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.

Keeping Canadians Safe (International Transfer of Offenders) Act

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am pleased to join colleagues in debating Bill C-5, which is an amendment to the statute that governs the transfers of Canadian offenders outside Canada back into Canada and offenders in Canada who are not Canadian would be patriated to their own countries.

I debate this because I see some material difficulties with the in bill the way it is written. I do not want to prejudge the vote of the House, but should it go to committee for study, it is my hope that the remarks in the House will better inform the committee review of the bill.

There are three areas I want to address. The first is about the title of the bill. The second is about the degree to which the House may expand the ambit of discretion in the hands of, not the Governor-in-Council or not a tribunal, but one minister. The third is about charter compliance in relation to what is in the bill.

The first thing is the title. It is an act the amend the International Transfer of Offenders Act, but the government, for whatever purpose, has seen fit, in clause 1, to write the following, “This Act may be cited as the Keeping Canadians Safe (International Transfer of Offenders) Act”. I do not quite understand why the government would name it that. It could have named the bill, “making Canadians happy act”, or “making Canadians more contented”, or “making Canadians feel a little bit better”, or maybe “making Canadians like the Conservative Party of Canada a little better”.

If the title of the bill is to become an open-ended billboard for political rhetoric and advertising, then I think the House should put a stop to it. I have never seen this nonsense before.

If anybody is to put an end to it, it has to be the members in the House. I am pretty sure the Department of Justice did not decide to put a neon sign, billboard piece of advertising rhetoric in the title to a bill. It is actually bordering on the absurd. I have thought about it. This is a bit like the Orwellian Animal Farm thing that we could read about in fiction some years ago. If the government keeps repeating these little mantras, maybe people will start to believe it.

The first thing I think the House should do is strike the title of the bill, but our procedures do not allow us to do that at second reading. However, I would love to see a motion to do that, to at least strike out the political rhetoric and advertising in the title. I hope the committee, if it goes to committee, will strike this part of the title and state very firmly in a separate report that this type of playing, abusing, distorting, adulterating the clause 1 of a bill by throwing in a little political throwaway line is unacceptable to the House and it distorts our legislative practices here.

This is not the first bill where I have seen this, but it is the first bill where I have had a chance to get up and, in a material way, address it. It is unacceptable. Hopefully, if the bill comes back, we will not see this nonsense. The House should not be drawn into these silly, Orwellian, Animal Farm, political mantra insertions in our statutes.

Of course once we write it, it could be there forever. There it is, in all of our bills, “the making Canadians happy bill”, “the making Canadians content bill”, “the oh what a wonderful world it is bill”, “the do not forget to vote for us in the next-election bill”. This is silly, dumb, distorted, political thinking. It certainly is not part of the legislative arts. I really hope the committee that studies the bill will look at that.

Let us move on to something a little more substantial, and it is the issue of discretion.

A number of members have spoken about it and it is clear, on the face of it, that one of the purposes of the bill is to broaden the discretion of the minister in making decisions on offender transfers. Most of the changes take place with reference to Canadian offenders abroad who have applied to be repatriated to Canada. However, clause 3 of the bill applies to offenders in Canada being removed, on their own application, from Canada. There is an expansion even there because currently the wording is that the minister “must” take certain things into consideration. The wording being proposed here is the minister “may” take into consideration a certain number of considerations. That is just on the circumstance of offenders who are not Canadian, who are in Canada and as part of an application process involving their country have applied to be removed from Canada to serve the balance of their sentence in their country of origin or citizenship.

Let us go back to the issue of discretion in relation to Canadians abroad. As I look at the bill, it is pretty clear that the discretion made available by the House, because we are legislating this, to the minister, from a “must”, as in, “the minister must take a look at this consideration”, is moved to the word “may”, as in, “the minister may”. That means the minister does not have to take into consideration the items that are preceded by the word “may”.

In addition, we have the insertion of the words “in the minister's opinion”, which basically says that what really matters is the minister's opinion, one person's opinion on that consideration.

At the beginning, the bill refers to the goal of enhancing public safety. Nobody could object to that, but it is also a fact that the Sentencing Act, the Corrections and Conditional Release Act and the Criminal Code all refer to and incorporate public safety as either the number one or a leading public policy objective in all of this. How could it be otherwise?

Having mentioned the word “may” and the insertion of “the minister's opinion”, we also have at the end, subsection (l), unbelievably having listed 11 separate factors and a number of sub-factors. These are considerations that the minister may take into consideration and, in relation to which, it is the minister's opinion that governs. Having listed all of those carefully, itemized with precision, the government now inserts a clause that says, “Any other factor that the Minister considers relevant”. Why do we not just drop all of the considerations and insert subsection (l) so the minister can simply, on his or her own opinion, “Any other factor that the Minister considers relevant”.

What a total, unmitigated abandonment of rule of law is this? If we pass this, why bother giving the minister a list of considerations and matters to take into consideration if at the end of it all we can simply say “any other factor that the minister considers relevant?” It is not whether it is relevant or not, it is whether the minister considers it to be relevant. Therefore, should there ever be case of someone, God forbid, second-guessing the decision of the minister, and we would never want to do that around here but maybe in other places people might, the minister can simply respond by saying that it is none of our business because the statute says that he or she can take into consideration any other factor that he or she considers relevant, for example, if a person has bad eyesight, or good eyesight, or is too tall the prison beds.

We will not bring back a seven-footer because we will have to build a special bed for him. Is that a relevant consideration? It is only in the mind of the minister that it matters. If the minister thinks that is a factor the minister considers relevant, then it counts. That is what we have been asked to pass and legislate. This is wrong. This is a default. This is an abandonment by the House of the issues that we consider relevant because we have already created the main list.

There are other considerations. Paragraph (g) states, “The offender's health”. What does that mean? The minister may take into consideration the offender's health. Does that mean good health or poor health or some aspect of health? Will the minister look at the person's DNA? A lot of DNA is being recorded and profiled now. It is recorded for all serious offenders in our country and in many other jurisdictions around the world. The DNA of the offender is taken and DNA profiles are fully capable, under proper analysis, of revealing health traits and propensities to certain bad health. Do we want the minister to have the total discretion to take into account that offender's health? In this case, we are talking about a Canadian offender who is outside Canada who has applied to come back and serve the balance of a sentence here in Canada.

There should be some parameters put on this. However, if the House were to go ahead and adopt the whole list, including item (l), any other factor the minister considers relevant, it really does not matter then. The minister can take into consideration the health, whether the offender has or does not have hair, height, weight, where he or she was born, and any other factor the minister thinks is relevant.

I hope in the end that these items will be dropped from the bill. I am pleading with colleagues in the House and the committee to seriously consider dropping some of these provisions or circumscribing them. However, at the very least, if Parliament does turn over to the minister additional discretion, whether it includes these things or not, I hope there can be a provision inserted in the bill that requires the minister to put these considerations in writing and to make them available to the offender whose application is being dealt with. It seems to be fair that these considerations, if relied on by the minister, are put in writing. Let us keep this in mind. There is no built-in review. It looks like the minister's say on this is final.

I mentioned the offender's health. Subparagraph (i) deals with whether the offender has accepted responsibility for the offence for which he or she was incarcerated. In the normal course, that sounds reasonable, but what about the case of offenders who say that they were never guilty and that it was a false conviction? Do we think there were ever any false convictions out there? In fact, we know there have been too many, which we all feel badly about. The ones we hear about are the convictions dealing with homicides. In those cases, the offenders are normally incarcerated for much longer sentences, for 10 to 20 years or life sentences. In those cases, when the offender, who has been improperly convicted, finally gets a chance to prove it and get exonerated, those are high profile cases because the offender has usually served quite a few years.

I do not have to list of those cases. However, those who have been exonerated should be able to go on with their lives without being mentioned in the parliamentary record.

What about all the other cases of people who have been falsely convicted of lesser offences where the sentences have been two, three, four or five years and they have been incarcerated in a foreign jurisdiction, even though they were plainly the wrong people? This section seems to be saying that in order for the minister to bring the person back, the person needs to have accepted responsibility for the offence for which he or she were convicted, including acknowledging the harm done to the victims and the community. How does that section deal with the matter of a false conviction? It does not and it should.

