Public Safety Committee on Nov. 15th, 2010

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

Fellow committee members, we welcome you back after a week in the constituencies.

Welcome to the 39th meeting of the Standing Committee on Public Safety and National Security. Today is Monday, November 15, 2010. Today we're continuing our study of Bill C-5, An Act to amend the International Transfer of Offenders Act.

Appearing as witnesses today we have, as individuals, Charis Lynn Williams, as well as John Conroy, a lawyer.

From the Canadian Bar Association, we have Gaylene Schellenberg, who works on legislation and law reform, and Paul Calarco, a member of the national criminal justice section.

From the Canadian Civil Liberties Association, we have--welcome back--Nathalie Des Rosiers, general counsel, and Lorne Waldman, lawyer.

I understand each of you has an opening statement. I've had an opportunity to meet most of you. We will just begin, and then I would remind you that we'll go into the first rounds of questioning, which are seven-minute rounds.

Because we're televised today, I would also ask those in the gallery to please turn off their cellphones and BlackBerrys. It just makes things a lot easier.

I see Mr. Davies with his hand in the air.

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

Before we start hearing from the witnesses, Mr. Chairman, I would like to make a motion that our committee reserve 15 or 20 minutes at the end of the meeting for future business, if we could. I know there is an issue with what the committee is going to be discussing on Wednesday. I just want to get that out now at the beginning so we don't interrupt the witnesses' testimony.

[The Chair, Conservative, Kevin Sorenson]

All right. We have a motion to go to committee business. My sense is that with regard to these motions, we should usually expect to be able to go to committee business. It's not on the order paper, but I think we can reserve some time to go to that, so yes, we'll do that.

All right. Let's begin with Ms. Williams.

Welcome.

[Charis Lynn Williams, As an Individual]

Thank you.

Thanks for having me here. My name is Charis Lynn Williams. I'm the older sister of Brent James Curtis, U.S. federal inmate number 79979004, who is currently serving a 57-month sentence in Pecos, Texas, for conspiracy to traffic cocaine.

I'm opposed to Bill C-5 because of my experience over the last three years. I've become very well acquainted with the International Transfer of Offenders Act, the legal system in the United States, and various American prisons as I've advocated for my brother's transfer home to Canada.

I feel very strongly about the way the International Transfer of Offenders Act has been disrespected and ignored by our current government. I'm appalled that Canadian citizens are being denied access to an act that has been used successfully over the last four decades. This treaty between nations has had a high success rate since its inception, and nothing about that has changed, except that currently Canadian offenders incarcerated abroad are being denied the right to serve their time near their families.

The truth is, when our public safety minister denies transfers, he in fact endangers public safety, tears apart families, denies offenders access to rehabilitation, and turns first-time non-violent offenders into inmates doing hard time. I may never know why they are doing this, but I know it's wrong for all Canadians, and it needs to stop today.

My brother Brent is a Canadian citizen, a young man who made some bad decisions. These decisions led to his arrest by the FBI in October 2007. No amount of explaining on his behalf or mine will be able to justify the crime he committed. Yes, he should be held responsible for his actions, but he's still entitled to his rights as a Canadian citizen.

When Brent pled guilty to the charge of conspiracy to traffic, he stood to face 17 years in jail. After the U.S. federal judge reviewed the FBI's evidence and Brent's character references, his employment and education history, and heard him speak in court, she sentenced him to 57 months in a federal prison, roughly five years. The judge commented during sentencing that she saw Brent as a good person from a good family--not a career criminal, but someone who made a stupid decision to play a minor role in a major crime for quick financial gain.

Because in the U.S.A. the sentences are issued based on quantities, my brother's sentence, while still severe, was nothing short of a miracle for us. Our U.S. lawyer knew of the International Transfer of Offenders Act and assured us that Brent would be close to us while serving his time. We would be able to support him as he coped with incarceration and rehabilitation and we would help him make plans for his future.

