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.
NDP
Don Davies NDP Vancouver Kingsway, BC
Would you agree with me that the transfers have a positive effect on public safety in this country? Would you agree with that statement as well?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
In general.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
That's because if you don't transfer an offender and their citizenship is Canadian, they are coming back to Canada, and your phrase is “without any controls”. Isn't that right?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Correct.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
So without a transfer.... A convicted person who could be a murderer or a pedophile can come back into Canada if they don't get transferred, and we will not have a copy of their record, will we?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Normally we will not, unless there's some kind of police agreement on sharing of information.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
So it's very possible that these people will come back into our communities and we won't even know they're here, isn't that right?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
It's possible.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
You have said that there are ”very valid public safety reasons for the transfer of offenders to Canada while they are still under sentence”. You gave a number of reasons for that. Is that right?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Correct.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
You said that “their foreign conviction will be recorded in the RCMP criminal convictions database if they're transferred...which otherwise would not be the case if they were simply deported back to Canada”. That's your testimony, is that right?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Correct.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
It's desirable that we have as many transfers as possible back to Canada from a public safety perspective. Would that be a fair comment?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
I'm reluctant to quantify—
4:20 p.m.
NDP
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
In general, that's why the scheme exists internationally: because it is perceived as having some value. Having said that, obviously there are exceptions and other factors to be considered.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Sure. Well, broadly speaking, what would be the thrust of your testimony? Would it be that transfers are positive for public safety or, broadly speaking, negative? What's your opinion?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
I would say, broadly speaking, that the evidence is that they have been positive.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Positive: okay.
Now I want to talk about this “shall” or “may” stuff here. The current act, in section 10, says, “the Minister shall consider the following factors...”, and there are four of them mentioned. The proposed act would read that “the Minister may consider the following factors”, and it takes those factors that were “shalls”, turns them into “in the Minister's opinion”, and then continues with “may” for all the rest of them.
Would you agree with me that it takes a mandatory consideration of criteria and changes it to something that is purely discretionary, and that nothing in this proposed legislation would require the minister to take into account any particular factor? Is that right?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
I'm not sure that I would agree with that global statement.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Well, I'm reading in the legislation that “the Minister may consider the following factors...”.
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
Right, but I would also point to subclause 3(1) in the bill, for example, and its reference to paragraph 10(1)(a) of the bill, where, yes, in the chapeau, it does say that the “Minister may consider”. But then the test, for example, in paragraph 10(1)(a), is “will constitute a threat to the security of Canada”. So that's a fairly onerous requirement on the minister in making a decision about that particular factor.
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Yes, but the whole thing, Ms. Campbell, is qualified by “may consider the following factors” and “whether, in the Minister's opinion”. The minister does not have to consider that factor. They may or may not. I'm a lawyer, and I know what the difference is between “shall” and “may”.
Now, how would you appeal that? At present, for judicial review, you're left with the fact that under the present legislation—and I understand there's ministerial discretion—you at least have something to hang your appeal on, because you can appeal on the factors that “the Minister shall consider”. Under this bill, if the minister did not consider any of those factors, on what would you base your judicial review with a statutory regime which says clearly that Parliament has said to that minister, you may or you may not? What would you appeal on?
4:20 p.m.
Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness
As Mr. Laprade has indicated, the minister's decision-making has to take place within the framework of the purpose of the act, so while it's difficult for me to speculate as to what an individual might argue, presumably the argument has to take place within the context and the purpose of the act. If a factor that appears to be relevant has been ignored—
4:20 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
But, Ms. Campbell, that's not if Parliament has said specifically to the minister he “may” consider it, and particularly if they introduce legislation showing that the previous legislative iteration said “shall”. A judge would say that Parliament's will is that the minister is not mandatorily required to take into account that consideration.