House of Commons Hansard #97 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was airports.

Topics

Motions for Papers
Routine Proceedings

3:20 p.m.

Liberal

Geoff Regan Halifax West, NS

Mr. Speaker, the documents requested cannot be released pursuant to section 69 of the Access to Information Act. I normally would ask the hon. member to withdraw his motion but I think you might find the consent of the Minister for International Trade to put the matter over for debate.

Motions for Papers
Routine Proceedings

3:20 p.m.

Papineau—Saint-Denis
Québec

Liberal

Pierre Pettigrew Minister for International Trade

Mr. Speaker, I ask that this Motion for the Production of Papers be transferred for debate.

Motions for Papers
Routine Proceedings

3:20 p.m.

The Speaker

The motion is transferred for debate pursuant to Standing Order 97(1).

Motions for Papers
Routine Proceedings

3:20 p.m.

Liberal

Geoff Regan Halifax West, NS

Mr. Speaker, I ask that the remaining Notices of Motions for the Production of Papers be allowed to stand.

Motions for Papers
Routine Proceedings

3:20 p.m.

The Speaker

Is it agreed?

Motions for Papers
Routine Proceedings

3:20 p.m.

Some hon. members

Agreed.

The House resumed from May 5 consideration of the motion that Bill C-33, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, be read the second time and referred to a committee.

International Transfer of Offenders Act
Government Orders

May 7th, 2003 / 3:20 p.m.

Progressive Conservative

Norman E. Doyle St. John's East, NL

Mr. Speaker, I am pleased to speak today to Bill C-33, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences.

On behalf of the member for Pictou—Antigonish—Guysborough, in whose name I am making these comments today because he could not be present, we will support the bill in principle, but closer examination will have to take place on the bill.

As with all legislation that passes through the chamber, there is always room for improvement.

As a party, we have clearly stated that we are not opposed to the proposal in the bill and at this stage we can support it in principle. However we are cognizant of the fact that changes to the legislation will be needed. There can be no doubt that we will introduce amendments to the legislation at committee stage.

I am disturbed by the lack of consideration the government has given to victims of offenders. I would draw members' attention to clause 8 of the legislation which seeks to ensure the consent of those involved in a transfer.

Subclause 8(1) defines the parties involved as “the offender, the foreign entity and Canada” but it does not mention victims.

Once again the government has done everything possible to ensure the rights of the criminal but nothing to denote the importance of the victim.

All too often government seems more concerned with the incarcerated than with those who have suffered at their hands. At the very least, the minister should be directed to consider the wishes of the victims, or their families, when instituting the initial stages of a transfer.

Official recognition of those who have been wronged should be included in the bill, and the portion of the legislation that deals with consent actually presents the obvious opportunity to do so.

The general perception out there of our correction system is that it is soft on criminals, and this impression is not without merit. In fact, there have been a number of extremely high profile cases in which offenders have been released early on parole only to reoffend, committing the most heinous of crimes.

As of this time last year, the government was facing over 30 lawsuits based on cases where offenders had been released early only to reoffend almost immediately.

While this does not speak directly to the bill before us now, it should be put on the record that the government is willing to spend over $100 million a year on a long gun registry that does not save lives, yet remains remiss in establishing a victims' rights office.

Not only does the legislation completely ignore the rights of the victims and their families, but it allows the offender the ability to stop the transfer should he or she not wish to be moved.

Subclause 8(2) states:

A foreign offender—and, subject to the laws of the foreign entity, a Canadian offender—may withdraw their consent at any time before the transfer takes place.

This could present long term problems for our already overburdened correction system. It is hard to imagine someone facing a life sentence for murder in this country who would want to be transferred to a prison in a foreign land where the conditions of incarceration may not be as desirable.

When discussing this clause the minister stated:

The prospects for an offender's successful institutional adjustment, rehabilitation and community reintegration would likely be compromised if an offender were forced to transfer against his or her will.