Brent's transfer home to Canada was approved by the U.S.A. in December of 2008. It was denied in May 2009 by our then minister of public safety, Peter Van Loan. In a letter sent to Brent by Mr. Van Loan, the minister had determined that if transferred home Brent would commit an act of organized crime, despite the fact that he'd been convicted of only a minor role. It was determined in court that Brent had not been involved in organized crime, but had been hired as a delivery man. Mr. Van Loan ignored all the facts of the case, including recommendations from the U.S., Corrections Canada, and the prosecutor and the sentencing judge in Brent's case.

Brent has currently served over two-thirds of his sentence thousands of miles from home and family. We have visited him at every opportunity we could, at considerable expense. It is common knowledge amongst criminologists, criminal psychologists, and correctional services that optimal outcomes during and after incarceration are dependent on the inmate receiving support from family. By denying transfers, the minister is denying all Canadians the right to optimal outcomes for those apprehended abroad.

Since his arrest, my brother has been offered no rehabilitation, no counselling, and no education. Foreign aliens incarcerated in the U.S. are offered no programs whatsoever, and therefore no access to optimal outcomes.

When Brent was denied a transfer, I submitted an access to information request to all departments and offices of the government. I asked for and received any and all documentation, electronic and otherwise, bearing my brother's name. I did this in an effort to find out why the minister had denied him a transfer home.

In report after report, my brother was considered a prime candidate and recommended for a transfer. Corrections Canada, International Transfers, the prosecutor in his case, the probation officer who did his community assessment, and his sentencing judge all agreed that optimal outcomes were available to Brent if he were transferred home.

Again I stress, the U.S. justice department approved his transfer home in December 2008, nearly two years ago, but his home country, Canada, said no—rather, Mr. Van Loan said no.

It is common knowledge among Canadians incarcerated abroad that as more transfers get denied, more offenders are losing touch with their families and families are being destroyed.

Brent has been apart from his family now for three years. Brent's common-law wife decided to move on when his transfer was denied. At least when incarcerated in Canada, visitation is possible on a regular basis and phone calls home don't cost $1.99 per minute. Families are going broke trying to stay in touch. When transfers are denied, they make the tough decision to do what they have to do until the sentence is served out abroad. When we leave offenders abroad, there is no telling in what condition—physical, mental, or emotional—they will return to Canada.

It is important that Bill C-5 does not pass. More importantly, it is important that this government goes back to honouring a treaty that has served our country well for decades. Amending the act to read “any other factor that the Minister considers relevant” is much too broad and open to the minister's opinion, and not the facts. This endangers public safety in the long-run.

It is a well-known fact that Mr. Harper's Conservative government wants to be seen as being tough on crime. It's quite transparent to even a casual observer that the tough-talking Mr. Van Loan has chosen a path of least resistance. Prisoners across the border are easy marks and the minister can abuse their rights as citizens in the quest to appear tough to the constituents at home.

Should Brent serve his full sentence in the U.S.A., he will come home to Canada with no criminal record whatsoever. Over the last three years, my brother has served time with child molesters, rapists, and murderers. Canada doesn't need to worry about my brother coming home; he has learned his lesson. But we do need to worry about who will be dropped off at the border. After transfers have been denied undetected, there will be no record of their crime in Canada and they will not be registered with a Corrections Canada ID. Again, this is not public safety; this is public endangerment.

Committing a crime abroad does not revoke citizenship. These offenders come home at the end of their sentences regardless of whether their transfers are approved. As Canadians, we need to know who they are, give them an opportunity to rehabilitate, and, most importantly, we need them near their families to help them eventually reintegrate into society.

The attitude that “if you do the crime there, you can do the time there” is not going to help anyone. Forgetting about them and leaving them in dangerous situations when there is a perfectly good treaty between nations in place is inhumane, lacks forethought, and seems to only make sense as a campaign ploy to look tough on crime.

In the case of my brother, the minister ignored American officials, his own officials, made his own decision, and quashed the transfer. In essence, he arrogantly acted as though this bill had already been passed.