I will stop my review of the individual sections, but there is one more item I want to mention. Subparagraph (d) states:

whether, in the Minister’s opinion, the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;

That is not a new provision, but the part that makes it “in the Minister's opinion” involves the extension of discretion, which I am concerned about. The reason that it is important in this case is that if there is a Canadian abroad, he or she has, under our charter, the right to return to Canada.

I am concerned here, legally, about this House legislating a ministerial opinion that would or could obstruct a charter right of a Canadian offender abroad to come back to Canada. This has charter implications and constitutional legality implications. I do not know whether that was noted.

I will now deal with the charter issue. In my view, these provisions are much too vague. They impose a degree of arbitrariness. Under our Constitution, we are not supposed to be subject to arbitrary measures. We have legal rights to life, liberty and the security of the person. We have the right not to be arbitrarily detained or imprisoned, which is applicable here depending on what is meant by imprisoned or detained. If we have the right under our charter not to be arbitrarily imprisoned or detained, which is specifically mentioned in the charter, then we do not have the right to write a statute that takes away the right not to be arbitrarily detained.

The allowance of the minister of these arbitrary discretionary rules removes that charter right. I would love to see the Department of Justice opinion that says that this provision and all these provisions are charter compliant.

The real issue here is whether Parliament will abandon the set of rules that we have had established for many years for offenders in favour of virtually a totally arbitrary decision in the hands of one minister of the government of the day, and not just of an apparent and alleged charter problem but real, material and incipient charter issues on the face of it.

The House resumed from April 21 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 committee.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Madam Speaker, I am pleased to speak to Bill C-5, An Act to amend the International Transfer of Offenders Act, which is a carbon copy of Bill C-599 introduced on November 26, 2009. This bill 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 may consider in deciding whether to consent to the transfer of a Canadian offender held abroad.

Let me preface my remarks by saying that we can learn a lot by listening to our colleagues in the House. I listened carefully to the Liberal member who spoke previously. He said that this bill would be studied in committee. What does that mean for the Quebeckers and Canadians who are watching? It means that the Liberal Party will vote in favour of the bill, but will want to improve or amend it in committee.

That is not what the Bloc Québécois is going to do. We have to stop being afraid of the Conservatives' right-wing philosophy. The Liberals are afraid. They wonder what the public will think. A bad bill is a bad bill.

The problem with the Conservatives is that the only place where they see an opportunity to make political gains is on law and order issues. They are trying to make sweeping law and order changes, even though those changes make no sense. Quebeckers have always held onto certain values, and we expect Canadian nationals who commit a crime abroad to be judged according to our values. If not, we expect the country where they are charged to honour our policies and our values. Otherwise, we will return our nationals home.

There are international agreements about offender transfers. This bill is designed to give discretionary power to a Conservative minister. The Bloc Québécois will always be against giving right wingers the power to decide whether or not to return Quebeckers and Canadians home, no matter what they may have done. Depending on the country, charges are laid. I will give some examples. In some cases charges are laid, but six or seven years later, they still have not been processed.

Bill C-5 is designed to give the minister more discretionary power when he decides to transfer a Canadian who is serving a sentence abroad.

Instead of having to take into consideration the offender’s health or, worse, the fact that the foreign prison system presents a serious threat to the offender’s security or human rights, the minister would now be allowed to consider any factors he likes, without being obliged to consider them all. We can see the right-wing philosophy. The government will repatriate Canadians when it suits it to do so, but leave them to their fate when it does not.

But human rights are, by their very nature, non-negotiable. Parliament cannot allow a minister to overlook potential human rights abuses. Every human being, even the most despicable criminal, has fundamental rights.

The Conservative ideologues want to use this bill to give themselves the option of evaluating the fundamental rights of Quebeckers and Canadians on a case-by-case basis, although the courts have consistently ruled against this and have called the Conservatives on it many times. Mr. Smith and Mr. Arar are just two devastating examples.

Knowing the Conservatives' dogmatism, particularly on this issue, it would be irresponsible of us to give them more room to manoeuvre when it comes to negotiating the basic rights of Quebeckers and Canadians, especially those being held in a country that believes that incarceration and mistreatment, such as torture, are the only solutions to crime.

The Conservative government has not provided any factual reasons for amending the legislation. What is worse, the minister has acknowledged that much of what is in the bill is already covered in the act, but says that Bill C-5 spells it out. He also added that he has cases in mind that he does not want to discuss, and these cases would justify the amendments.

Again, we see this right-wing philosophy whereby they are right and everyone else around them is wrong. Our fear is that the government has a hidden agenda.

Why would we trust people who see and present themselves as white knights, but are anything but? Just look at the case of Rahim Jaffer driving dangerously while impaired and in possession of cocaine—he once campaigned for drug free schools—or the violation of the Access to Information Act where criminal offences have probably been committed, or the matter involving the former Conservative minister who just left cabinet, or Mr. Blackburn, who fancies himself above the law, or the Afghan detainee abuse situation.

When we see their attitude toward the court challenges program or the Khadr case, they are anything but sincere. It is highly likely that the Conservatives see this as a way of imposing heavy sentences abroad rather than having to deal with parole and rehabilitation here. That is the crux of the problem.

The Conservatives would like to impose a right-wing philosophy on Canadians and Quebeckers. These are not the values that were passed down by our ancestors. The Conservatives were elected and they represent a certain segment of the population, but, again, the entire population is represented in the House and they have to accept that.

I say that in all politeness to my opposition colleagues. The NDP knows the score, but the Liberals have to stop being afraid of the Conservatives. We, in Quebec, showed them a long time ago what we were made of. The Conservatives have not bothered us in Quebec in ages. People have to stand up to them, not let themselves be run over. Only then will they realize that this American style, right-wing philosophy is not what our ancestors wanted for us. It is not the type of society I want to pass on to my children and my grandchildren.

I will always fight against extremists who, for purely political reasons, decide to manipulate things and change the law. Often, the government takes a piecemeal approach. When something terrible is sensationalized by the media, it decides to change the law. When it comes to law and order there needs to be balance. The beauty of law is in its balance.

We have seen how the Conservatives have attempted to introduce all manner of bills to shift the balance established by our ancestors. It is terrible to see the damage this can do in right-wing societies. The Americans chose the conservative route. We all recall the Republican era: incarceration was the rule, people were sent to jail. A few months ago, the American president had to release 20,000 inmates. He said that because of their lesser sentences, they should not be incarcerated and had to release them because of overcrowding in prisons. That is difficult to grasp. The Conservatives support incarceration but they would like all citizens to carry a gun. It is rather difficult to understand. They want to abolish the gun registry. They would like everyone to be able to defend themselves. They would like to play cowboys and Indians. That is how the Conservatives react.

Once again, that is not the society that the ancestors of Quebeckers and Canadians left them. That is not the type of society that we are used to. It is the Conservatives who want to change that. As I was saying, the Americans are changing course. They tried it and the crime rate did not go down. The prison population has risen and they do not have the money to look after, let alone rehabilitate these people.

The balance I was speaking of earlier is not achieved by simply incarcerating people. We must also be able to rehabilitate them. We have to allow citizens who have committed lesser crimes, who can be reformed, to be rehabilitated. We have to invest the necessary resources and not just use these people or punish them by incarcerating them.

We know that prisons are where people go to learn how to become criminals. First the Conservatives tried everything they could to send children under 18 to adult prisons. That was a terrible initiative. We must rehabilitate criminals, especially young ones. The younger they are, the easier it is to instill new values. This is what we should be doing, which is why a balance must be struck between repression and rehabilitation. That is what the Bloc Québécois has always advocated in all areas.

The Bloc Québécois has been the toughest party in the fight against organized crime. It was the Bloc Québécois that introduced a bill to reverse the burden of proof in connection with the proceeds of crime. Now criminal groups have to prove where their money came from. Previously, the burden of proof was on the government, and it was much more difficult. This measure allowed Quebec to mount Opération printemps 2001, which targeted organized crime, starting with the Hells Angels.

That is one way of going about it. We need to be tough at the right time, and not simply for the sake of being tough or because we want to jump on any kind of media bandwagon. Indeed, we often realize a few weeks or months later that the situation was not as serious as we thought and that it was blown out of proportion.