Again I would draw attention to the fact that the government seems overly concerned with the rights of the offender. While all benefit when rehabilitation occurs, we have to recognize that in some cases the goal of rehabilitation is not attainable and we must therefore concentrate our efforts on the protection of society.

If we are to consider the rights of the offender, at the very least we should give equal weight to the rights of the victim and his or her family.

On the surface, setting up legislation that would allow for a quick transfer of Canadian criminals abroad to serve their time in our own institutions does not seem to be without its merit. I would like to draw to the attention of the House clause 33, which defines what a foreign entity is. The clause reads:

In sections 31 and 32, “foreign entity” means a foreign state, a province, state or other political subdivision of a foreign state, a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of a foreign state or a territory or other entity, including an international criminal tribunal.

What this clause does is attempt to define any and all entities which Canadian officials may or may not be interacting with in terms of seeking a transfer. This clause is defining the definition of acceptable authorities with which the Minister of Foreign Affairs can deal in terms of seeking a transfer. However, it is clauses 31 and 32 that compel the minister to act.

Clauses 31 and 32 essentially provide the minister with the ability to supersede the recognized authority of a sovereign state should he or she find a willing accomplice at a local or what we may term a municipal level, should that country not have an official agreement with our country.

To clarify that point, this legislation allows the Minister of Foreign Affairs to enter into an administrative arrangement with a foreign entity for the transfer of an offender in accordance with the act. The ability of one person to interact in an official capacity with another official from another country is one which should be closely looked at. Upon cursory examination, it seems this legislation gives the minister an unprecedented, unbalanced amount of power.

I cannot stress enough the importance the nature of the offence carries in terms of what is acceptable or unacceptable. In order to fully comprehend what it is that needs to be done, we will need to accept the societal norms or at the very least a sense of shared values in terms of sentencing duration. Justice in one country does not equal the same measure of justice in another country and this I do not believe to be transferable.

But while differences of opinion will ultimately vary, there are those who will be pleased that Canadians serving sentences abroad will now have the opportunity to serve out their sentences within the confines of our own system and with all of the rights afforded Canadians.

With the bill the government is attempting to introduce legislation that would allow Canadians convicted in jurisdictions such as Hong Kong to return to Canada to serve their foreign sentences.

International Transfer of Offenders Act
Government Orders

3:25 p.m.

An hon. member

Taiwan.

International Transfer of Offenders Act
Government Orders

3:25 p.m.

Progressive Conservative

Norman E. Doyle St. John's East, NL

Taiwan. The media release states, “Foreign nationals from such jurisdictions convicted in Canada would be able to serve their sentences in their home countries”.

The wording of clause 30 is also very interesting. Subclause 30(1) states:

A Canadian offender shall benefit from any compassionate measures--including a cancellation of their conviction or shortening of their sentence--taken by a foreign entity after the transfer.

On the surface, this portion of the act would seem to suggest that if an offender found guilty of murder in another country was transferred and then that country reviewed the case and found the offender not guilty, he or she would be notified and released. However, closer examination of the wording reveals that this clause under “Compassionate Measures” really allows the Canadian government to take action on compassionate grounds after the prisoner has been returned, the key phrase in this subclause being “any compassionate measures”.

Without a clear definition of the clause the interpretation is left open to those who would determine the sentence duration of the criminal. If the intent of this portion of the bill was to make sure an offender transferred to his or her home country was kept abreast of any reduction of their sentence in the place where the crime occurred, the clause would have read: A Canadian offender shall benefit from any foreign compassionate measures. It is a subtle difference in wording, but one which clearly defines the purpose of the clause.

When dealing with foreign entities I believe we need to be clear and this portion of the bill needs to be re-examined. If what we are saying is that we are going to determine who should or should not be punished or if we are going to be determining the duration of a sentence, regardless of what the country in which the crime was committed has determined, then we need to be up front. We should also define clearly what “compassionate measures” means. Do we include the wishes of the family? Do we consider the circumstances in which the prisoner has served his or her time?

