision, the government refuses to ask for his return to Canada.

There is obviously no presumption of innocence in his case. Nor does he have equal rights. His cruel treatment, bordering on torture, has been contracted out to the United States. He has not had a fair trial after seven years of imprisonment. There is no separation between the executive and the judiciary. The government has told the House that, in its opinion, the crimes are serious and therefore it has decided not to intervene, as though it was up to the minister to decide. The possibility of judicial error was not examined in the least. The government absolutely does not want to hear about the possibility of rehabilitation if—I did say if—Omar Khadr is found guilty.

Since I mentioned the possibility of rehabilitation, I would like to close by saying that we have to keep in mind one thing about this bill: if this bill is passed, the number of Canadians serving sentences abroad will increase. These Canadians, once they have served their sentences, will return here and will not be ready to be reintegrated into society. In many cases, it would be better to return them to Canada and have them serve their sentences here so that they are in a better position to be rehabilitated and reintegrated into society.

[Lynne Yelich, Conservative, Minister of State (Western Economic Diversification)]

Madam Speaker, the member said this was all about a whim. Bill C-5 is about ensuring the Minister of Public Safety may consider public safety as part of the decision making process for the transfer of offenders. The bill includes a factor that in the opinion of the Minister of Public Safety the offender's return to Canada would endanger public safety. It would allow the minister to consider, among other things, the safety of victims, the safety of the child and the safety of members in the offender's family, factors such as whether the offender was likely to continue criminal activity in Canada.

These are the principles on which the minister would base his opinion. It is far from being a whim, opinions such as an offender in poor health, or has co-operated with law officials or has acknowledged harm done to victims and communities. Those are the factors not whims that the minister would use in his discretionary power. These are sensible changes and they are about their commitment to protect the rights of victims or commitment to increase the responsibility of offenders.

There is nothing wrong with increasing the responsibility of the offenders. It is a part that the member does not speak to at all. When he speaks about the whim of a minister, it is not about the strength the minister has, it is about strengthening our commitment for the rights of victims.

I would like to know where he thinks that there is a not a responsibility of offenders. What about making our communities safer as a whole?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Madam Speaker, I have no hesitation in coming to the issue before us, a piece of legislation which I think is not even worthy of the debate this Parliament has undertaken.

Members will appreciate the fact that perhaps, unlike some of my colleagues in the House of Commons, I have spent a considerable amount of my career working to help Canadians in difficult situations get home. While all of those do not necessarily involve circumstances that are the most palatable, or something that on the surface may seem to be correct, appropriate and right, the reality is that my actions and those of my colleagues in the Liberal Party have always been governed by principle, by legislation that has been time honoured and treaties that have worked for Canadians as well as for our international reputation.

What the Conservative government is proposing today is really a deconstruction to facilitate more discretion for the minister to pick and choose who the minister wants to render or to bring home. The reality is that when we see this bill before us that refers to keeping Canadians safe, nothing could be further from the truth.

As many colleagues have mentioned already, when an individual is prevented by his or her government from coming returning home and getting proper rehabilitation, from a land in which the individual may have been guilty over there but not necessarily here, and in which the circumstances of the individual's incarceration does not lead necessarily to the individual's conviction here in this country, without reprogramming, without the opportunity to rehabilitate, we are opening up a Pandora's box and subjecting Canadians to certain harm.

On the question of harm, the Conservative government has not made the case for the bill. I truly believe it should not go beyond second reading for the simple reason there has not been one case with which the Conservatives can come forward on the question of recidivism. We do know that the government has spent a considerable amount of its time and the time of the courts dragging its heels preventing Canadians from coming home, forcing Canadians to hire lawyers and go to the Federal Court of Canada in order to get the government to act, to stand up for the rights of Canadians abroad.

Members will understand my surprise at this kind of arbitrary discretion given to the minister, not based on fact. It surprised me because the bill was introduced by the Minister of Public Safety. Where is the Minister of Foreign Affairs? This is a treaty of a transfer of offender. If I understand the role of the public safety minister, formerly known as the solicitor general, it is to ensure that there is an appropriate understanding between the two nations when it comes to a transfer. It surprises me that the Minister of Foreign Affairs, one of the proudest portfolios we have in our government, is mute, relatively silent, taking a back seat and, I would say, irrelevant in this process.

