Public Safety Committee on Oct. 20th, 2010

[Voices]

Oh, oh!

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

Right, and I'm aware of that; I'm anxious to hear from them as well.

But given the fact that we weren't planning on dealing with this today, I think it's important that we rectify these outstanding matters. What I will do is give you a notice of a subpoena motion for these two witnesses. That way, it's on notice should they decide not to come voluntarily. I think that allows the clerk to say that the committee feels very strongly about their attendance and feels that it's imperative. That allows the clerk to advise them that should they make the decision not to appear, the committee will be considering a motion to subpoena them.

[The Chair, Conservative, Kevin Sorenson]

All right. I will make mention of that. Again, you must file the motion.

Madame Mourani.

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

I'm giving notice, and the wording of the motion is that the committee subpoena these two individuals. That's notice and wording.

[The Chair, Conservative, Kevin Sorenson]

Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Mr. Chair, you just said that we cannot move any motions today. Therefore, you should know that I intend to give notice of motion to address the situation with Mr. Small and Ms. Morin. I will follow Mr. Holland's lead.

I do not have a problem with your calling these two individuals and attempting perhaps to convince them to appear. I'm sure that you can be quite convincing. WIth all due respect, I don't have a problem with that. However, should these persons turn down our invitation, then we will give notice of motion to compel them to appear.

You mentioned that it is impossible for some witnesses to come and testify and that we are used to this. I can understand why Joe Blow might not be interested in appearing before a committee. However, public office holders have a duty not only to act in a transparent manner, but also to answer to the people for their actions.

I think these individuals have a duty to testify before the committee about what happened during the G20 and about why a number of Quebeckers and Canadians were detained. The committee isn't asking to hear from Joe Blow. It wants to hear from people entrusted with very important responsibilities.

I agree with your decision to contact them. I'm a very courteous person and I'm very pleased to see that you will be calling them, but we still intend to give notice of motion.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much for that.

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

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

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

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

Welcome.

We look forward to your comments.

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

Thank you very much, Mr. Chair.

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

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

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

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

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

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

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

The legislative purpose of the ITOA, which is under the authority of the Minister of Public Safety, is as follows: “To contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Campbell.

We'll move to the first round of seven minutes, with Mr. Holland.

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

Thank you very much, Mr. Chair.

I thank the witnesses for appearing on very short notice and also for waiting at the beginning of the meeting for us to get started.

I have to say at the outset that I think this is a terrible bill and I really have to be convinced otherwise.

You started at the beginning of your presentation by giving a very strong explanation for why we need the international transfer of offenders and how it has served an important public safety function. One of the concerns I have is with this notion that we should give the minister carte blanche, that however the minister wakes up and feels in the morning, he should be able to do whatever he wants regarding an international transfer of an offender. That's aside from the fact that it's quite arbitrary, because it's now entirely in the minister's hands.

The second problem I have is that these people--and correct me if I'm wrong--are coming back to Canada. The question is, are they coming to a Canadian prison, serving a Canadian sentence, being rehabilitated in a Canadian jail, and, when they come out, having a Canadian record? Or are they spending their time in a foreign jail, potentially with no rehabilitation, potentially in much worse situations, and then after a time in a federal prison, being deported back to Canada, much more dangerous than they were before?

I'm trying to understand how something that has been successful, that has been an important tool of public safety, is enhanced by giving the minister very arbitrary powers to make decisions for which he isn't to be held accountable.

[Mary Campbell]

Thank you.

I think you'll appreciate the limits of my role in appearing as a public servant with the kinds of questions that might be better answered by the government. I would say that the bill is intended to reflect the court decisions that have occurred to date, obviously, and the advice of legal services, so that there are parameters placed around the decision-making.

I must say that I don't think it is carte blanche. I don't think anything in the act permits the minister to make decisions that are outside the scope of the act. I think these factors and the additional statement of public safety in the purpose is in fact intended to do the opposite--

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

Sorry, but just on that, because I think this is an important point and I need clarity.... I've looked at all the reasons why the minister can deny an application. Looking at those, I try to find a way that you couldn't just use any one of those for virtually any reason.

Secondarily, how is the minister...? What process or accountability mechanism is in place? I don't see it in this bill. Maybe you can explain it to me. If the minister just says it was because of reason x, for him, or her, if the future minister is a she, to then be held accountable to explain the decision and rationalize it based on the criteria given. I don't see that accountability mechanism. Am I missing that somewhere in the bill?

[Mary Campbell]

Well, the act does require the minister, where it's a denial, to give written reasons for the decision, so that's one element of the accountability. Those reasons and the decision are given to the Canadian offender who then of course has access to the courts--

[A voice]

No, no. Where--

[Mary Campbell]

--if they wish to challenge it.

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

I'm sorry, but I think people are having trouble following some of what you're saying. One of the things I'm looking at in the bill is proposed paragraph 10(1)(l): “any other factor that the Minister considers relevant”. That's one of the factors listed. So I don't see where the minister has to submit a letter. I don't see that anywhere in the bill--

[A voice]

No.

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

But even if it is in the bill--and perhaps someone could point that out to me, because I don't see it--if the minister can use a clause that states “any other factor that the Minister considers relevant”, then I would posit to you that in fact under this legislation they can use any rationale they so choose. Beyond him or her writing a letter, how do we hold them to account when the standard given to us is “any other factor that the Minister considers relevant”?

[Mary Campbell]

Yes. The requirement to provide reasons in writing is in the existing act, so the bill is purely an amendment bill, and all the provisions in the act that are untouched by it remain in place--

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

But we have in the bill, under factors, proposed paragraph 10(1)(l): “any other factor that the Minister considers relevant”. Let's say I'm a minister and, for whatever reason, I've woken up and I don't like this particular individual or whatever it may be, and I say, “This is my reason and here is your letter”. What accountability do we have?

[Mary Campbell]

Well, I think that's where some of the direction from the courts comes into play. But I'd invite Mr. Laprade to perhaps comment on that.

[Michel Laprade, Senior Counsel, Legal Services, Correctional Service Canada]

Subsection 11(2) of the act requires the minister, when he refuses the transfer, to provide reasons. The fact that a clause provides for the minister to consider any other factor relevant cannot be read in isolation from the other provisions of the act, especially the purpose of the act. The minister could not simply render a decision on a matter by saying that he decided today that he didn't like an application and he is refusing it. It--

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

Okay, but let me give--

[Michel Laprade]

--has to be related in reality with the purpose and principle of the act.

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

Let me give you a specific example. Let's say you have an offender serving in a foreign prison where they have no access to rehabilitation and no access to programs, which is unfortunately a very common occurrence. The minister can refuse under proposed paragraph 10(1)(h): “whether the offender has refused to participate in a rehabilitation or reintegration program”. Well, they may not have had any--