The only thing that brings my family comfort is that perhaps, in advocating for prisoner transfers, we can save another family from this hardship. When the people who commit crimes are apprehended and face incarceration, they need support to turn their lives around. Keeping them from their support systems puts us all in danger of them reoffending.

Once again, it is very important that Bill C-5 does not pass and, more importantly, that we as a nation take responsibility for our citizens incarcerated abroad. This will achieve optimal outcomes and ensure the safety of all Canadians.

I hope I have offered you some insight into our experience. I am open to answering any questions that may be of service to the committee. I thank you for your time.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Williams.

We'll now move to Mr. Conroy, please.

[John Conroy, Lawyer, As an Individual]

Thank you.

I have been practising law for some 38 years. I practise in the “Kingston of the west”, Abbotsford, surrounded by federal and provincial prisons, so part of my practice is not simply representing people charged with offences; it also involves a considerable amount of post-sentencing work dealing with people in prison, either in relation to prison issues that arise under the auspices of the Correctional Service of Canada or before the National Parole Board in terms of conditional release. So I'm very familiar with how the Corrections and Conditional Release Act operates and what happens to somebody who comes back to Canada, arrives at the reception centres, and is then processed in the same way as somebody who is sent from the courts. I'm happy to answer any questions you might have, because there are provisions in this bill that seem to be inconsistent with that, in the sense of the business about protecting victims or witnesses. Our Correctional Service of Canada is designed to do that, so it's unclear whether the opinion of the minister in some of these provisions is suggesting that the person is going to reoffend when they come into prison in Canada. Or is it after they've gone through the whole process of imprisonment in Canada and have passed through the National Parole Board? Or exactly when? The act doesn't seem to address that.

I have acted and am continuing to act in about 50 cases currently. We have 10 that are filed before the Federal Court. I've acted in all of the cases, I think, except for Grant and DiVito. By the way, I have given the clerk an update of the cases and what has been going on in the law so that you'll have it for your benefit later on in terms of just what has been happening.

The Federal Court has been setting aside the decisions of the minister on a regular basis as being unreasonable. They are, by and large, boilerplate; you can see that they've just plugged in the names and so on in different places. They are, in my submission, inconsistent with the purposes of the act, which is to enable transfers in order to facilitate the rehabilitation and reintegration of the offender by having them come into our system, so that Corrections Canada gets to know who they are and gets to assess who they are, determine their security classification and what programming may be required, and process them through, as I say, a Canadian perspective.

The Corrections and Conditional Release Act requires Corrections Canada to try to place people in close proximity to their families and to their community support in a compatible linguistic and cultural environment, because it has been recognized for many years that having support, having people who can support you and be nearby, is a very important factor in assisting in somebody's reformation and rehabilitation.

The example of Mr. Curtis, who I acted for, is an example that's fairly typical. Mostly, Canadians in the U.S. are there for drug offences, usually as couriers or mules. Usually they've made it to minimum security. As indicated, they're not eligible for a lot of programming in the U.S., so they're simply biding their time, hoping they can come back to Canada and go through the Correctional Service of Canada process and that will assist in their reformation and rehabilitation.

The alternative is that once they reach a certain stage of their sentence in the U.S.--federally, it's at 85%--you get deported back because you're inadmissible in the country in which you've committed the crime. Then you come back, as has been indicated, without a Canadian criminal record. Certainly there's an American criminal record and certainly there are databases now that people can access in order to find foreign criminal records, but it doesn't form part of your Canadian police information computer, which, if the ordinary police officer stops you and is checking his database, is what's going to come up.

The offence has to be an offence in both countries. You have to be a Canadian citizen. The sentence has to be one that can be administered in Canada. We've had some cases where people traffic in certain drugs in the U.S. That's illegal in the U.S., but not in Canada, so those people wouldn't be eligible for extradition or for treaty transfer. You have those two critical factors: citizenship and double criminality are the base.

The situation is such that there are many, many Canadians sitting in this situation, losing their support, losing spouses, and being out of touch with families, and not just in the U.S. I have a number of particularly egregious cases in Japan.