I want to talk a little bit about the experiences I have had with Canadians who have had difficulty returning home. I am not talking about the imbroglio years ago with which I had to become involved with respect to the return of someone like, for instance, Brenda Martin. The government, after dragging its legs, heels, whatever, decided at the last moment that it would spend $90,000 to bring her home, when all it had to do was press for the case. There is something far more important with that case as it applies to many others. I can cite for colleagues examples of where Canadians have found themselves in difficulty.

Often the transfer of offender treaty is a mechanism where we may disagree with the legal system of another country, but once the person's trial is over, the transfer mechanism can be triggered. This allows us a political but also a diplomatic way of ensuring the return of a person who has been ill-treated abroad because the person happens to be a foreign national, because the person happens to be Canadian, because the person has been subjected to shoddy police investigations there, where the person has been subjected to a rule of law in that country, good or bad, that may not, for instance, adhere to the principle, the concept, the very maxim of presumption of innocence.

This mechanism, agreed by most nations around the world, a transfer of offender treaty, has worked well for Canada since 1978. It was codified in 2004. It has helped Canadians and certainly improved Canada's standing internationally when it comes to reciprocal roles between nations. We do not always have to agree with the legal system of another country.

Let us understand why this legislation is here. Sine 2006, the Conservative government has taken upon itself to refuse to bring Canadians home. This is not done with a ministerial refusal but by finding excuses such as a CSIS review or subjecting a person to incarceration longer because the government cannot find a way of saying no, even though the approvals have happened to bring the Canadian back to Canada from the host country where the Canadian has been incarcerated. I will provide some examples.

Hundreds of Canadians can be detained or sentenced to incarceration in foreign lands. Of course, we know that some deserve to be behind bars, but there are other cases, as I have mentioned, that are not so clear-cut. A growing concern in recent years is that it seems when Canadians get in trouble abroad, there is often an automatic assumption by some officials and, yes, some politicians that the subject is guilty and should be left to his or her own fate.

This is a rather dim view that can be evidenced by the fact that the government approval rate of transfer of offender applications filed by Canadians serving sentences abroad has declined in recent years. It is down from 140 cases approved by Canada in 2005 to a low of 58 in 2006, 75 in 2007, and 108 in 2008.

I should point out that the slight increase in 2008 may be due to recent court rulings urging the government to lighten up on denying such requests. It is worth noting that in 2005 no transfer request was in fact denied. However, in 2008, 26 were refused and the refusals have drawn some attention and could support the view that the government is taking a new and rather heavy-handed approach to dealing with wayward Canadians.

In one court ruling a couple of years ago, Justice Kelen commented that the government should be taken to task on its transfer refusal. The court went as far as to state that contrary to the Minister of Public Safety's view, not everyone abroad constitutes a threat to national security. My goodness, there are 45,000 people incarcerated in this country. Are we to assume then that the minister thinks that all 45,000 are a threat to national security?

When we look at the facts underlying the reason the government has been motivated to bring this kind of legislation forward, they have nothing to do with what we are reading in it. It is not keeping Canadians safe. It is keeping Canadians in the dark. It is denying them a series of circumstances. It demonstrates to Canadians above all that the government is all about quick witty comments such as fairness at the gas pumps and keeping Canadians safe. It is a fraud. It is not true.

If the government is trying to go after a particular constituency to make a few people happy, that is great, but I can say that in my time I have dealt with people across the aisle, Conservatives, Bloc members, New Democrats, and when one of their constituents who may have supported them is in difficulty, there is never a question from a Liberal or most members of Parliament as to whether or not the person voted for a certain party before getting service. Giving discretion to the minister leaves us in a position where we are now going to subject the right of a Canadian to return, often in circumstances that are unbelievable, based on the whim of the minister.

We believe in the rule of law, not the rule of thumb.

It is extremely important for colleagues to recognize that this piece of legislation may be couched under circumstances that may allow the government to appeal to a particular constituency in this country. I can only say that I have met people who have been and are part of that constituency and it is a different thing when it is their son, their daughter, their aunt, their friend, their relative who is in difficult circumstances.

We have seen the government act in a way that is capricious and we cannot have a situation of picking and choosing Canadians we are going to help abroad. Nor is it lost on people how unseemly it is for individuals to have to take their cases to court because of a government that hides behind its royal prerogative to help or not to help.

The Conservatives campaigned a few years ago on a platform of standing up for Canadians. It is too bad they do not do it when it comes to Canadians abroad unless they are embarrassed into doing it, until they are forced to do it or because someone who happens to be well connected to their party made a phone call saying they ought to look at it.