Acting on impulse is always a bad idea, even in our lives. We must take a balanced approach, even in our own lives, and never go on instinct alone. Acting on instinct or impulse can be costly to consumers and that applies to everything. That is why it is important to always be wary of the Conservative philosophy. As we know, instead of having to take into account established factors, the minister will now be able to consider whatever factors he chooses.

We talked about health and how offenders are treated. That is one philosophy. Torture is not allowed in Canada. We cannot allow a government, even a Conservative government, and a minority one at that, to outsource torture.

Serious accusations are being made because the government refuses to give the House all of the documents related to the Afghan prisoners. There are suspicions that torture was outsourced to Afghan authorities. That is the worst of them. I have a hard time understanding why the Conservatives refuse to release these documents. We need to be able to tell the public that we defend our society's values throughout the world.

That is not what Bill C-5 does. The minister is being allowed to choose why he will or will not bring an offender back to Canada. If it is left up to the minister, he could decide to leave an offender or Canadian citizen for a longer period in a country where torture is used, in order to get something from him. That is not right.

We cannot play with human rights and with the values our society believes in. These values are there in good times and in bad, and that is always what we strive for.

As I said at the beginning of my speech, this is a bad bill. Giving a Conservative minister the powers and the discretion allowed for in this bill is a bad decision.

The Bloc Québécois will oppose this bill and will not send it to committee as the Liberals are doing. Obviously, if the Liberals vote with the Conservatives, this bill will go to committee, but we will do everything we can to ensure that it does not pass. The minister was not able to convince us of the merits of this bill, other than the fact that it gives him the discretionary power to choose why or why not to bring an offender back to Canada, and gives him more latitude and flexibility. He must have some cases in mind, but he does not want to share them. This kind of Conservative, right-wing, extremist behaviour is very disappointing.

I am very surprised to see that my colleague, the member for Pontiac, now espouses right-wing values. I knew him in his previous life in municipal politics. I always thought of him as a balanced and conciliatory person, but he seems to have taken on some bad habits since joining the Conservatives. He was a Liberal in Quebec, but now he is defending American-style right-wing conservative philosophy tooth and nail. President Obama had to let 20,000 people out of prison because there was not enough money to look after them, let alone rehabilitate them. The member for Pontiac and his government want to invest more money in prisons and put more people in jail. Those are not the values our ancestors passed on to us, nor are they the values I want to pass on to my children and grandchildren.

Once again, I chose the right party: the Bloc Québécois. Bloc members will always stand up for human rights and the values we cherish. Those values should protect our citizens no matter where they are in the world. We will certainly not give a Conservative minister the power to make decisions for purely political reasons. They seem to think it is a good idea right now. They are impulsive. They see what is going on in the media, so they introduce a bill to fix the problem. They hope to win a few more votes. But the Conservatives will not win more votes in Quebec, and they know it.

We will never support Bill C-5. If the Liberals support it and it goes to committee, Bloc members of the committee will do their utmost to make members of every political party understand that this is a bad bill. Giving a discretionary power to a right-wing Conservative minister is not a good idea. Sometimes they have good ideas that we can support, but this is a bad one.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Madam Speaker, I am pleased to speak to Bill C-5. As we know, this is not the first time the House has seen the bill. As it has with much of its legislation on crime, the government has accused the opposition of stalling when its measures are not adopted immediately. However in the end, it is the Conservatives, the Conservative Party, the Conservative Prime Minister, the Conservative Minister of Justice and, in this case, the Minister of Public Safety who terminate their own bills and then reintroduce them with an apparent urgency that they have contradicted. Can you say prorogation, Madam Speaker?

If the House is to properly examine Bill C-5, we ought to be talking about the purposes of, and any existing problems with, the international transfer program as it exists. In other words, in broken English, if it ain't broke, why fix it? If the House is to amend the act, we must do so with an understanding of the objectives of the transfer program. I certainly want to make it clear from the outset that we on this side are recommending that we send the bill to committee and that some things can be done to the bill at committee to improve it.

As the current International Transfer of Offenders Act reads:

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

The House is well aware that the purpose of this program is to facilitate the administration of justice and the rehabilitation of offenders.

Correctional Service Canada clearly puts forward the reasons that brought Canada to adopt the international transfer of offenders, as follows:

If offenders are not transferred, they may ultimately be deported to Canada at the end of their sentence, without correctional supervision/jurisdiction and without the benefit of programing.

Whatever amendments we make to the bill, this has to be the overall objective with respect to public safety and reintegration.

It seems to be a flaw in the whole Conservative justice agenda to pretend that no one ever gets out of prison. Well, people do serve their sentences and they get out of prison. They get out of detention facilities. They get out of federal prisons. Many people get out of prison. In fact the overwhelming majority, up to 90% of people, are back on the streets, and what have we done with those people in terms of rehabilitation?

It may be a generalization to say, but I am guessing people serving 10-year sentences in a correctional facility in Texas probably do not get the amount of rehabilitative programing that they do at Dorchester Penitentiary in the county of Westmorland in the province of New Brunswick. I do not have the evidence on that. I am standing on a limb with a wild guess on that, but that is why we have committees and that is why we have the test of evidence at committees, which helps us mould a bill.

Not only does the possibility exist that we may have no idea of a citizen's criminal record in a foreign country, but the act as it stands serves a clear rehabilitative purpose. In other words, people who serve their entire sentence in a foreign jurisdiction are deported at the end of that sentence back to Canada, often and in many cases by administrative fact, without a permanent transfer of the record of what that person has done. So if a person is a dangerous offender and for some reason serves his or her sentence in an American or other jail, he or she could be brought back to Canada without public safety authorities knowing that there is a dangerous offender candidate in the community. That cannot be in the interests of public safety.

Every day, some 2,000 Canadian citizens are incarcerated somewhere in the world. According to the Correctional Service of Canada, authorities here may never hear about it even if the offender has a criminal record, because there is no record of the sentence in Canada. There can be no doubt that Canadians serving prison sentences abroad face serious difficulties. According to the Correctional Service of Canada:

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.

The Canadian consular personnel in foreign countries provide all the assistance to the incarcerated that they can, but it cannot be a substitute for serving time in Canadian institutions, especially when these people are going to be back on the streets of Canada. The act, as it exists, is well warranted in its intentions and the services it provides in ensuring appropriate justice is afforded to Canadian offenders.

To summarize, the purpose of these agreements is humanitarian in enabling offenders to serve their sentences in their country of citizenship, to alleviate undue hardships borne by offenders and their families and, I would suggest, to marry the objectives that my friend from Edmonton—St. Albert indicated. That is, the dual concerns of humanitarianism and public safety.

The existing act takes into consideration the fact of their eventual reintegration into society. Under the existing formula, once transferred, the offender's sentence is administered in accordance with the laws of Canada, in this case. Quite simply, transfers enable offenders the opportunity of becoming productive members of society, particularly through managing justice and rehabilitation of the offender.

Bill C-5 seems to go against many of the principles that shaped the international transfer of offenders program. The Conservatives have attacked the fact that individuals, Canadian citizens, are being transferred from foreign countries to Canadian prisons to serve out their sentences. The government has, however, approved many of those transfers. While it purports to support strong and effective justice legislation, it enables potentially dangerous consequences through this bill. It is important to underline that the minister and the government, for four years, have used the existing legislation to allow people to serve out their sentences in Canada, when the act already contains a ministerial discretion.

The International Transfer of Offenders Act does not permit a program out of some sense of feeling sorry for the offenders. We ought not to think that everyone on this side is more concerned about the offenders than public safety. In fact the theme of the speeches I am hearing on this side is all about public safety married with the concern for humanitarian and Charter of Rights protections.

If an individual commits a crime in a foreign country, is tried, convicted and ultimately imprisoned, that citizen cannot be guaranteed our sense of Canadian justice, which includes restorative justice and rehabilitation. These are central to the concept of our Criminal Code.

I have often said and I will say again that a Canadian Conservative created the Criminal Code, Sir John Thompson. It is one of the best accomplishments of a Conservative politician in Canadian history, so let us not say I am unfair and overly partisan. I am complimenting a Conservative justice minister and prime minister.