We recently had to file because the minister denied the application of a woman called Ms. Bouseh, who, along with two brothers, was involved in a drug offence going into Japan. Ms. Bouseh was arrested and not sentenced until nine months later. She found out she was pregnant and gave birth to her child while shackled and handcuffed in a prison hospital in Japan. The child was removed from her within a couple of days, and she hasn't seen the child since. The minister took almost three years to decide the question, and he denied her. I have difficulty understanding how that promotes Canadian public safety.

I had a letter just last month from another Canadian in Japan who contests the legality of his conviction and says he was framed. But leaving that aside, he too got nine years. When his wife found out what the current government was doing in relation to treaty transfers, she gave up on him. He has three children--an 11-year-old, a 12-year-old, and a 15-year-old--and he just found out recently, through his mother, that his wife, who had left him, had suddenly died. He has been unable to have any communication to find out what's been happening to the rest of his family. He was sentenced in 2006, so it's been four or five years since he's had any communication with his kids. He was hoping that through this process he'd be able to come back and be reformed and rehabilitated through the Correctional Service of Canada.

I get lots of letters from prisoners throughout the U.S., and throughout the world, in fact, telling me these stories. As I said, I've been to court now on numerous occasions.

This bill seems to be designed to make it easier for the minister to deny transfers, when the purpose of the bill as set out in clause 3 is to assist in the rehabilitation and reintegration of the offender. In the decisions that I see regularly now from various ministers--starting with Stockwell Day, then Peter Van Loan, and now Minister Vic Toews--the bottom line in the reasoning is that they don't believe a transfer would achieve the purpose of the act, which again, even with the amendment to clause 3, is to enhance public safety. These transfers enhance public safety.

If somebody comes back who has been deported in the end and we don't know much about them, that's it. If somebody comes back on a transfer, we get to know them, we get to assess them, we get to find out who they are and what their connections are--all of which the minister's own department, the Correctional Service of Canada, supposedly does. We have case management teams develop correctional plans and present them, if they apply, to the National Parole Board. Most members of the National Parole Board are appointed by this government. You have to convince them you do not pose an undue risk to reoffend before you can then be released.

Many of the treaty transfer prisoners come back past all of their eligibility dates. They still sit--at least in British Columbia--for two to three months in the reception centre before they're classified and placed. Frequently they're first-time offenders with no history of violence, so they qualify for something called accelerated parole. The test for that is whether there are reasonable grounds to believe you're likely to reoffend in a violent manner before warrant expiry.

Many years ago I had the privilege of appearing here at committee when the government decided to make it more difficult for violent offenders and easier for non-violent offenders, because it was recognized--and the research still shows--that the longer you keep a person in prison, usually the worse they get. They don't get better being in prison; they get worse. So accelerated parole was created.

Many of these people are first-time federal offenders and not involved in a violent offence. If they come back to Canada on a transfer, the act recognizes--because of the conversion of the offence and sentence--that they become second-time offenders. So if you're deported back and reoffend, you could still qualify for accelerated parole. If you're transferred back, you would no longer be eligible for accelerated parole if you were to reoffend.

I know the committee has the statistics that were presented to the minister in terms of what happens in relation to people who come back. It would be nice to know what happens to people who are deported. We don't have the statistics of those who come back free and clear. How many of them have reoffended?

We do know that of those who have come back—and have been within two years post their warrant expiry date in Canada—the statistic is 0.6%, which is four people out of some 620 who were transferred back between 1997 and 2007. We also know from the statistics that between 2003 and 2008, with a total of 473 in that period, 16, or 3.4%, reoffended.

So the incidence of recidivism by these people who have come back through the treaty transfer process is very low. That seems to indicate that the existing program has been working quite successfully and ought to be maintained, and fewer people should be denied.

I'm over my time, but I've given in my written solutions--

[The Chair, Conservative, Kevin Sorenson]

I'll let you go a little bit longer. You're about a minute and a half over already, but if you want to add one concluding comment, please go ahead.

