Evidence of meeting #34 for Public Safety and National Security in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was factors.
A recording is available from Parliament.
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Yes, I appreciate--
Mr. Laprade.
4:20 p.m.
Senior Counsel, Legal Services, Correctional Service Canada
The courts have already said that. In Kozarov, the court has already said that the factors listed in the act do not lend themselves to a positive or negative decision by the minister and that the minister can take into account any other factors that are relevant in the context, and--
4:25 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Correct, but the current legislation says the minister must take into account those four criteria.
4:25 p.m.
Senior Counsel, Legal Services, Correctional Service Canada
Yes, but even if he does not list or use one of those factors in making a negative decision on a transfer, for example, what the minister is obligated to do--and this is what the courts have said--is that there has to be a decision that is provided with rational reasons. You have to be intelligible in your decision, so that the person who receives the decision knows exactly the basis of the denial, and those elements or considerations the minister lists, or the reasons for the denial, have to be linked with the purpose of the act itself and--
4:25 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Of course. I understand how the judicial review process works.
4:25 p.m.
Senior Counsel, Legal Services, Correctional Service Canada
--this is within the context of the existing legislation right now.
4:25 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Right. I understand that there is discretion and that the minister can make whatever decision he wants as long as it's rationally connected. But the one direction in the current legislation or the one thing the minister cannot avoid is that he must consider four factors. That has to be the case: “the Minister shall consider the following factors...”. If the minister didn't consider those factors, there would be a successful judicial review.
Under the current proposed legislation, that would change. The minister would not be required to consider any of those factors. That's what I'm driving at. I'm not getting a satisfactory answer that would tell me that the minister would be required to take into account these factors, when it clearly says that he or she is not required to. That's the concern.
4:25 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
The only thing I would add--and I'm sorry that I'm going to disappoint you, because I'm not going to answer your question directly--is that I would just point out again that denials of applications are not a new phenomenon, and they are not a rare phenomenon.
For example, when you look at the annual report for 2008-09, you will see a graphic about denials of applications. This is the time period between 2004 and 2009. Of the applications denied during that period, 85% of the denials were in fact done by the foreign country, not by Canada. Fifteen per cent of denials....
4:25 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Is it your testimony that you think denials will go up or down if this legislation is passed?
4:25 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
It's impossible to answer that. It's impossible.
4:25 p.m.
NDP
4:25 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
No.
4:25 p.m.
Conservative
4:25 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you very much, Chair. I see that you're enthralled with the evidence being presented here. I think that in court--we all watch television--Mr. Davies would be accused of badgering his witness. But anyways, we'll leave that alone.
4:25 p.m.
A voice
[Inaudible--Editor]
4:25 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
I was going to start off with this, so I'll be a little bit disjunctive, but there are some reasons for that. You were talking about refusals. My information, or the statistics I've read with regard to refusals--and I'm referring to the Canadian refusals--is that between 2003 and 2007 about 40% of requests were refused.
That's from 2003 to 2007. Would those numbers be roughly correct? My clock is ticking, so if it takes you a while to look, I'd just say that if my numbers are exaggerated or you don't think they're accurate, you can come back to them later.
One of the general thrusts I'm seeing here is that any change to this legislation is not good because it gives too much power to the minister; I think you've answered that rather well, in that he “may consider” not that he “shall consider”.
You've said in general that it is generally safer to bring back Canadians who are convicted of crimes in foreign lands because we can keep a better eye on them here or because there would be some form of record. Would it not be correct to say that you could correct that very easily by revisiting that transfer agreement and changing Canadian regulatory regimes to say that the record in that country is automatically transferred to this country should the prisoner be transferred? Their record of conviction would then become part of a criminal record in Canada.
4:30 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Do you mean if they came back outside of the transfer program?
4:30 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
No. I mean if they came back inside the program. If the person came back....
4:30 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
If they come under the transfer program—
4:30 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
—the criminal record comes with them. That's correct.
4:30 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you. So there's a record, but what you're saying is that if the person completes the sentence in the other country and comes back to Canada, there is not necessarily a transfer agreement unless there's a reciprocity agreement with that country.
4:30 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
That's correct. There are some agreements in place, for example, with certain states in the U.S. where that information, in relation to certain categories of offences, I gather, is routinely shared with Canadian officials.
4:30 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
So we can say that.... If my memory serves me correctly, from a policing perspective we have access directly in the United States with regard to people's criminal convictions, back and forth, through NCIC.
Is that not correct, Mr. Laprade?