In section 718, there is laid out our principles of sentencing. If we listen to the Conservative news network, we might think that the only consideration for sentencing ought to be punishment, deterrence and locking people away, but that is not our system. That is not what we all believe in. We believe in many principles of sentencing as set out, which in section 718, briefly, are to denounce the conduct, to deter the offender and people generally from doing the same thing, to separate offenders from society, to assist in rehabilitation, to provide reparations and restitution for those wronged and to promote a sense of responsibility in offenders.

That says it all. That is our system of justice. The question is: Does this new act strike a balance, or does it go more to the side of making sure people are far away from society and not a threat to public safety until they are not? Then, coming from some crazed asylum known as the American correction facility of the day, they are let out on the streets in Canada, because I have heard nothing from the other side that they will invoke the Galloway measure, that they will say that an offender, having served his or her time in an American prison, will be barred entry to Canada from, say, the United States.

I do not think the United States would accept that. It would want to deport criminals who have served their time. Make no mistake, these offenders are going to be on our streets at the end of their sentences, whether they serve them here or there. The real question is: Should they serve those sentences, in the best cases possible, and in the majority of cases they are transferred, in a Canadian facility or an American one or a foreign one?

I am dwelling on American facilities because the statistics are fairly clear that an overwhelming number of Canadian citizens serving sentences abroad are in American prisons.

When the individual is released, which will happen, he or she will be deported back to Canada without the effect of our rehabilitative programs.

The degree to which offenders may require help is extensive. Currently one in ten individuals imprisoned is suffering from mental illness. We only have to read the comments of Senator Michael Kirby in the newspapers today to know how important it is on a non-partisan level and something which should unite all Canadian elected and non-elected officials, and how important and grave mental illness challenges are in Canada. This number, one in ten individuals in prison suffering from mental illness, only goes up among female offenders, and the plausibility that citizens imprisoned overseas will not receive appropriate help is real.

I was very involved in wanting to have a resolution to the tragic consequences of Ashley Smith's death. She was from Moncton. She was not treated appropriately by our correction system. I am hoping that the public safety minister will take the recommendations of Howard Sapers and others, including Bernard Richard in the province of New Brunswick, and better our system with respect to incarcerated females, incarcerated youth and those incarcerated who have mental health issues.

As it stands, Canada is party to treaties that allow offenders to serve their sentences in their country of citizenship. The Minister of Public Safety currently decides whether a transfer into Canada of a Canadian citizen or out of Canada of a foreign offender is allowed. The minister already has some discretion.

However, this bill proposes to modify the International Transfer of Offenders Act by changing the words “the minister shall” to “the minister may”. On top of this, it also adds new factors that the minister may take into account.

These are certainly questions that will be launched at the minister, officials of the public safety department and other witnesses at the committee, which is why this bill must go to committee to be studied.

We want to know what these other reasons might be. A law which has wide discretion that does not define the parameters of that discretion is a dangerous law. I would think that would be a very salient factor to consider for us as lawmakers who may be passing, if we pass this part with the open-ended discretion, a law that knows no bounds. It is against our parliamentary tradition.

These amendments are greatly concerning. Considering that this bill will see the transformation of a rules-bound structure into a flexible and absolutely discretionary ministerial duty, this is hardly an improvement on the existing program.

The most recent statistics from Corrections Canada, as has been revealed in previous debates, reveal that there were only 53 transfers to Canada in 2006-07. As far as is known, there are no considerable problems with the application of the program which was amended in 2004.

It does beg the question, and I think in the presentation of the government there might have been an exposition of the problems, what were the problems with those 53 transfers to Canada between 2006-07? Were those people threats to public safety?

From the government's bringing these amendments to this protocol, it is inferred by us that the terrorist protection provisions do work. There were exclusions of those who were incarcerated and who were let out from foreign institutions from Canada based on those reasons, and that is working.

Somehow the public safety issue had not been taken into account. There are 53 cases. Of the 53 cases there must have been something in the government's mind in passing this. There must have been instances where people who were allowed to serve their sentence in Canada should not have been allowed to. They presumably would have served the sentence elsewhere and come back to Canada anyway, so are they not still a public safety risk? It is a question that must be asked at committee.

As it stands, applications for an offender's return to Canada can be refused for a number of reasons. This is the existing regime.

In the past, if the offender left Canada with the intention of abandoning the country, for example, somebody like Conrad Black who actually gave up his citizenship, that was clear evidence he was abandoning the country as his place of residence and in this case citizenship. One reason would be if the offender's return to Canada would constitute a threat to the security of Canada, or if the offender has no social or family ties in Canada or is linked to terrorist organizations.

The Minister of Public Safety is also required to consider whether the conditions of incarceration pose a serious threat to the offender's safety or human rights. As such, the transfer acts as a means to enhance basic human rights.

Bill C-5, however, would amend the existing legislation so that the minister is not necessarily bound by those fairly sensible criteria. The bill would add a list of factors that empower the minister to use his or her complete discretion as to whether to consider the current and binding standards in the protocol.

Bill C-5 would now see new factors, and they have been canvassed in previous speeches, about whether the offender has sufficiently accepted responsibility for the crime.

Well, the offender is serving the time. I guess what is wanted is a guilty plea from the incarcerated person after the person has been found guilty. I wonder what the importance of that is other than to get satisfaction that a person who has already served his or her time will have to enunciate that he or she did the crime. Maybe there is a question about the foreign systems of law, but we take it in our system that if the person has served the time for the crime, the person probably did the crime. At least in law we find that is the case.

The other factor that is new is the minister is left to determine whether in his or her opinion the offender has co-operated with foreign authorities.

In some cases, the foreign authorities, which is the whole purpose of this legislation in the first place, might not be easy to co-operate with. There might be foreign countries which we do not co-operate with fairly well. Increasingly, the government seems to have a problem with a number of countries and it would seem odd that should be a factor in letting someone back.

Finally, we can see that under the proposed changes there is that basket of “any other factor”. Clearly, at committee that has to be tightened up.

If we look at those reasons, they do not all point to enhanced public safety, as one of the previous speakers, in fact the member for Edmonton—St. Albert, suggested. We are looking for sensibility in this bill. I hope that it will be explained at committee exactly how this would enhance public safety.

What is greatly concerning is that in some jurisdictions there are cases of innocent Canadians accused and convicted who would now have to renounce their innocent or not guilty plea and accept responsibility for an act they did not commit to avoid incarceration in a foreign prison.

I would for once say something very positive about the American justice system. It is similar to ours. It may be even more protective of an accused's rights in that if a person is found guilty in the United States, barring all the John Grisham novels, the person is probably guilty. However, in many jurisdictions there are innocent people who have been convicted.

The person would have to renounce that plea to get back into the country to serve the sentence.

Does this House feel that Canadian citizens should have the right and the opportunity to be transferred if their conviction and imprisonment should result in harsh imprisonment?

Think of the family members who have a son or a daughter who committed a crime in a country where its conditions of imprisonment are very different from ours.

In closing, it would seem to me that this bill is eminently ripe to be sent to committee. Questions that should be asked are: What exactly is going on here? Why is it that the system is not working? Is it that bad? How does it enhance public safety to send back to Canada criminals who have served their time in a foreign jail, with no treatment and are now on our streets?

We support sending this bill to committee. I am looking forward to any questions there may be.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Madam Speaker, it is an honour to rise in this House today to speak in favour of Bill C-5, An Act to amend the International Transfer of Offenders Act.

This legislation would further strengthen our government's track record of keeping our streets and communities safe for everyone and to ensure that those who do commit crimes are held responsible for their actions.

Since coming into office in 2006, our government has made the safety and security of Canadians one of its top priorities. That is why we have pushed forward with a series of measures to get tough on crime, especially violent gun crime. For example, members will recall that in the last session of this Parliament any killing linked to organized crime would automatically lead to a charge for first-degree murder.

To further combat the reach of organized crime, this government has also introduced legislation that imposes mandatory jail time for those involved in serious drug offences. In addition, we have passed laws that address drive-by shootings and other intentional shootings that brazenly disregard both our laws and the right of all Canadians to their safety.