[John Conroy]

One last little point then.

You should know that many of these other countries don't take the same approach to imprisonment that we do. In the United States, the Sentencing Reform Act of 1984 abolished rehabilitation as a factor. You don't send people to prison for rehabilitation in the United States.

I've included in the materials I've given you the purposes and principles of sentencing in Canada under the Criminal Code, the purposes and principles of corrections under the Corrections and Conditional Release Act, and the purposes and principles of conditional release, which is part II of the Corrections and Conditional Release Act, to show you what our Canadian system does.

If one looked to Japan, as an example, the conditions of confinement there go back to a Charles Dickens sort of era, in terms of silence and limitations on communications and this sort of a thing. What happens with people if you leave them there and don't bring them back, in trying to affect their rehabilitation, is that they get angry and embittered and you make them more upset and more likely, in my respectful submission, to come back and reoffend.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll move now to Ms. Schellenberg.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

I'm Gaylene Schellenberg, a lawyer with the legislation and law reform department of the Canadian Bar Association.

Thank you for the invitation to present the CBA's views on Bill C-5 today. The CBA is a national association representing over 37,000 lawyers, law students, notaries, and academics.

An important aspect of our mandate is seeking improvement in the law and the administration of justice. It's from that perspective that we appear before you today.

With me is Paul Calarco, member of the CBA's national criminal justice section. The CBA's justice section represents both crown and defence lawyers from every part of the country, and Mr. Calarco practises criminal law in Toronto.

I'll turn it over to him to introduce the substance of our submission and respond to your questions.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Mr. Calarco.

[Paul Calarco, Member, National Criminal Justice Section, Canadian Bar Association]

Thank you very much.

I certainly would like to thank the committee for allowing the Canadian Bar Association the opportunity to comment on Bill C-5 and the issue of international transfer of offenders.

As Ms. Schellenberg indicated, the CBA section represents the views of both crown and defence lawyers. While I am a practising defence lawyer in Toronto, I have served as a part-time assistant crown attorney and was a standing agent for the Attorney General of Canada for six years. Thus I bring a personal perspective to today's proceedings that encompasses both defence and prosecution experience.

The Bar Association is very supportive of legislation that enhances the safety of Canadians. The object of our criminal law is to ensure a safe and just society through a variety of measures. One of the most important of these is the rehabilitation of the offender. When an offender has been rehabilitated, not only does that person no longer represent a threat to the well-being of our society, but he or she also becomes a contributing member of our country. The national or social interest and the interests of the rehabilitated offender are congruent.

The CBA also recognizes that Canadians travelling abroad are subject to the laws of the country in which they travel. Canada cannot enforce its laws in another state any more than another country could enforce its laws in Canada, but there is more at issue here than simply which laws apply to an individual. What we are dealing with is the fundamental bond between country and individual, and that bond is citizenship. Just as every one of us owes loyalty to Canada, our country owes its loyalty and its protections to its citizens. The legislation being considered fails to recognize this fundamental principle.

In the few minutes I have for this opening statement, I would like to address two important points. First, this legislation is intended to keep Canadians safe. In fact, it would not only fail to do this, but would actually endanger public safety. Second, the bill allows for excessive ministerial discretion, which is contrary to our most basic principles of law.

In dealing with my first point, it is well recognized that the best way to ensure public safety is through the rehabilitation of offenders. This will involve different means in different situations--for example, treatment for an addicted or mentally impaired person or education and training for a disadvantaged person. A person who does not receive rehabilitative assistance during his or her sentence will be in no better position to contribute to our society at the end of sentence than at the beginning of that sentence. The same problems faced initially will be present, if not exacerbated by the period of incarceration in a foreign setting and away from the positive influence of family. The offender will remain more likely, not less likely, to commit offences.

