Public Safety Committee on Nov. 15th, 2010

[John Conroy]

I understand that the U.S. has complained about Canada's failure to approve people under this treaty, this agreement that we entered into with them some 30 years ago. If you're going to do this, why don't you just abolish the act? Why don't you repeal the International Transfer of Offenders Act, if that's what your intention really is, and not play these games, hanging this carrot out in front of them and saying, “Well, you can always apply for transfer”? They're told this often at the time of sentencing.

The U.S. approves them now on a regular basis, and most of these people are in minimum security and have kept clear conduct, etc. The U.S. is saying, we made sure they weren't in a gang before we put them in this prison. Now, what is Canada doing? Why isn't Canada accepting them back? That was the whole purpose of our agreement.

We have an act because we have to implement treaties by passing laws to do so. The U.S. doesn't; the treaties are self-executing.

Some people have said this is going to be my retirement bill, because, with this type of amendment, I can see myself in Federal Court on a regular basis on judicial review, both on section 6 and section 7 charter grounds.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Conroy.

Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chair.

I want to thank you all for being here today to give us insight into this bill.

What I understand, after listening to everyone, especially you, Mr. Conroy, is that the current legislation works. That is what I used to think as well, before this government was elected, of course. Since it has been in power, I have found that there are fewer and fewer transfers. In fact, my office receives requests from prisoners. We call the department, and we get no response, which is another matter.

Instead of calling this bill An Act to amend the International Transfer of Offenders Act, I would have called it the Omar Khadr Act. It is my sense that this bill was drafted in such a way as to make the process so arbitrary that the government would have the discretion to deny applications from people like Omar Khadr. Am I wrong?

Do you think the government is trying to do away with anything involving rehabilitation and make sure that, from the moment someone is arrested for a crime in another country, they have to stay there?

[John Conroy]

It's a mystery to me, because in order to override a constitutional right such as the section 6 right to enter, or your section 7 right to have your liberty affected in accordance with the principles of fundamental justice, it usually requires some pressing and substantial government objective. As we've said here, public safety is not really put forward or enhanced by this process.

The act existed long before the Khadr situation. It may be that this is what's behind these amendments. I don't know. Mr. Khadr is a good example. If you take somebody who is accused...well, he has pled guilty to murder, but in the context of terrorism. Paragraph 10(2)(a) of the act talks about, currently, whether the offender will commit a terrorist or criminal organization offence after transfer. So you take somebody from a terrorist situation and you ask yourself, where's the safest place for him to be? Is it in some foreign country where he may suddenly be deported back, or is it in one of our country's jails, one of our prisons, where we can get to know more about him and control his imprisonment and his release back into the community as a Canadian citizen?

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you.

It is clear in reading this bill that it leaves a lot of room for arbitrary decisions. It contains wording such as “the minister may consider” and “in the minister's opinion”. Do you think this kind of discretion and this kind of legislation could lead to corruption? That question is for all of you.

The best example of that would be a minister granting the transfer request of an offender who was associated with someone who would then provide campaign funding.

That kind of discretion could lead to corruption and contributions to campaign coffers, could it not?

Ms. Des Rosiers, I saw you nodding your head.

[Nathalie Des Rosiers]

Whenever you have a lot of room for arbitrary decisions, there is always the concern that the discretionary power could be used improperly and especially that the public could have that perception.

So a family who has lost hope could think that making a financial contribution to a political party would help an application along. We do not want that to happen.

There is another potential concern with this bill, which is that it could be used as a model in other countries. If Canada passes this kind of bill, in other words, one that affects an international treaty, it could be looked upon as an exportable model abroad.

This is dangerous territory because it will obviously lead to the same kind of unlimited discretionary power being favoured in other contexts, and could very well be dangerous in this one.

[Maria Mourani, Bloc, Ahuntsic, QC]

Mr. Calarco, do you think this type of discretion could lead to corruption, quite simply?

When you give someone the discretion to make arbitrary decisions and when campaign funding is at play, people like Vito Rizzuto might make it home faster than, say, Mr. Tremblay, who does not have a dime to his name.

[Paul Calarco]

One would hope that any minister of the crown would act honourably, but one has to be aware that excessive ministerial discretion is fundamentally at odds with the rule of law. Every minister requires some discretion in carrying out the functions of his or her office. There is no doubt about that. But this goes far beyond what is necessary to carry out the office. Unfortunately, in Canadian history, we do have cases of ministers acting quite improperly and having to be corrected by the courts. The most extreme examples we see...for example, Roncarelli v. Duplessis, so many years ago, but they remain beacons in Canadian history of what we must guard against.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you.