We have passed legislation that gives added protection to the police and peace officers who put their lives on the line every day that they go to work. I would like to pay tribute to the members of the Canadian Police Association who have been visiting us on Parliament Hill the last few days.

Offenders have always done their best to go undetected and the rapid pace of technological change has made this easier than ever. Hidden in the dark alleys of the information highway, offenders are attempting, and often succeeding, at stealing the very identity of their fellow Canadians.

I am proud to remind all members of the House that this government has passed tough new laws that help the police and the courts fight the scourge of identity theft.

However, the wheels of justice often turn more slowly than we would like. As a result, there may be considerable time spent by an individual in pre-sentence custody. I am very proud that the government has passed laws that limit the amount of credit offenders will receive while in pre-sentence custody. In this way, the guilty will serve a sentence that truly reflects the severity of their crimes.

These are but a few examples of the government's efforts and accomplishments to keep our communities safer, to ensure that offenders receive appropriate sentences and to ensure that the rights of victims are heard and respected.

However, as the Speech from the Throne notes, our work is far from over, and I am pleased that this government has already taking further action.

Members will recall that the Minister of Public Safety recently reintroduced legislation to strengthen the national sex offender registry. This measure would provide additional protection for our children from abuse and exploitation.

With that background, I am pleased that our Conservative government has reintroduced amendments that would strengthen the International Transfer of Offenders Act.

As members will recall, and as the last speaker correctly identified, Canada has been a party to international treaties relating to the transfer of offenders since 1978. Since that time, 1,531 Canadian offenders have been transferred back to Canada, while Canada has returned 127 foreign national offenders in our prisons back to their countries of citizenship. The initial legislation, which was modernized in 2004, now, in the interest of public safety, has to be amended once again.

Currently, the Minister of Public Safety is required by law to take several factors into account when considering a request for a transfer. These include: first, if the offenders returned to Canada would constitute a threat to the security of Canada; second, consideration of whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence; third, the offender's social or family ties to Canada; and, fourth, whether the foreign entity or prison system presents a serious threat to the offender's security or human rights. No doubt, these are important considerations which ought to be taken into account. However, there are deficiencies.

Nowhere in the current law is there any specific mention of protecting the safety and security of law-abiding Canadians. Nowhere in the current law is there any specific mention of victims, family members or children. I would submit to the House that these are serious omissions that the bill before us would certainly correct.

Moreover, Bill C-5, when passed by the House, will allow the minister to consider a number of other factors when considering offender requests for a transfer. Specifically, the Minister of Public Safety will be able to consider situations where an offender who requests a transfer to Canada has refused to participate in career, vocational or educational programs while incarcerated in another country. The minister will also be able to take into account the circumstances in which the offender, if transferred to Canada, will be monitored and supervised after his or her release. This is especially important, given that one of the purposes of the act under consideration will continue to be contributing to the administration of justice and the rehabilitation of offenders and their reintegration into the community.

Bill C-5 would also allow the minister to take into account several other very important considerations when assessing an offender's request for a transfer. These are as follows: If the offender has accepted responsibility for the offence for which he or she has been convicted, including acknowledging the harm done to victims and also to the community; and, if the offender is likely to continue to engage in criminal activity if the transfer is successful. These considerations should surely help to guide decisions about whether to grant a request for a transfer from an offender serving a sentence outside of Canada.

Currently, there is no clear legislative authority for the minister to take those matters into account. Bill C-5 would surely remedy these deficiencies, while providing the minister more flexibility in the decision-making process itself.

I will now highlight how the proposed amendments would help keep Canadians safer, because I believe all members of the House are interested in keeping Canadians safe. The amendments before the House would add public safety as one of the purposes of this legislation. These are two simple words but these simple words will clearly reinforce the government's commitment to ensuring that Canadians, their families and their children are safe and secure in their communities. At the same time, the amended legislation would ensure that offenders remain accountable for their actions, both in Canada and abroad, and continue to be treated fairly and equitably when they are making a request to be transferred.

The legislation as it stands would empower the Minister of Public Safety to assess an offender's potential security risk when considering a request to transfer back to Canada. However, as I indicated in my intervention with the previous speaker, the notion of a threat to the security of Canada has been linked solely to terrorism threats to Canadian people as a whole. We believe that is too narrow and must be expanded to include public safety risks to Canadians domestically and locally in their own communities. The bill would add to this by including as a factor whether, in the minister's opinion, the offender's return to Canada will endanger public safety. The Minister of Public Safety will consider, among other things, the safety of victims, the safety of any child and the safety of members of the offender's family.

To further guide the minister's decision-making on these matters, the amendments propose other factors that would add greater flexibility in considering transfer applications. An example as to how this might work in practice is that if the offender is likely to commit criminal activity in Canada, the minister may take this factor into consideration when entertaining the transfer request.

Conversely, this legislation also has factors that would actually assist offenders in making applications successfully. For example, if an offender is in poor health, has co-operated with law enforcement officials or has acknowledged the harm he or she has done to victims in the community, the minister may take these factors into account when considering the transfer request.

I would submit to all members of the House that these are sensible changes and, moreover, much needed. When the minister assesses the potential risk of transferring an offender back to Canada, it is not enough to examine the likely threat to national security. Public safety must also be a principal consideration in that decision, and public safety must include more than threats of terrorism.

This legislation is timely considering that it is National Victims of Crime Awareness Week. It also ensures that helping victims of crime remains at the heart of the government's public safety and justice agendas.

On this side of the House, we have always believed that every victim matters. We are committed to ensuring that victims' voices are heard and their concerns are taken seriously. That is among our highest priorities and why we have taken action on so many victims' rights issues.

The legislation before us is proposing to help further strengthen this track record by ensuring that the safety of victims can be taken into account when assessing a request for transfer. The changes our government is proposing stipulate that the safety of family members and children will be taken into account. This is an important change and a clear deficiency in the act as it currently reads.

The minister would be able to consider the issue of the transfer of an offender with assault convictions against family members and if it would endanger their safety. The minister would also be able to consider an offender incarcerated for a sexual offence against a child in a foreign state and if he or she is likely to commit a sexual offence against a child if transferred to Canada. Surely, these changes are sensible and all members ought to support them.

Bill C-5 would ensure that the Minister of Public Safety may consider public safety as part of the decision-making process for the transfer of offenders. As such, this bill reflects this government's commitment to strengthening the rights of victims, increasing the responsibility of offenders and making our communities safer.

While the amendments before the House today are simple and straightforward, they would have a significant impact on the lives of Canadians who are concerned about the transfer of offenders back to Canada. Accordingly, I urge all members to join with me in ensuring the speedy passage of Bill C-5.

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

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, the short answer is absolutely not. I will say this again. Bill C-5 would add this factor to the act, “whether, in the minister's opinion the transfer 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.

Once again, I do not know if my hon. friend listened to what I said. The offender in the foreign prison is coming back to society anyway. This amendment does not change that fact. The only question is whether anybody in the House wants that person to come back to our country treated, have any programming, or subject to any conditions. Under my hon. colleague's premise, the offender would be granted the transfer, would stay in the foreign prison, would come back to this country to go right after the victim and we would not even know it.

I know my friend is a learned counsel. I would think he would stand and tell the Minister of Justice and the Minister of Public Safety that this is a bad law. That will endanger victims in this country.

Again, this is what the 2006-07 report from the government said:

An analysis of the information contained in this report doesn’t only demonstrate that the purpose and the 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 its 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 [is being met].

Those are the facts.

The definition of national security has not been restricted to terrorists. I quoted from a case earlier where a member of a criminal organization was barred entry under that by the minister and that was upheld by the courts.

I believe the protection is in the act.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Madam Speaker, I commend my friend for his eloquent and passionate speech however misguided it might have been.

I have a couple of specific questions.

The current legislation talks about “threat to the security of Canada”. I am sure my friend knows, because of his research, that this phrase has been interpreted to apply only to terrorists. Is he not concerned that this is too narrow a definition? Should public safety also apply to offences that happen domestically in breach of our own domestic laws?

Would he also not agree with me that the absence of victims, the safety of any person in Canada who is a victim as identified in section 2(1), or the family of a victim, or the safety of any child in the case of an offender who has been convicted of a sexual offence involving a child are glaring omissions from the current legislation, all of which would be remedied by Bill C-5?