When the offender returns to Canada, as he or she has the right to do as a citizen, nothing will have been done to lessen the likelihood of offending. By contrast, returning a person to Canada during the sentence, when they can be subject to Canadian rehabilitative measures, increases the likelihood of rehabilitation and lessens the possibility of recidivism. It also enhances public safety by allowing Canadian authorities to gradually reintegrate a person into the community, through parole, and allows Canadian authorities to have information about the offender that would not otherwise be available.

Both of these methods contribute to public safety. In the House, when the bill was introduced, it was stated that the government was committed to public safety; however, no explanation as to how this bill contributes to public well-being was given. In our view, this bill would do the opposite and it would fail to protect Canadians.

The second point I wish to make is that the bill allows ministerial opinion to be the determining factor in deciding if a Canadian offender should be returned to Canada. At present, mandatory criteria are set out in the legislation, which the minister must apply. This bill would change that to allow a minister to refuse the transfer of an offender simply based upon his or her own opinion, even if such an opinion was not well founded or was unreasonable.

This is not a standard that can be supported in a country based on the rule of law. This is in reality an attempt to insulate the minister's decisions from review and create a situation of blind submission to ministerial determinations. It is, in our view, quite likely that such a standard would be found to be unconstitutional by our courts. Such a standard will also spawn applications for judicial review using moneys that could be better spent on the rehabilitation of offenders. Rehabilitation will contribute to public safety; endless litigation will not.

If Parliament wishes to address the issue of public safety in a meaningful manner, the Bar Association urges that this bill be reconsidered. It does nothing to enhance public safety; indeed it endangers it.

I would be pleased to answer any questions the members of the committee may have. I thank you for your attention to this opening statement.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Calarco.

We will now move to Ms. Des Rosiers.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

I want to thank the committee for inviting the Canadian Civil Liberties Association to appear.

I will speak to four main points. The first is the constitutional vulnerability of the bill. The second is that it is not consistent with the international regime currently in effect. The third, which has already been discussed at length, has to do with the fact that the bill conflicts with the very objectives of public safety, because it removes the necessary follow-up provided by the Parole Board of Canada, as well as access to rehabilitation programs, which are equally as necessary. My final point will focus on the dangers of the bill, in its current form.

But first, I want to introduce Lorne Waldman,

who has represented the association in a case where we intervened in the Federal Court.

Mr. Waldman will make the first three points for the association.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Ms. Des Rosiers.

Mr. Waldman, please.

[Lorne Waldman, Lawyer, Canadian Civil Liberties Association]

I'll try to keep my remarks within the time.

I'm surprised, as a lawyer, with a lot of lawyers here, that no one has mentioned section 6 of the charter. I get the honour of being the first, except for my colleague, who mentioned it briefly.

We intervened last month in the Federal Court of Appeal on a case called DiVito. That was one of the cases where a prison transfer had been refused.

There are two different views in the Federal Court right now. In my view, the more cogent view is that section 6 is engaged in the refusal to allow a person to transfer. Simply put, a Canadian has a right to return to Canada, so if he's deported and put at the border, Canada has to take him back. If the Americans say you can go back to Canada to serve your sentence, and there's no longer any impediment to the Canadian citizen returning, except the permission of the minister, the refusal of the minister to allow the Canadian citizen to come back is a prima facie violation of section 6. This point was fully argued in the Federal Court of Appeal last month. I expect there will be a decision quite shortly, and if, as I hope, the court rules that section 6 is prima facie violated by the refusal, then it's my personal opinion that much of this act will be unconstitutional.

If a prisoner has a right, which I believe he does under section 6, to return to Canada, then the only way the minister could properly refuse would be to justify the refusal on exceptional grounds under section 1. The way it is now, the prisoner applies and the prisoner has to satisfy the minister that he is entitled to return to Canada. If section 6 is in fact engaged, and if that's the determination of the Federal Court of Appeal in the decision that I hope comes very soon, then at that point the onus would be on the government, or the minister, presumably, to justify under section 1 that the transfer itself would endanger public safety or the security of Canada--and the minister would have to be able to justify that.