Yes, Mr. Conroy?

[John Conroy]

I'll just add that the minimum requirement under section 7 of the charter is something called “procedural fairness”, where you know you have to tell the person the case against them so they have a fair opportunity to respond.

In this section it says whatever “the Minister considers relevant”. The person who's going to be affected by that decision will have to be told ahead of time what factors the minister is considering. Otherwise it's going to result in an unfair decision, the Federal Court will set it aside and quash the minister's decision, and we'll have to do it all over again.

[Maria Mourani, Bloc, Ahuntsic, QC]

My question is for all of you. The discretion to act arbitrarily could lead to biased decisions and value judgments, could it not?

For example, a homosexual person could be in a certain country, or someone might be in a country where abortion is illegal. Those are crimes that go against the values of certain political parties in power.

When you have arbitrary decision making, you can end up with value judgments and biased determinations that are not necessarily based on fact, can you not?

[The Chair, Conservative, Kevin Sorenson]

Madam Mourani, unfortunately, your time is up. That is a question you may be able to incorporate in some of the other answers.

[Maria Mourani, Bloc, Ahuntsic, QC]

Can I have an answer?

[The Chair, Conservative, Kevin Sorenson]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

I'd like to thank all of you for appearing and injecting what I think is some sanity, rationality, and logic into a discussion that until now has been highly politicized. We've beaten to death the arbitrariness that is unmistakable in this act, so I won't belabour it.

But I do want to point out and get your opinion on the following. Opinions can be a little ironic here.

Right now under the act there are four criteria that are mandatory. The proposed act would not only change the mandatory directive to one that is completely directory--“shall” to “may”--but in five of the criteria that are added it injects the words “in the Minister's opinion”. This isn't just a question of mandatory directory that he or she may take into account; it actually imports into the act a test of “in the Minister's opinion”.

To those of you who have spent time in the appellate courts and doing appeals, particularly in administrative law, I wonder if you could tell us a little bit about what concerns you may have about a test, particularly on appeals, and how you'd appeal a test like that.

[Lorne Waldman]

When you introduce the minister's opinion into this it becomes a much more discretionary decision and far more difficult to review. That's the first point.

Second, when we were in the court of appeal last month and looked at the criteria in the current legislation, it was argued--and it's my view--that of the criteria that exist now, most are contrary to section 6. Remember, if the issue is whether you can justify refusing the transfer because in some way it will result in a danger to national security or public safety, the criteria that the minister considers have to be directed to answering that question. Most of these criteria are completely irrelevant to any assessment as to whether the transfer will enhance public safety.

The first one in the current legislation--not the proposed bill--says the transfer will enhance the risk to public safety. Then it goes on to ask a series of other questions that are completely irrelevant, in my view. All of these criteria violate section 6.

[Don Davies, NDP, Vancouver Kingsway, BC]

The first is “whether, in the Minister's opinion, the offender's return to Canada will constitute a threat to the security of Canada”. The second is “whether, in the Minister's opinion, the offender's return to Canada will endanger public safety”. So if the minister says, “In my opinion, that person will endanger”, as long as it's not irrational or based on having blue eyes, how would you appeal that?

[Lorne Waldman]

It's going to be much more difficult to appeal if section 6 isn't engaged. If it is, the minister will have to prove...and it'll be on the minister to establish that.

[Don Davies, NDP, Vancouver Kingsway, BC]

I realize that, if there's a charter right.

I see Mr. Conroy wants to comment, but I want to move to.... One of the reasons I'm concerned about this is not just theory. The Dwayne Grant case was a decision of then Minister Van Loan. The Federal Court said the decision seemed “inconsistent and arbitrary, and therefore it lacks transparency”. Mr. Van Loan rejected the unanimous advice of senior officials who recommended transfer.

In the Getkate case--one of yours, Mr. Conroy--then Minister Day, a different minister of this government, found that the applicant represented a threat to national security, even though Canadian prison officials had advised him there was not a shred of evidence of that.

I'm wondering how you feel about there being concrete examples of cases where ministers have already started to try to make decisions based on an absence of evidence or an absence of judicial process.

[John Conroy]

I haven't had a case in which the evidence has supported the denial of a transfer. All of the investigations by the Correctional Service of Canada have usually supported the transfer. They have said that the intelligence information determines that this person is not a threat to the security of Canada or is not a terrorist or will not commit a criminal organization offence. Sometimes they say, well, there's some information that there may be a link to a criminal organization, if they're involved in a drug trafficking case, but often they go on to then say there's nothing to indicate that this person was anything more than a courier or a mule.