There is the case of Mr. Kapustin, for whom the Minister of Citizenship, Immigration and Multiculturalism quite rightly went to bat, but there are hundreds of other Canadians like him. There is Brenda Martin. The Minister of Transport, Infrastructure and Communities went to see Bashir Makhtal in Ethiopia. It was very laudable, but there are hundreds of Canadians who find themselves now caught in a situation where the Minister of Public Safety wants to use some undefined, unspecified and very arbitrary decision-making power that is contained in this legislation to choose who is and who is not going to get the chance to return home.

I cannot think of a better example of why parliamentarians exist, and that is to prevent the unchecked power of cabinet and of the executive to make decisions based upon circumstances ill-defined, certainly in legislation.

We have every reason to worry about this. Canadians travel for many reasons such as business, education, tourism and volunteering at work. They should not commit crimes whether they are here or whether they are elsewhere around the world, we know that. However, we know that some, unfortunately, will.

We also know that Canadians may be convicted in the context where the presumption of innocence is ignored, where prejudice against foreigners, human rights violations and unsavoury policing techniques lead to convictions of innocent persons. We also know that sometimes harsher sentences are imposed on foreigners than on nationals, and I have a number of examples of experiences with this. The possibility of serving the remainder of a sentence in Canada, in my view and I think the view of what we have seen in practice, may alleviate these perceived and sometimes real injustices.

Should Canadians have the right to be transferred? If, indeed, the conditions of incarceration amount to what would otherwise be considered matters of cruel and unusual punishment, in this case and as this legislation from the Conservatives proposes, should they be at the mercy of the minister's whim in the evaluation of such critical and crucial decisions? I think not.

I ask Canadians to look beyond this bill before us called keeping Canadians safe. They should look at it and scratch back a bit of the surface. It is wonderful and we all want to be safe, but there is nothing that binds Canadians together more than recognizing that we believe in the ability of an individual to rehabilitate themselves.

We have an excellent correctional service system in Canada, of that I have no doubt. However, as I mentioned earlier, it is this transfer of offender treaty that allows many people, who would otherwise find themselves permanently in jail, incarcerated, tortured, deprived of the very basics of human rights because of a ministerial whim, to return to a country that has forsaken them.

This is not a question of making a point about good people and bad people. If they are jail in other countries, there is probably a very good reason for it. However, all too often we see there are extremely important examples of where people have been put in jail through no fault of their own.

What do we do with Mohamed Kohail, who just a few months ago was sentenced to death? That sentence, we hope, will be lifted at some point. What about William Sampson, a case which I was directly involved with, who was about to be executed? We worked with those countries and we worked to ensure that our relations with those other nations were paramount so that the life of the Canadian in this case, and we hope in the case of Mohamed Kohail, would be spared.

Canadians are languishing in jails around the world. The least they would expect is for Parliament to give a rubber stamp or a green light to a practice of saying that we may or may not like them, but we do not want to tell them why we may or may not like them.

My hon. colleague, the member for Hull—Aylmer, raised a question about a particular case. I know the case very well because it was one of an individual who is bipolar and who had done something obviously wrong, but at the end of his time in prison, half his sentence was served, the American government and the State of Florida said that he could return to Canada, that they had no quarrel with it. However, the Conservative government that said, no, that it wanted to keep him there. It knew he was bipolar and that he had difficulty. It knew he did not get treatment while he was in that facility, but it did not want him back.

The right of a Canadian to return is a right that cannot be compromised or changed by judicial discretion or ministerial indiscretions, and that is of great concern to members of Parliament on all sides of the House.

If I sound passionate, it is because I back up what I say with action. I call on the Conservatives to back off on this nonsense. There is no reason to have this kind of legislation. When Canadians, who I think are extremely intelligent on these kinds of things, have an opportunity to look at it, they will not be fooled. They will not be fooled by “keeping us safe” when it is in fact tantamount to making Canadians unsafe.

People who return from torture and squalor in another nation and have been kept there because of the discretion of the minister will not come back programmed to go back into society. Let us understand this. They are not folks who have committed an offence in Canada. They get off the plane, the boat, the train or whatever the case may be and they go into the general public.

Where is our public safety there? The government has to be clean. It cannot confuse messages to be cute, trendy or trite when all it is doing is potentially subjecting Canadians to more harm, while at the same time damaging the lives of individuals who did no crime in Canada.