We were in court arguing this with the justices and trying to come up with scenarios. Remember, it doesn't matter how dangerous the person is as a citizen; when he serves his sentence, he comes back, and then we have to use whatever mechanisms we have in the Criminal Code to protect Canadians. The issue is whether he comes back before the sentence is completed to serve his sentence in Canada.

I think it's very hard to conceive of a situation where the actual transfer enhances the risk to public safety or to national security. There may be an exceptional case, so it's possible the court won't strike the provisions down completely, but I'm hopeful that the court will rule that section 6 requires that, except in exceptional cases, the minister would have to allow the Canadian citizen back. If that's the ruling, then I would suggest to you that the bill will have to scrapped and it'll have to go back to the drawing board.

The second point I want to make just very briefly has to do with international law. The transfer of prisoners came about, this whole regime, because there is a recognition internationally that prisoners would be better served if they served their sentences in Canada. It was better for the society of which they're a citizen, because society would have input into their rehabilitation and it was better for the prisoners to be close to their families.

The right of a citizen to return is also recognized under international law. I think there's a very compelling argument that this legislation is not only inconsistent with section 6 of the charter, but it is also inconsistent with our international obligations.

The third point we wanted to make has been made many times much more eloquently by the first speaker, which is that we all want to enhance public safety. I have not heard one argument, in all the times I've been in court and debated this, that convinces me that there's anything in this bill that would enhance public safety.

It seems the bill is designed, as the previous speaker said, to replace a list of mandatory factors that the minister has to consider with a discretion that is inconsistent with the rule of law, and, hopefully, if the Federal Court of Appeal agrees with us, it's inconsistent with section 6 of the charter.

I think Nathalie had one more point she wanted to make.

[Nathalie Des Rosiers]

We have been approached by many families who have loved ones not only in the United States but elsewhere. The only point I want to make here is that when you look at some of the provisions that are in the bill.... There are two that I'll mention. One of the criteria is whether the offender has accepted responsibility for the offence for which they have been convicted, and a second is whether the offender has cooperated or undertaken to cooperate with law enforcement.

In the abstract you might say that's great, that we really want to know this. But the danger here is that this provision is going to be used to assess the patriation of people who come not only from the United States, but from all the other countries that are listed. As you know, there are countries all over the world in which at times the vigorous assessment of your presumption of innocence.... I want you to imagine that it's possible out there in the world that there would be some wrongful convictions. If somebody is asserting his or her innocence, then the minister could consider that as being an inappropriate way, for example, of cooperating, of recognizing the harm.

This is dangerous, because we recognize that elsewhere in the world at times this has been used to oblige people to plead guilty, and we have reports of pressure being made in that regard. It is similar with cooperating with law enforcement in cases in which there is torture or bad treatment or in which people are being discriminated against because they are foreigners, or because they are gay, lesbian, and so on. It is a dangerous thing to ask them to cooperate with law enforcement when they can be treated badly and beaten up in prison because they have done so.

So in a way, I think we're concerned that in some of the criteria we may endanger the lives of some people who are incarcerated in a range of countries, and that range of countries will continue to expand and includes countries where I think the rule of law is well observed and other places where people might have concerns about the way it's been applied.

Our concern is that we think it's premature for this bill to be looked at, since it is in front of the court right now. We consider that it does not meet the objective that it sought to enforce and simply that it may indeed be dangerous in some of the criteria it uses.

That is the end of our presentation. Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Des Rosiers.

I will move to the Liberal Party. We'll go to Mr. Holland for seven minutes, please.

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

Thank you, Mr. Chair.

Thank you very much to the witnesses for appearing today.

I started my comments, the first time this bill was discussed by committee, by saying that this is a bad bill. I think I was too kind. What I'd like to do, if I could, with the witnesses is go through this.

I asked the witnesses who came from the department to explain to me how this wasn't a bad bill and how it improved public safety. They couldn't make the case—and I don't think any of you were trying to make the case, but you certainly didn't—that it enhanced public safety. In fact, what we heard was quite the opposite.