So usually the evidence doesn't support the minister's opinion, and that has been the basis for the courts finding the decisions to be unreasonable and setting them aside--because many of the courts have decided to duck the section 6 issue, hoping it gets resolved in the court of appeal. So reasonableness is going to be the test, whether these amendments come in or not, and section 1 of the charter, which I have set out in the materials I've handed in, shows the various criteria.

That's going to be the main issue if section 6 is engaged. We do have the Van Vlymen case, in which the Federal Court found that section 6 was engaged and found that the government had wilfully violated his section 6 and section 7 rights in bad faith for a period of nine and a quarter years.

One of the major problems ongoing at the moment is the length of the delay between the time the file reaches the minister's office and a decision is made. We have cases now that are up to three years in the minister's office.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

Madame Des Rosiers, you mentioned I think a very important point, whereby the proposed act would actually enshrine one of the criteria as being whether the offender has accepted responsibility for the offence for which they have been convicted. I'm thinking of Donald Marshall, David Milgaard, Guy Paul Morin, and Steven Truscott, famous Canadian wrongfully convicted people. Under this legislation, had those people been convicted of those offences in a foreign country, they would never have been able to be transferred, simply because they stuck to their claim of being innocent, as they in fact turned out to be. Is that the kind of fear you have?

[Nathalie Des Rosiers]

That was the fear. The fear is that when you impose a duty to cooperate with law enforcement where you have to recognize the harm you've caused and so on, it does prejudice people who are wrongfully convicted. They're in a catch-22. If they say they're innocent, which they are, then they are treated worse than if they plead guilty. That's a danger. We shouldn't have that, just because it creates some incentive that we don't want to create. It's not necessary to have it here, and, really, it may have some dangerous consequences for some people in jails, not only in the United States but elsewhere in the world. As you know, the list of countries is quite wide.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Des Rosiers.

We'll now move to the government side.

Mr. McColeman, please.

[Phil McColeman, Conservative, Brant, ON]

Thanks to all of you, first of all, for being here and for bringing your expertise. Obviously, it's very appreciated. There's a lot of depth in what you've presented.

Leading into today's session we were provided with an outline from our Library of Parliament. I want to refer to just one section of it, if I might. It's what they prepared in terms of giving us a briefing coming into this. I will quote this for you:

A total of 1,351 Canadian offenders were transferred to Canada between 1978 and 2007. Of these, 1,069 (79%) were transferred from the United States. The other countries from which the most Canadians were repatriated were Mexico (59 offenders, or 4.4% of transfers), the United Kingdom (33 offenders, or 2.4% of transfers)....

There were 12 from Peru, Thailand had 17, Venezuela had 17, Cuba had 16, and Costa Rica had 14. Then, says the report, “Fewer than 10 offenders were repatriated from any other country.” That's the end of the quote from the report from the Library of Parliament.

So clearly, the vast majority of offenders we're dealing with here offend in the United States. In comparison, a total of 124 offenders were transferred out of Canada between 1978 and 2007. Of these, 106 offenders, or 85.5%, were transferred to the United States.

I think it's important to note that there were 106 sent to the United States and 1,069 brought back from the U.S. over the same period. The International Transfer of Offenders Act, as it currently exists, requires the minister to consider whether the foreign country's prison system poses a threat to “the offender's security” and “human rights”. I guess I would ask each one of you, as lawyers involved--maybe Mr. Conroy can start--if that's correct. Is that taken into consideration?

[John Conroy]

No. Usually what I see in the material is that they say, “Oh, it's the U.S. The U.S. is a first world country and therefore its prison system wouldn't threaten the security of people.” That, of course, is completely false. They just closed down California City because of all the violence. We've got a place called Beaumont, in Texas, that they call “Bloody Beaumont” because there's so much violence and gang warfare going on.

The security of Canadians in U.S. prisons is not taken into account; it's assumed that the security is okay. And if you look into some of the things that go on in some of the other prisons, such as in Japan and stuff like that, you'll find it's even worse.

But remember, the purpose of the act is to facilitate reformation and rehabilitation. It doesn't surprise me there are not that many Americans who are going back to the States, because that's not one of the purposes of continued imprisonment in the United States; it wouldn't meet the purposes of the act. Whereas coming back to Canada...coming back from a country that doesn't rehabilitate to a country that does meets the purposes of the act.