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am pleased to speak on behalf of the New Democrats on Bill C-5, An Act to amend the International Transfer of Offenders Act. By way of background, Bill C-5 is virtually identical to former Bill C-59, which was introduced in November 2009.

When Parliament prorogued, Bill C-59 died before it received any debate in the House. It was one of a suite of criminal justice bills, 17 as a matter of fact, which bills were actually killed by the government when in December last year it chose to prorogue Parliament and hold up much of the legislation that Canadians want and hold up the debate on many of the issues that ought to be debated.

Bill C-5 contains amendments to the International Transfer of Offenders Act. It would be helpful for all members of the House to consider the history and background of this act. Canada has had legislation providing for the international transfer of offenders both from Canada and into Canada since 1978. The International Transfer of Offenders Act was enacted in 2004 and replaced the old Transfer of Offenders Act.

The act essentially provides a mechanism for a foreign national imprisoned in Canada to apply for a transfer to his or her home country to serve the remainder of his or her sentence. Similarly, the act provides a mechanism for a Canadian citizen imprisoned abroad to apply for a transfer back to Canada to serve out the remainder of his or her sentence here in Canada.

As I said, the old act and the current act together have been in force for over three decades in this country. Both the Liberals and the Conservatives have been in power and overseen the administration of this legislation. Liberal governments and Conservative governments have overseen the transfer and repatriation of Canadian citizens back to Canada.

Between 1978 and 2007, which is the most recent year for which comprehensive statistics are available, 124 foreign nationals were transferred out of Canadian jails, and 1,351 Canadian citizens were transferred back to Canada.

The purpose and principles of the act are quite clear. The current purpose of the act is defined in section 3, which states:

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

The Correctional Service of Canada has a website dedicated to the International Transfer of Offenders Act. This website gives more detailed background about the principles underlying the international transfer mechanism. I will quote from that. It states:

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 even expected to provide food and financial assistance. 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.

In the case of offenders, Canadians coming back to Canada, that means serving their sentences in accordance with sentencing principles of Canada. I want to emphasize that those are not my words that I just read. Those are the words of the Correctional Service of Canada. That is the description by the people we entrust, who have expertise in carceral policy in this country. It has been the policy of this country for 30 years. These are the principles the government seeks to change by this very flawed, poorly conceived, unjust and totally ineffective legislation.

Let us consider the current process for a transfer application under the act. 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. Let us be clear. This requires tripartite agreement of all of the actors and it requires them to agree in every particular case, without which the transfer application will not proceed.

The Minister of Public Safety is then designated to review all applications for offender transfer. The present act specifies the factors that the minister shall consider when evaluating an offender's application for transfer. In section 10, four criteria are outlined. Let us consider whether these criteria are appropriate.

First, the minister must consider whether the offender's return to Canada would constitute a threat to the security of Canada. Right there, the national security of Canada is four-square in front of us as a criterion that must be considered. Second, the minister must consider whether the offender left or remained outside Canada with the intention of abandoning Canada as his or her place of permanent residence. Again, this is not a provision for fair-weather Canadians who then want to seek the protection of Canada. This is for Canadians who happen to be abroad when a criminal offence is committed by them.

Third, the minister must consider whether the offender has social or family ties in Canada. Fourth, the minister must consider whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights. These four criteria have been applied successfully and well by every government in this country for over 30 years. However, the current government suddenly has problems in applying these criteria.

I will pause here to say one thing. My research indicates 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 think that the changes proposed by Bill C-5 will reveal to all Canadians and members of the House how poorly this bill is conceived. Bill C-5 seeks to add the words “to enhance public safety” to the purpose of the act. I am going to come back and talk about that in a minute because of course everybody is in favour of public safety.

The act currently states that the minister shall consider the factors that I just outlined. Bill C-5 would change this to read “the Minister may consider the following factors”. Bill C-5 also seeks to add the phrase “in the Minister’s opinion” to the existing factors laid out in the act. Bill C-5 would also add seven new factors, once again that the minister “may” consider.

I am going to stop there to say that the Conservatives have taken a judicial, legal process under a statute of Canada and have essentially said that the only Canadians who can be transferred back into this country, who have been convicted abroad, are people that the minister wants. That is it. There is no judicial way to challenge that. There is no legal way that a person could compel the minister to consider certain factors. It is whatever the Minister of Public Safety wants.

That is bad public policy and I would say that whether the minister of public safety was a New Democrat, a Liberal, a Bloc Québécois member or a Conservative. It is wrong.

There is a saying that we use in law schools to describe completely arbitrary law. We say that justice is measured by the length of the chancellor's foot. It might be six inches, eight inches or 10 inches. Nobody can ever tell because it is whatever is subjectively in the mind of that chancellor.

This is exactly the kind of legal thinking that typified our system 300 years ago, much before we had concepts like human rights, due process or rule of law. I would not expect the government to understand that, considering some of the legislation I see coming out of it.

These are some of the factors that the minister may consider: whether the offender is likely to engage in criminal activity in Canada, the offender's health, whether the offender has participated in rehabilitation programs, the manner in which the offender will be supervised after this transfer, and whether the offender has co-operated with police.

Let me stop here and say a couple of things. Think of this in terms of public safety. Say we had a Canadian serving a sentence in a Pennsylvania prison, much like David Radler, the person involved who was convicted and testified against Conrad Black. By the way, he applied under this legislation and was approved by the government to come back and serve his time in Canada. I did not hear the government complaining when a multi-millionaire applied under the International Transfer of Offenders Act and was granted the ability to come serve his time in Canada. I heard not a peep from the government.

However, if a person applied from Pennsylvania and came to Canada, that person would be coming here directly to jail. There is no public safety component to that. If that individual is serving time in a U.S. prison, that individual would continue to serve the time in a Canadian prison. There is no public safety aspect whatsoever. That individual is not coming back to this country to actually re-enter society. That individual is coming back to Canada to re-enter penitentiary.

One might say that people are going to be released into custody. This the major flaw and absurdity of the bill. When those people finish their sentence in Pennsylvania, the first thing the United States is going do is deport those offenders back to Canada and Canada has no choice but to receive them. So those people are coming back into Canadian society at the conclusion of their sentence no matter what. I will talk in a minute about how foolish that is and how this act actually makes Canadians safer by having those people transferred to a Canadian jail.

I want to talk about public safety because public safety is important. New Democrats agree that enhancing public safety should be given consideration when considering any piece of legislation that comes before the House. However, in this case the government has not presented one iota of evidence that public safety is being compromised under the current act. Nothing. But I have heard the public safety minister as well as members of the public safety committee say that they do not care about statistics, they do not care about the facts. They think they can define what are good criminal penal laws in this country by what they think or feel as opposed to the data.

It is important to remember that Canadians transferred back to Canada under the act are not being released immediately into the community and again, they are returning to serve out their prison sentence in a Canadian correctional facility.

I mentioned earlier why I think that public safety is enhanced by granting prisoner transfers. Offenders who serve their sentence in Canada will be subject to the oversight of a parole officer, released with conditions that must be followed ,and can have their rehabilitation and reintegration into the community carefully planned and monitored. The offenders who are sitting in a Pennsylvania jail or a Mexican prison have none of those things.

Offenders who serve their time in a foreign jail often have no rehabilitation, no programs, no substance abuse programs, no mental health programs, often nothing. In fact, often it is the case that they do not even speak the language of the country in which they are imprisoned.

Most importantly, Canada has no record of offenders who are not transferred back to this country, when they are released from a foreign jail and come back to Canada. They will come back to this country and we have no criminal record. We have no record of them serving time in prison. They will come back and they will be treated as a first offender if they do ever commit a crime in Canada.

Whereas, if they are transferred to a Canadian prison, we will have records. It will not be the criminal record. We will have records of them being in a penitentiary and then of course again, when the offenders are released into the community we can actually spell out the conditions of that release and supervise them. So it is actually less safe to pass this legislation. The Conservatives are endangering Canadians by passing this legislation because it will result in fewer people who are being approved for transfer.