Let me start on the issue of recidivism, the rate at which individuals are reoffending. There was an ATIP recently, and I think it was quoted by Mr. Conroy in his comments, stating that over the period of time that was looked at—and I'm just looking at the ATIP now—from 2003 to 2008 the reoffending rate was 3.4% for those who participated in the transfer program. Given the fact that this is a remarkably low rate of recidivism, could you not directly make the argument that for somebody, for example, who is serving their time in the United States, where the rate of recidivism is much higher, we are not only in an anecdotal way but in a concrete way that you can almost definitively prove making a more dangerous situation by not bringing these people home, when you look at comparative rates of recidivism?

I don't know whether somebody wants to respond to that.

[Paul Calarco]

I think that point is quite clear. As Mr. Holland mentioned, there are different rates of recidivism in our two countries. As Mr. Conroy mentioned earlier, in the Sentencing Reform Act of 1984 in the United States, rehabilitation was removed as a principle of sentencing there. Also, Canadians would not be eligible for rehabilitative programs if serving time in the United States.

Of course, it varies from country to country, but there is very little impetus for foreign states to spend rehabilitative resources on Canadians, since Canadians will be deported back to Canada when they've served their sentence or are otherwise eligible for release in the other country. Then that person becomes Canada's problem, with no rehabilitation at all. This creates a situation wherein, as I was mentioning in my presentation earlier, all the problems that existed before the offence was committed and before sentencing are even worsened now.

As Mr. Conroy mentioned, prisons are not good at rehabilitating people. People become worse the longer they spend there and the fewer programs they have. So it's very important to have strong rehabilitative programs if we are going to have people return to Canada and become productive members of our society, which is a vital goal.

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

We heard from departmental officials that the bill would scope the reasons by which somebody could reject a claim for a transfer. The concern we raised was that the minister could, for whatever reason he wanted, reject the transfer. The department said, “Oh, no, this isn't the case”, that it would be scoped, and the minister could only act within certain boundaries. Yet as I read the legislation—and I'd be interested in your take on it—there's a section that says “and any other factor” that the minister wants to take into consideration.

Speaking to the panel assembled here, is there anybody who would share the department's belief that the minister would be so constrained, or would you share my concern that in fact no such constraint exists? In fact, even in the absence of this bill, the government is already seeming to reject most claims for transfers.

[Lorne Waldman]

As an administrative lawyer, maybe I can try to answer that question.

The minister's exercise of discretion is determined by the legislation. Under the current legislation, he must take into account certain factors; he has to. If he doesn't, then the decision can be set aside.

The purpose of this legislation is to replace the obligation to take into account these factors with a list of factors that he can take into account, as long as he.... It doesn't oblige him to take any of them into account and it allows him to take into account any other factors that he wishes. Obviously, the purpose is to give the minister much broader discretion and to try to avoid a lot of the successful challenges that have been brought—by Mr. Conroy, mostly—to the refusal to transfer prisoners.

Having said that, he would still be subject to judicial review, and if he were capricious.... I mean, the exercise of discretion would have to be based upon factors that were in some way relevant to his overall decision, so if he took into account the fact that the prisoner's eyes were blue or something that was completely irrelevant, the court would still likely intervene. This is all subject to my charter issue, but it's going to dramatically expand the discretions, so it's going to be extremely difficult.

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

I guess my point is that if you have already the government rejecting so many of these transfer agreements, and if you see Bill C-5 pass, given the very broad definition by which the minister could then reject it, could the minister not in any and every single case find some excuse, in that very broad context, to reject an application?

[Lorne Waldman]

Absolutely.

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

Okay.

I don't know whether anybody in the panel feels qualified to answer this, but as well as the impact of relations with the United States—we know the United States has approved many of these transfers and that we are now saying no, and we know the state department has reacted very negatively to this—is there anybody on the panel, and I know most of you are coming at this from a legal perspective, who would like to comment on the impact on relations with the United States of pursuing this kind of course and what potential impact it could have?