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 When an offender has been rehabilitated, not only does that person no longer represent a threat to the well-being of our society, but he or she also becomes a contributing member of our country.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.