Evidence of meeting #39 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 person.
A recording is available from Parliament.
4:55 p.m.
Conservative
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Following up on that point, so that I'm certain and Ms. Mourani is certain about this point--and it's a very important point--unless the foreign jurisdiction consents to the transfer, that person is not even eligible to apply. Is that not correct?
4:55 p.m.
Lawyer, As an Individual
Well, no. They're eligible to apply, but if the consent isn't given, they're not coming. They will not go forward.
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
So a person on death row in any of the U.S. jurisdictions that has capital punishment would not be eligible to transfer.
4:55 p.m.
Lawyer, As an Individual
Well, they're not eligible because the sentence can't be administered. Remember the dual criminality principle in international law: the offence and sentence have to be an offence and sentence in Canada, because we convert them to Canadian sentences.
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I'm clear on that. I wasn't quite sure Ms. Mourani was.
Mr. Waldman, you indicated that you believed these proposed amendments would violate section 6 of the charter.
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
But have you not already stated, and have you not argued recently before the Federal Court, that you believe the existing act is contrary to section 6 of the charter?
4:55 p.m.
Lawyer, Canadian Civil Liberties Association
That's right. Last month in the Federal Court of Appeal we made the argument that certain parts of the existing act violate section 6 because they require the minister to take into account factors that are irrelevant to whether or not the transfer would endanger public order or national security.
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
So you believe the whole mechanism is unconstitutional.
4:55 p.m.
Lawyer, Canadian Civil Liberties Association
No. No, no, no. On the contrary, I believe the mechanism is vital, it's constitutional, but I believe the scope of the minister's discretion to refuse is very limited. In other words, the act is necessary. It provides a mechanism for Canadians to exercise their right to return, but the only ground upon which the minister should be able to refuse a transfer under the act is if the actual transfer endangers public order or national security.
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Okay.
Mr. Calarco, I want to talk to you about discretion. The first line of part IV of your brief states, “Bill C-5 would give the Minister of Public Safety broad and unconstrained power to deny Canadian offenders return to their home country to serve their sentences.” You believe that to be true, I take it.
4:55 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
Yes, sir.
4:55 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
But is it not also true that the proposed amendments also give the minister unfettered discretion to allow offenders to return home when a minister is so disposed?
4:55 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
I hardly think that's the issue.
The situation is that under the present legislation the minister can look at those criteria and bring the offender home. What this does is it permits the minister almost unreviewable discretion, and when we see how this has been applied--Mr. Conroy and Mr. Waldman made some mention of this--you have more and more applications being denied. What is necessary in any legislation, in our view, is certainty as to what criteria are going to be applied.
5 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
But you'll agree with me that there are criteria in the proposed amendments that actually assist offenders who are trying to repatriate. I'm talking about paragraph (g), “the offender's health”; I'm talking about paragraph (k), “whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency”. Would you not agree with me that those factors actually assist an applicant in repatriating back to Canada?
5 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
No, sir, I do not.
First of all, the offender's health is not a determining factor. It doesn't matter if you're ill or robust...as to whether or not you should be able to return to your own country to serve sentence.
You mentioned paragraph (i) as well, “accepted responsibility for the offence”. As Ms. Des Rosiers said earlier, and also as we say in our brief, that means that if a person insists on innocence, if a person has been wrongfully convicted, then that is a reason why the minister would say, “No, you can't come back.”
5 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I understand what that means. But I want you to agree with me that if a prisoner needs medical treatment that's not available to him or her where he or she is incarcerated, they could use paragraph (g) to assist their application to transfer back to Canada. And if a person has admitted culpability, they could use paragraph (k) to assist their application to transfer back to Canada, and a minister has discretion to consider those factors.
5 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
The minister can use those right now. You don't need these amendments to do that, assuming they're everything you wish them to be, sir. Every minister could consider that this is a Canadian, this person is in need of medical care, and the person can be transferred back. You don't need these amendments to do it.
5 p.m.
Liberal
Andrew Kania Liberal Brampton West, ON
Expanding on the logic of Mr. Rathgeber, if they have blue eyes they could use that, because paragraph 10(1)(l) says, “any other factor that the Minister considers relevant”.
5 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
That's untrammelled discretion, which we of course oppose.
5 p.m.
Liberal
Andrew Kania Liberal Brampton West, ON
Right. Exactly.
Going back to where I was when I was cut off, Mr. Conroy, to this case of Getkate, going back a little more in time, the court found that the minister had disregarded the evidence, and specifically indicated that since the reasons articulated by the minister were “contrary to the evidence and to the assessment and recommendations by his own Department”, it was thus referred back to the minister.
I'll repeat what I said before. I'm looking at this and I see the change of the requirement from “must” to “may” in terms of the factors. Adding the factor that I noted just now—“any other factor that the Minister considers relevant”—I see as a clear attempt to get around the jurisprudence, which is clearly out there and which has in essence reprimanded the government for not following, and being fair in terms of following, the statute. I see this as their attempt to allow themselves to do whatever they want without getting any form of judicial review. Does that sound about right to you?
5 p.m.
Lawyer, As an Individual
Well, there will still be a lot of judicial review, I'll guarantee you that, both in relation to section 6 and section 1 of the charter and just general judicial review principles. But I generally agree with you.
And you should know that notwithstanding that court decision in Getkate and Mr. Justice Kelen's remarks about the meaning of threat to the security of Canada, the minister still denied people on that same ground, notwithstanding the court's interpretation of the meaning. He simply said, “I have a different opinion to the court.”
5 p.m.
Liberal
Andrew Kania Liberal Brampton West, ON
I want to be clear. I know there still will be judicial review. But my point was that this statute, in my view, is an attempt to stop successful judicial review. Changing the factors from “must” to “may” and putting this basket clause at the end, saying “any other factor that the Minister considers relevant”, I would say is an attempt to make sure they win judicial reviews and they can get around and do whatever they want. Is that not accurate?