I want to talk about whether there is actually a problem to be fixed here. The act is working. The Conservatives are trying to build a narrative that says that Canadians are being endangered because the Conservatives do not have enough power to deny applications for transfer. Again, I will trouble them with the facts.

From 2002-07, under both Liberal and Conservative governments, 367 applications for transfer were approved by the ministers involved and 24 were denied. So 367 times both Liberals and Conservatives decided to bring an offender back to Canada. Of those 24 denials, 3 offenders applied for judicial review of the minister's decision. One case was a denial based on the fact that the offender had spent 10 years in the United States and was deemed by the minister to have abandoned Canada as his or her place of permanent resident. So the federal court judge made a ruling stating that the court should not readily interfere with the discretionary decision of a minister and held that the minister's findings were not unreasonable.

Another case was a denial because the minister held that the prisoner had been identified as a member of a criminal organization and that the transfer would threaten the security of Canada. In that case, the CSC gave advice to the minister that the transfer would be highly beneficial and that the individual would not constitute a threat to the security of Canada. Nevertheless, the judge held that the decision of the minister was reasonable and the denial was allowed to stand.

Of the three denials, two cases were challenged and the minister's discretion was upheld. In the third case, the minister again made a denial on security grounds. The judge in that case, however, found that the decision of the minister was made with disregard to the “clear and unambiguous evidence” presented by the government's own officials. In this case the judge referred the decision back to the minister for re-determination.

The government points to this one case where a judge has overturned a ministerial denial, and on this basis it says, “Oh, we need to tighten the law”.

There was another case reported earlier this year, however, that I think is probably more revealing of the government's true feelings on this. This is where the judge did order a reconsideration of ministerial denial. In this case four individuals were convicted together of a single crime. Two of the individuals had transfer applications approved, but one was denied despite the unanimous recommendation of senior government officials.

The judge ruled that the minister's decision was inconsistent and arbitrary, and he gave the minister another 45 days to explain and justify or to reconsider the decision. This seems to me to be a very appropriate balance and a fair ruling, and yet the government continues to argue that it needs changes to this act.

I think this is the case, that the government wants to act arbitrarily and the current legislation prevents it from doing that. There has not been any case made that there is any reason to depart from the current scheme of the act, other than the government wanting to politicize the process and hand pick whoever it wants to come back into this country.

Again, the problem with Bill C-5 is that it does not strengthen the act, it shreds it. It does not strengthen the guidelines for the minister, it essentially eliminates them. Bill C-5 dictates that the minister may take certain facts into consideration, but then again he or she may not.

In the current act, the factors are presented as objective standards that can be evaluated by officials and, in the rare cases where it is necessary, ruled upon by a judge.

Now this opens up the process to bias. It does away with transparency and accountability. It allows the minister such wide-ranging discretion to ignore criteria completely and use his or her own subjective opinion as the test as he or she deems appropriate. That is wrong because it replaces an established law-based process with a politicized subjective one.

We might ask whether the government can be trusted to exercise discretion fairly. For New Democrats, this question of trust must be answered, unfortunately, in the negative. The government has demonstrated it cannot be trusted with unfettered power, whether it is the power to prorogue Parliament, or to hire and fire watchdogs and oversight officials, or to approve George Galloway, a British member of Parliament coming into our country and exercising his right of free speech as opposed to Ann Coulter who made derogatory and racist comments about many individuals.

We know what the government will do. It will exercise its political ideology instead of acting as fair and judicious public officials in this country.

With this bill the government proposes that the minister should be given absolute power and absolute discretion over who to bring back to Canada and who to leave overseas. It will do away with the judicial avenue for review by framing the minister's decision in such discretionary terms that it would be impossible for anyone to successfully argue that the act had been violated.

I want to ask, how do other countries feel about this? Because Canada has agreements with many countries for the reciprocal transfer of offenders. This is not just a Canadian plan. This is a program that involves dozens and dozens of countries. I suspect that if we ask other countries how they feel about the government wanting to essentially restrict the international transfer of offenders, which works beneficially for citizens of all countries, I would bet that those countries would express their displeasure to the government.

I want to talk a little bit about the politicization of justice because that is what I think the government is doing. If members go outside the Supreme Court of Canada or any court in this land, they will see a statue of the scales of justice with a blindfold on the statue, the goddess of justice. That is there for a reason. It is because justice ought to be objective and blind. It needs to have fair rules and fair law-based processes that apply to everyone equally, and not to allow judges to hand pick and not be accountable for their decisions by writing the rules that say it is whatever they think it is.

I want to end with a quote from the International Transfers Annual Report 2006-2007, which states:

In the 29 years since the first international transfer took place with the United States, there has been a steady increase in the number of agreements in place with foreign countries...increasing the number of applications received for processing...and of the number of offenders transferred to and from Canada. It ensures that offenders are gradually returned to society and that they have the opportunity—

[Maria Mourani, Bloc, Ahuntsic, QC]

Mr. Speaker, when the Prime Minister of Canada went to China in 2009, he said that he would teach the Chinese government about human rights. He said:

And so, in relations between China and Canada, we will continue to raise issues of freedom and human rights, and be a vocal advocate and an effective partner for human rights reform, just as we pursue the mutually beneficial economic relationship desired by both our countries.

But Bill C-5, An Act to amend the International Transfer of Offenders Act, which we will be opposing, makes it clear that the Prime Minister and the members of his government have nothing to teach the Chinese government. Allow me to explain.

Under the current International Transfer of Offenders Act, when the Minister of Public Safety agrees to a request for transfer back to Canada of a Canadian imprisoned abroad, he shall consider a number of factors, including whether the offender constitutes a threat to the security of Canada, if he has social or family ties in Canada, if he is truly a resident of Canada, what is his state of health, and so forth. In the case of a young offender, what is best for the youth is the main consideration when making a decision.

There is another key factor, set out in paragraph 10(1)(d) of the existing legislation, and that is “whether the foreign entity or its prison system presents a serious threat to the offender’s security or human rights.” Bill C-5 replaces the term “shall” with “may”. Therefore, the minister “may consider”.

Consequently, it would be up to the minister to decide whether or not to take into account threats to the human rights or to the security of the Canadian citizen being held abroad. He would no longer be required to consider the human rights. He could, if he so wished.

That means that if a person is held abroad for committing any crime, even drug trafficking, they must remain in that country even if the minister knows they are being tortured. If that country engages in torture, the minister could, arbitrarily, decide not to consider this factor for any number of reasons.

The minister can make such a decision for a variety of reasons. It may be because the offender is homosexual or does not belong to the same church as the minister. The minister may consent to the transfer. Who knows, maybe the offender's father is a big party backer. That is the power that comes from “may” rather than “shall”.

Anything is possible when an arbitrary decision is made. Even the craziest reasons can come into play. Maybe the offender once ran for election against the minister and plans to run again. There is the potential for serious demagoguery.

Making arbitrary decisions that affect people's basic rights and security could lead to situations that are unacceptable and completely absurd. For example, a 20-year-old Canadian woman—this is a hypothetical but quite plausible situation that could happen anytime—might have to serve a lengthy sentence abroad for attempting to smuggle drugs. She might be held in extremely difficult conditions. She might be raped by her guards and suffer all kinds of abuse. And the correctional service and another government organization could tell the minister that this makes no sense.

This person should be returned to Canada because the living conditions in the country in question are dangerous and pose a threat to her physical and mental well-being. But with this bill, the minister could decide quite arbitrarily not to take this information into account. He could sign on the dotted line and refuse to bring the offender back to Canada, saying that her return would endanger public safety. He could also wait a year or two before giving an answer, just as he does now. It is just as serious, but that is another story.

What is most serious is that making the decision arbitrary not only helps feed rumours about a government, but opens the door to abuse, corruption and collusion.

I seriously doubt that this government wants to enhance public safety with Bill C-5, because the current international transfer law is based on balanced criteria under which the courts can exercise appropriate oversight over the minister's decisions. The minister must consider certain factors. When there are controls in place, checking is done. Case law shows that judges have ruled that the minister was wrong or right.

