Public Safety Committee on Nov. 15th, 2010

[Phil McColeman, Conservative, Brant, ON]

My sense of the new proposed act, the one we're studying, is that it would strike a different balance in terms of the determinations. You've obviously presented testimony today to say that's not appropriate.

In fact, I believe Mr. Waldman would suggest that the current act is not appropriate because it violates the charter of human rights. Is that correct?

[Lorne Waldman]

That's correct. Most of the criteria in section 10 violates section 6, in my opinion.

[Phil McColeman, Conservative, Brant, ON]

What you're saying, just so I can clearly understand it--I'm not a lawyer--is that the current act is not good because it violates the charter rights of people who offend outside of the country.

[Lorne Waldman]

Canadian citizens have a right to enter into Canada. If that right is denied to them, that's a prima facie violation of section 6. Any provision in the legislation that takes into account factors that are not connected to whether or not the transfer would endanger public safety or national security, in my view, is unconstitutional. That applies to the current act and to the proposed bill.

[Phil McColeman, Conservative, Brant, ON]

So your opinion, sir, if I'm to understand this in a more common person's terms, is that no matter what the offence in the other country, no matter how grievous, how horrific, etc., that person who has been convicted has a right under the charter to return to Canada upon application. Is that correct?

[Lorne Waldman]

The first step in every case would be for the foreign state to agree to send the person back. There are instances where states refuse to send people back, and if that's the case, then section 6 is not engaged. It's only engaged at the point where the Canadian citizen has a right to come back to Canada.

Remember, Canada routinely deports people who are convicted of very serious crimes. I've seen people convicted of murder who are deported after four or five years. They get an early parole for deportation purposes and they are sent back to other countries. Those countries have to take back people who are convicted of the most serious crimes in Canada because they are citizens of that country. Under international law, you have to take back a person who is a citizen of your country.

With regard to the Canadian who is convicted of a heinous crime, in whatever other country, once the foreign state decides to send him back, we have to take him. What we're saying is that it's better to take him back while he's still serving his sentence, so we can have some control over him, rather than wait until his sentence is over and have him dropped at our border.

I think that's the point we're making.

[John Conroy]

We need to have the act, though, or something, simply to determine, first of all, whether the person is a Canadian citizen, so we don't have non-Canadian citizens trying to come to Canada. Secondly, we have to make sure it's an offence in both countries. Obviously if somebody is given the death penalty in the United States, we can't administer that sentence in Canada.

The sentence and the offence, the double criminality principle, which is in international law--we have to at least meet those, so the person isn't coming to the border saying “I have my right to enter”, but they're asking to come back to serve their sentence. We have to have some control because they're coming into our correctional facilities. There has to be some communication, and so on, in relation to that in order to facilitate the transfer.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Conroy.

We'll now move to Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you, Mr. Chair.

Thank you all for coming.

Being the fifth person to ask questions, obviously some of this will be repetitive, because the flaws in the bill are kind of obvious.

Mr. Waldman, I'd like to start with you by saying, as a fellow lawyer, that I would like to mention section 6. It is quite clear that there is a charter right to return to Canada. The way this really applies is that at the conclusion of a sentence, the Canadian citizen has the constitutional right to return to Canada.

I'm looking at the title of this proposed legislation: “Keeping Canadians Safe”. I frankly challenge any of you to think of how this legislation would actually help, as I say, in keeping Canadians safe. I don't know if you'd be able to think of something. This person, the convict, is going to come back to Canada, assuming the person is released from jail. Especially when you have foreign jurisdictions, lack of rehabilitation, or the absence of even criteria for that, how does it make any logical sense to any of you that if a prisoner is going to come back to Canada at the conclusion of a sentence anyway, we shouldn't have some control over the rehabilitation here in Canada, so that when the person is released into the general population, he or she will hopefully have improved and hopefully Canadians will then be safer?

How does this make any sense?