We understand the transfer of offenders treaty. People commit serious offences in another country. After a period of time, the country agrees, through treaty, to send them to serve out the remainder of their sentence in Canada. People who have committed serious crimes in other countries will have to serve the remainder of that sentence in the Canadian context, and that is very important to stress. They will at least be in a Canadian facility so they can be directed in a way that they can get back on the streets and rehabilitate themselves.

We do not have something like dungeons in our country. We do not torture people in our country. We believe in the ability of people to reintegrate into society at some point. That is, after all, why we call it corrections. By allowing the minister to do this through misadventure, and by supporting an ideology, which I think under scrutiny most Canadians would not accept, is wrong. It is flim-flam and it is not standing up for Canadians but rather trampling on Canadians.

In my time as a member of Parliament, dealing with some of these cases, I have often thought it interesting when I visit someone who has been in jail and has been tortured. It is interesting and depressing to know that the person has only one link to Canada and that is a Canadian citizenship. People fought for our liberties in the Boer War, the first world war, the second world war and the Korean War. What our young men and women are doing in Afghanistan today is making our country proud. I think the last thing on their minds would be to see us compromising our framework of legal, democratic bodies of law that protect Canadians at an instant.

For the members of the government on the other side who have proposed the legislation, it is not only flawed, but it sends the wrong message. It does not improve Canada's image and it does nothing to protect Canadians. It does not do a service to those men and women who have given their lives and continue to make our country proud on a number of fronts.

We should talk to our police about Canadians who have returned and the importance for rehabilitation through our correctional services. Every person has the ability to change. Some may not, but if they have not committed a crime in Canada, we should give them the benefit of the doubt. The facts bear out. How many Canadians have returned under the transfer of offenders treaty and offended? Not one.

The argument made to justify this legislation is false, it is misleading and it is a fraud. I would suggest to all members of the House that this does not deserve the debate in committee. There are only a couple of amendments, including changing “must” to “shall” and giving the minister discretion that, in his or her opinion, the person should or should not return.

I do not think that discretion should be given. I do not think there is a basis for it. I do not think there is an argument for it. Anybody who takes the time to really consider what has been offered here must recognize that the facts speak louder than political or ideological rhetoric. I am convinced that we should not only leave well enough alone, but that the problem is not evident. As my colleague just said a little earlier, it is not broken, so let us not try to fix it.

I look forward to questions from members of Parliament, but I want them to know one thing. I would stand up for any Canadian requested by any member of Parliament from any party. I am here to stand up for Canadians. This is not an ideological issue. The Conservatives should come to their senses.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Madam Speaker, on a point of order, the debate is on Bill C-5.

The question that was just asked and the answer that is coming forward are not relevant to the debate. I refer to Standing Order 11(2). I would ask that the Speaker make sure the debate is focused on the bill we are actually talking about.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am very pleased to rise today and speak to Bill C-5. I am following some very excellent speeches on the part of other members in the House from the Liberal Party, the Bloc and certainly my party, the NDP.

Bill C-5, keeping Canadians safe, is to amend the International Transfer of Offenders Act. This particular bill was introduced in the House on March 18, 2010, by the Minister of Public Safety. It is almost identical to Bill C-59, which received first reading during the second session of the 40th Parliament but died on the order paper when Parliament was prorogued on December 30, 2009.

We get to the point again of the Prime Minister's proroguing Parliament and having to reset the entire agenda, reintroduce all the bills and go through all the debates. Each time he prorogues the House, he sets back the Parliament in this country by a year or two in the process.

Bill C-5 amends the purpose of the International Transfer of Offenders Act as well as the factors for the minister's consideration in deciding whether to consent to an offender's transfer. This bill is all about transferring discretion. Under the old bill, there was a set procedure for bringing people back. It has worked well for 29 or 30 years in this country. As a matter of fact, not one person who has been repatriated has reoffended under the program. The government, for whatever reason, has decided it wants to transfer more power to the minister so the minister can decide who gets to come back.

Canada has been a party to treaties related to the transfer of offenders, as I said, since 1978. These agreements have been characterized as humanitarian in nature. They enable offenders to serve their sentences in their country of citizenship to alleviate undue hardship borne by offenders and their families and to facilitate their eventual reintegration into society, because at the end of their sentences, they will come out.

The argument that we and other parties have been presenting in the House over and over again is that, in the Canadian system, they will be subject to rehabilitation and programs. These programs are often not available in other jurisdictions. Most of the people being brought back under the program are in United States jails, and the United States does not have a very robust system for dealing with the rehabilitation programs and treating the prisoners.