With this bill, the government appears to be looking for a way to prevent the transfer of more prisoners, probably because it is of the simplistic belief that keeping these people in prisons outside of Canada will better protect the public. Unfortunately, in many if not the vast majority of cases, we would be fooling ourselves if we thought that keeping Canadian prisoners overseas was a good way to protect Canadian society. In the end, the majority of them come back to Canada. They are Canadians. We cannot revoke their citizenship. Who knows—maybe they are planning to introduce a bill to revoke criminals' citizenship. These people are Canadians and they will come back. What condition will they be in when they do? Will they have taken part in programs?

The truth is that very few countries offer programs. In Canada, however, the correctional system offers a lot of programs. Right now, programs get 2% of the funding they need. I think we should increase funding for federal programs provided by the Correctional Service of Canada to 10%. Our system looks pretty good compared to those of other countries. However, the truth is that these programs are underfunded. When we compare ourselves to other countries, we see that at least people here may have access to programs provided by the Correctional Service of Canada.

It is highly likely that Canadian prisoners incarcerated in countries that do not offer such programs will be dangerous when they return to Canada. I have been to countries where the prison system is utterly antiquated and where people are crammed together in rooms. There are all kinds of prison systems in the world. We cannot expect that prisoners will have access to good rehabilitation programs. Individuals who return to Canada may or may not have had access to programs. They will be dangerous when they come back here. They will not have been rehabilitated, and they will not be monitored by the Correctional Service of Canada.

When prisoners are transferred, the Correctional Service of Canada takes responsibility and monitors them until the end of the sentence. What we have now are people who come back here after serving their sentence and are not monitored at all. Which is the better way to protect society? The answer is self-evident. Which is the better way to protect offenders? Yes, there is some ideological conflict here. Protecting society requires prisons and a certain degree of repression, but that is not all it takes. Rehabilitation, prevention and many other strategies are critical to protecting society, and they all require funding.

Many experts now say that international transfers already enhance public safety because they help ensure that offenders who would not have had access to rehabilitation will automatically have access by entering the federal system in Canada. As a result, these people, instead of being deported without having received any rehabilitation, will be sent to our system where they will have access to all of that.

The 2006-07 report from Correctional Service Canada stated that offenders who are not transferred are usually deported to Canada at the end of their sentence, without correctional supervision and without the benefit of programs. Therefore, international transfers play a key role in rehabilitation, and ultimately in protecting the public.

Let us be clear: the sole purpose of this bill is to give more discretionary power to the Minister of Public Safety, regardless of which government is in power. The bill will enable a public safety minister to do whatever he or she wants. That has nothing to do with protection. In fact, if the Conservatives are telling us that they want to strengthen this legislation for more protection, then they should not remove the words “shall consider”. They should be left as they are. They could add some criteria, but they should not remove the word “shall”; it should be left.

We see how this government treats Canadians and Quebeckers abroad, so we have to wonder: do we want to give this government more discretionary power? Would it not be risky to give any government more power? A government already has a lot of power, so would giving it more increase the risks?

Here is an example. Ms. Mohamud is a 31-year-old Canadian citizen who went to Kenya to visit her mother. She was unable to return to the country because she was accused of having stolen a passport. She was told that it was not hers. Eventually, after a long fight, this woman was able to prove her innocence. She is currently suing the Minister of Citizenship, Immigration and Multiculturalism, the former minister of public safety, the member for York—Simcoe, and the current Minister of Foreign Affairs for $12 million. Furthermore, the Minister of Foreign Affairs is accused of intentionally or negligently failing to conduct a competent investigation of Ms. Mohamud's case, and he is also accused of intentionally defaming Ms. Mohamud by implying to reporters that she was dishonest, that she was not who she said she was, and that she had committed criminal misconduct.

Are we supposed to trust people like this? Impossible. We cannot give them carte blanche. It does not matter who the minister of public safety is, now or in the future. They should not be given discretionary powers when physical safety or human rights are at issue. That is fundamental.

This bill paves the way for arbitrary decisions in terms of respect for human rights—and that is a threat to democracy—and opens the door to possible corruption or collusion.

If this bill is passed, the minister of public safety, no matter who it is, could decide that certain factors are more important than others when determining if someone should be transferred, all without having to take into consideration the individual's physical safety, health, family ties in Canada or basic rights. The minister could, as the bill states, take into consideration any factor he considers relevant. This leaves the door wide open.

This could lead to all sorts of problems: those who donate to political parties could be subject to a different standard of justice than other people, and the minister would have full rein to justify his decisions.

It will be impossible to prove cases of collusion or corruption because the minister will have the right to do whatever he wants and establish any criteria that he considers relevant.

If the government really wants to rid the international transfer system of all partisanship and collusion, it only has to ensure that the minister has the duty to take into consideration the criteria established in the legislation. And, yes, I said “duty”.

In closing, I asked myself a question. I asked myself why this law needs to be amended. According to most of the literature, this law works well and does a good job at protecting society, even more so because the minister has the duty to take this criterion into consideration.

The minister currently has some latitude in deciding whether or not to transfer someone. And if we look at case law, the Federal Court has backed most ministerial decisions. The best example is the De Vito case in which Justice Harrington of the Federal Court agreed with the minister's decision, even though the RCMP and Correctional Service Canada recommended that he be repatriated.

So why should we change a piece of legislation that works? Perhaps the government is trying to ensure it has the authority to eventually refuse to repatriate the child soldier Omar Khadr, if he is ever tried and sentenced. The United States wants to send him back to Canada, but the government does not want him here. But with this, if he is tried and sentenced, it will become a matter of international transfer. The Canadian government has already trampled this young man's rights, as the Supreme Court of Canada has recognized, but I have a feeling this bill will seal his fate.

Helping someone whose life is in danger is a fundamental principle for Quebeckers. This right is enshrined in the Quebec Charter of Human Rights and Freedoms. The government's Bill C-5 flies in the face of the fundamental values of Quebeckers. This bill is completely consistent with the Conservatives' anti-human-rights ideology.

In any case, we watched as the Conservatives gladly cut several programs that allow people to fight for their rights. All United Nations member countries have signed the United Nations Universal Declaration of Human Rights. In fact, although the French title speaks of the rights of “Man”, I believe that women are people too, so “human rights” is better, but that is a different argument. As everyone knows, enforcing and recognizing these rights is problematic in a number of countries. It all lies in the ability to say either “I must” or “I cannot”.

I think the Prime Minister is leading Canada towards becoming that kind of country. In fact, he is working hard to do so, and is doing a good job of it.

I cannot wait for the day when we separate from Canada and we can create our society without the shackles of Ottawa, build a country that reflects our values, a country that knows how to defend the rights of all members of its population without exception, without arbitrary decisions, without collusion and most importantly, in a very humane manner.

The House resumed from April 16 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.

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

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, there have been 1,314 applications for transfer received by international transfers unit of Correctional Service Canada from 2002 to 2007. Of those, 519 were denied by the minister, who has the right under the existing legislation to do that, on the basis of threats to public security or not a significant link to the country.

Is that not working? Why do we need then Bill C-5, which purports to be for enhancing public safety, if the minister already has that discretion and has used it? I do not know the math of 519 out of 1,314, but it is almost in half the cases.

What is wrong? “If it ain't broke”, why fix it?

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

Mr. Speaker, the extension of these powers to the minister, when the system seems to have been working so effectively, will have to be very carefully examined at committee. If improperly used, this would create a situation that is much more dangerous.

I also agree that there seems to be a double standard. When it comes to Conservatives, if one does the crime one pays the fine, as opposed to their normal rhetoric.

Specifically on the issue of Bill C-5 and its application, the government will have to provide us with some very good reasons why these additional powers are necessary and assure us that they will not be abused in a way which is inconsistent with even its own annual report, which talks about how important these provisions currently are.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, my colleague knows very well that Bill C-5 will give more discretionary power to the minister to repatriate Canadians who are serving sentences abroad.

The Bloc Québécois is very worried about this. We saw the Conservatives fight tooth and nail in the House to defend their former candidate and MP Rahim Jaffer, in response to the allegations of impaired driving and cocaine possession. We have to wonder whether the purpose of this bill is simply to enable Conservative MPs or anyone who has their membership card to be repatriated.

It worries me that this would give so much power to a Conservative minister. Does the member agree with me?