[Charis Lynn Williams]

I can tell you, in the case of my brother, that it is going to happen. John took it to Federal Court. The current minister was given 45 days to reconsider. It was then approved after reconsideration. On December 15, my brother will cross the Canadian border and be brought into Canadian custody. He will be processed. As a first-time, non-violent offender, he'll be in what I understand is a statutory release program. He has received zero rehabilitation, and he will return to Canada and be released into the population without having anything resembling rehabilitation.

[John Conroy]

You should know that the statutory release for the transferred offender is different from what it is for a Canadian offender. Generally, if a person is sentenced in Canada—let's take nine years as a sentence—at three years he or she would be eligible for full parole. It would be six months before that for day parole, unless the person is a non-violent offender, which is at one-sixth. The next step is at two-thirds, which is something called statutory release. There is provision to keep you in until warrant expiry.

A transferred offender, though, may be past that two-thirds. The person will still remain in custody, because statutory release for a transferred offender under the act is two-thirds of what is left, so it only kicks in when he or she arrives back. It's delayed statutory release.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Mr. Waldman, did I see you trying to get in on this one earlier?

[Lorne Waldman]

I'll cede to Mr. Calarco.

[Paul Calarco]

I wanted to follow up on one point of your question, Mr. Kania.

One of the reasons this does not protect Canadians is that it specifically does not provide protection for victims of crime. At present, as has been stated a number of times, the offender will come back, and there will be no controls over that person. If a person comes back when there is a sentence still to be served, not only is he or she subject to Canadian programs for rehabilitation, but the Canadian authorities will have much more information about that person and will be able to determine whether there should be post-sentence action taken. For example, they can use subsections 810(1) and 810(2) of the Criminal Code to ensure that there are peace bonds against the person and that appropriate police authorities in whatever jurisdiction the person is going to settle are notified that this person is going to be released so that they can watch him or her. That simply is not provided for in this legislation.

[Andrew Kania, Liberal, Brampton West, ON]

Quickly, on point number one, in terms of a public safety analysis, I'd like to point out that we're talking about persons being taken, for example, from the United States, a foreign jurisdiction, brought back to Canada, and put back in jail. They are not taken from a jail and released into the general population. So when it comes to the public safety issue, frankly, I have a difficult time understanding that.

Second, Mr. Conroy, were you involved in this Getkate case?

[John Conroy]

Yes, I was counselling that.

[Andrew Kania, Liberal, Brampton West, ON]

I'm going to look to parts of the reasoning here, but in essence, the minister made a decision, according to the judge, “contrary to the evidence and to the assessment and recommendations by his own department”.

I am looking at the amendment here that would change it from “shall” to “may” and would put the discretionary clause for the minister--“any other factors that the Minister considers relevant”--at the end. For me, what I see is the government trying to get around having to follow the law and trying to get around judges who have told them that they are doing the wrong thing. Is that essentially your assessment?

[John Conroy]

Yes, and you use—

[The Chair, Conservative, Kevin Sorenson]

We're out of time on that question, sorry.

We'll move to Mr. Lobb, please.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Thank you, Mr. Chair.

Thanks to the guests for coming.

Mr. Conroy, I think in your opening remarks you talked about a pile of these files sitting on the minister's desk. Was that what you mentioned or...?

[John Conroy]

The delay between the time the file has reached the minister's office and then a decision was made in some cases has taken two to three years. There was a huge backlog. I understand the current minister has tried to catch up on the backlog. The people at International Transfers were muzzled and prevented from telling us when the file left the minister's office, I suspect because the minister was concerned and maybe a bit embarrassed, I hope, about how long it was taking to make essentially a simple decision.

[Ben Lobb, Conservative, Huron—Bruce, ON]

So you'd be well satisfied if it were all caught up, which is the case today?

[John Conroy]

Well, it isn't all caught up. I have 50 cases in my office and I have at least 15 that are still in the process.

[Ben Lobb, Conservative, Huron—Bruce, ON]

But they may not be sitting on his desk; they may be somewhere else.

[John Conroy]

Yes. If you're telling me the minister is caught up, I'm very pleased to hear that. I have at least 10 new cases filed, and I'm sure some of them came from those decisions.