The Transfer of Offenders Act came into force in 1978. It was modernized by the International Transfer of Offenders Act in 2004. The act enables offenders to serve their sentences in the country in which they are citizens or nationals. Generally speaking, the principle of dual criminality applies here, so that the transfer is not available unless the Canadian offender's conduct would have constituted a criminal offence in Canada as well.

A transfer can take place only with the consent of the offender, the foreign entity and Canada. It is the minister, currently defined as the Minister of Public Safety and Emergency Preparedness, who decides whether to consent to the transfer into Canada of a Canadian offender or the transfer out of Canada of a foreign offender, because it is a two-way street here. In making that decision, the minister is currently required to consider certain factors, such as whether a Canadian offender's return to Canada would constitute a threat to the security of Canada and whether that offender has social or family ties in Canada.

Once an offender is transferred, his or her sentence is administered in accordance with the laws of the receiving country. The Correctional Service of Canada notes in its international transfers annual report for 2006-07 that if offenders are not transferred, they may ultimately be deported to Canada at the end of their sentence without correctional supervision, which is very important, and without the benefits of programming.

I have a copy of that report. I want to take a moment to read the conclusion because there are many good elements to that report. It states:

An analysis of the information contained in this report doesn't only demonstrate that the purpose and principles of the International Transfer of Offenders Act have been fulfilled; it supports that the International Transfer of Offenders program is consistent with the Mandate of the Correctional Service of Canada (CSC) and it's Mission Statement in that the program contributes to public safety by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control. It ensures that offenders are gradually returned to society and that they have the opportunity to participate in programming that targets the factors that may have led to their offence.

The reference to public safety is there. The government seems to suggest that it has to make these amendments because somehow it would enhance public safety, ignoring the fact that the transferees who come from the foreign jails are not coming out on the street. They are going directly to jail. They are not going to be a danger to public safety in Canada, because they are not going to be walking the streets. They are going to be in jail presumably being subject to programming efforts and proper supervision. When they are let out, they will be supervised through that process as well.

On the other hand, if they come out of the American jail after a period of time with no proper programming, then they are essentially time bombs. They are going to be coming back to Canada and they are not going to be supervised. Then they could be a threat to public safety.

That is exactly what we are trying to prevent. The government is basically on the wrong track. As we see with many of the measures it takes, it is all about the headline. That is all it really cares about, as well as what is happening with the poll numbers. It is not concerned about what works and what does not work.

As I have indicated before, the media in this country should take their jobs seriously on this issue and become more critical of the government and start writing headlines a little different from the ones the Conservatives are getting, headlines that say, “Conservatives wrong on crime”, “Conservatives do what doesn't work again”. If the government started getting headlines like that, then perhaps it would retreat a bit and not be so eager to keep putting Parliament and the public through this whole exercise of what it has been doing.

As I have indicated on several occasions, there are smart lawyers on both sides of the House. There are particularly good lawyers on the Conservative side of the House as well. I do not know how they justify doing things like this.

Just so people who are watching know the total number of transfers, a total of 1,351 Canadian offenders were transferred to Canada between 1978 and 2007. Therefore we are not talking about huge numbers. Of these, 1,069 or 79% of them came from the United States.

The other countries from which most Canadians were repatriated were Mexico at 59 offenders or 4.4% of the transfers; the United Kingdom, at 33 offenders or 2.4% of the transfers; Peru at 31 offenders or 2.3% of the transfers; Trinidad and Tobago at 20 offenders or 1.5% of the transfers; Thailand at 17 offenders or 1.3% of the transfers; Venezuela at 17 offenders or 1.3% of the transfers; Cuba at 16 offenders or 1.2% of the transfers; and Costa Rica at 14 offenders or 1.0% of the transfers.

Fewer than 10 offenders were repatriated from any other country. I think a lot of people would perhaps not be surprised with those figures, but in a way might be because I would think that a number of people would be thinking that people were being transferred from places like Turkey, and of course that does not seem to be the case.

The number of offenders transferred to Canada in the fiscal year has ranged from a low of seven in 1980-81 to a high of 98 in 2003-04. In 2006-07, 53 offenders were transferred to Canada, which was the lowest annual total since 1994-95, when 40 offenders were transferred. In the last 10 years for which statistics are available, 1997-98 to 2006-07, 768 offenders were transferred to Canada for a yearly average of 77.

So, we are not talking about a tremendous number here. These are reasonably small numbers, over a 30-year period. Of those 768 offenders, 313, 40% of them, were transferred to the Ontario region; 207, or 27%, transferred to the Pacific region; 200, or 26%, transferred to the Quebec region; 33 people, or 4.3%, transferred to the Prairies; and 15 people, or 2%, were transferred to the Atlantic region.

In terms of transfers from Canada, a total of 124 offenders were transferred out of Canada between 1978-2007. Of these, 106 offenders, 85% of them, were transferred to the United States. No matter which way we look at it, the transfers back and forth are overwhelmingly between Canada and the United States. Very small numbers exist on either side for countries other than the United States. Eight offenders, or 6.5%, were transferred to the Netherlands; three people were transferred to the United Kingdom; two were transferred to France; and one was transferred to each of the following countries: Estonia, Ireland, Israel, Italy and Poland. And 90 of the 124 transfers took place between 1978 and 1983.

Since then, transfers from Canada have generally taken place at a rate of one or two offenders per year; although there were three transfers in 1990-91, all to the United States, and four in 2006-07, one each to Estonia, France, Israel and Italy.

Now, in terms of the applications and denials, which is the reason behind the government bringing in this legislation in the first place because it had one or two cases where it was not happy with the results, in the last five fiscal years for which statistics are available, the international transfers unit of Corrections Canada received 1,314 applications for transfer. Of those, only 27%, 367, have resulted in a transfer, while 519, or 39%, were denied, and some applications are still being processed.

In one of the press releases that the government sent out, it brags about the fact that its number of approvals has been slashed. It is taking the small numbers of people who are involved in the transfer program, in the first place, and essentially cutting them down drastically. I have the statistics here. That is what the end result of this exercise will be.

When the minister wants and gets more discretion, the end result of that process will be that less people will be involved in the transfer and more people will be staying in the prisons in countries outside Canada, fulfilling their full sentence. Then they will be coming back to Canada without any kind of treatment or any kind of programs that would make them better candidates for integration and, I guess, less of a risk to public safety. When they come back from the United States with no training and no programs, they are not going to be supervised here, and then they are going to be a threat. They are going to be a public safety risk.

We are going to have the opposite effect of what the government actually wants. This is absolutely crazy. We want to have a system that shows results. We want to adopt practises that actually work.

I do not know how many times we have spoken in this House about how the American system, during Ronald Reagan's years, during the “three strikes and you're out” and the minimum sentences, produced a huge construction boom in the United States for prisons, many of which became private prisons so private entrepreneurs could make money. These prisons basically warehouse a huge number of prisoners. Guess what? The crime rate did not go down but instead went up. The U.S. economy is in such bad shape right now that the California governor is just letting people out of prison without having taken any programs, which will basically allow the prisoners to reoffend again.

The Conservative government obviously does not have any common sense. Why would it adopt a system that is 25 years old and has a bad track record? I do not know why the government would not canvass the world, find programs that actually work regardless of the country, send teams of people to study the program, and implement that program here. That is the sensible way to do it, but the Conservative government does not do things like that. The government picks programs that do not work.

In Manitoba we enforced the immobilizer program on insurance companies and provided it free to drivers. This program has cut the auto theft rate by 40% in about a year. We beefed up the crime prevention unit to concentrate on the 50 people who were stealing most of the cars. This program actually works and other jurisdictions are looking at copying what is being done there.

That is the kind of approach that the government should be taking toward criminal justice in this country, or any other program in this country. The Conservatives are ideologically bound to their American Republican cousins. They have taken the attitude that if it did not work in the United States then let us not make it work here. That seems to be their approach.

I do not know how we can get through to Conservative members. We are sitting in a minority government. With friends like Rahim Jaffer and others, the Conservatives will have a minority government forever. A majority government will probably never happen.

In their own minds, the Conservatives seem to think that they have a majority government. They keep pretending they have a majority government. They bring in bills that have no chance of making it through the House. We have to question why they would keep doing this. Then they prorogue the House and start over again. The public must be shaking their heads. I have asked people about this and some have come to the conclusion that the Conservatives are not actually tough on crime but are actually soft on crime.

There is a real lack of credibility and a real disconnect with the Conservative government and some of the legislative efforts that it makes. The programs in the system do not actually work.

I have become sidetracked once again. I have pages and pages of notes. I could probably speak for another hour on this subject, but I understand that my time is running out. Perhaps when members ask me questions I could make some more comments on some of the sections I missed in my speech. Having said that, I want to yield the floor to people who want to ask questions.