Once again I believe it is important to have measures in place to allow us to deal with this situation, namely, the transfer of prisoners from one country to another, but I also believe we need to act in the best interests of Canadians. While we support the legislation in principle, we need to be cognizant of the fact that regardless of what the government passes this type of legislation only works if we have reciprocal agreements.

International Transfer of Offenders Act
Government Orders

3:30 p.m.

Liberal

Jim Karygiannis Scarborough—Agincourt, ON

Madam Speaker, I am pleased to rise today to participate in the discussion of the government's initiative to update the Transfer of Offenders Act. It is somewhat surprising that we are continuing to debate on this matter, as the proposals appear to be both necessary and straightforward. Nonetheless, I have reviewed the speeches of the hon. members opposite to see if the concerns they have raised are valid. Those that are well founded could be instructive to the parliamentary Standing Committee on Justice and Human Rights in conducting a closer examination of these measures when we pass them along.

As I have said, Bill C-33 is also important and necessary but routine legislation. Transfers between Canada and other countries are not numerous. Every year about 85 Canadians are transferred to Canada under a treaty or a multilateral convention for transfers of offenders. However, the comfort that transfers provide to offenders and their families and the greater opportunity that is given to offenders to be safely and gradually reintegrated into their communities by being allowed to serve their foreign sentence in their home country cannot be denied. It will impact upon the international correctional and criminal justice communities in positive ways in which we as Canadian legislators can take pride.

The proposals continue the spirit of the original Transfer of Offenders Act in applying the rule of law in a balanced way. The new act will respect foreign laws and practices while holding up an example of fairness and humanity. It will not, I must emphasize, alter the Canadian correctional system. Members of the official opposition seem to see any initiative involving corrections as a threat to their blanket, get tough approach to all offenders. While the measures currently before us have nothing to do with the administration of sentences in Canada, these hardliners insist, against all evidence provided by thorough research, that longer sentences served in more punitive conditions will somehow turn offenders into productive citizens.

In their recent remarks, they appear to be saying that it would be somewhat beneficial to society if Canadians who are convicted of offences abroad are forced to serve out their sentences in foreign jails where conditions may be inhumane. I must ask them how exactly the denial of transfer of offenders to the Canadian system, where they may benefit from programming, guidance and family support, would better serve Canadians than the return of these offenders, uncontrolled and untreated at the end of their foreign sentences.

The proposed bill maintains most of the purposes and principles of the Transfer of Offenders Act as proclaimed in 1978. Upon due consideration, it might be seen that it is more comprehensive than its predecessor in dealing with a variety of circumstances not foreseen when the original statute was drawn up.

It is apparent from the remarks that my hon. colleagues are confusing extradition and deportation with transfers under the Transfer of Offenders Act. That is why I think that at this juncture it is important to explain the differences.

Extradition can be defined as the giving up of a person by a state where he or she is present at the request of another state where the person is accused of having committed or has been convicted of a crime. International law has developed this procedure as a means of extraditing fugitives from justice to the requesting state to be tried or punished for crimes they have committed against its laws.

Extradition to or from Canada is carried out under the Extradition Act. In most circumstances, extradition is not an alternative to transfer under the Transfer of Offenders Act. The person is not necessarily an offender or a foreign citizen of a country where he or she is present, but rather is simply wanted by another jurisdiction for the purpose of criminal proceedings or enforcement of a sentence.

Deportation involves the removal of a non-Canadian citizen from Canada under the Immigration and Refugee Protection Act. A non-Canadian citizen serving a custodial sentence in Canada for a crime committed in Canada may be deported to his or her country of citizenship if the requirements of the act are met.

Additionally, the offender cannot be deported until the sentence is completed or deemed completed by the way of release on full parole or statutory release. This process is an alternative to the proceedings under the Transfer of Offenders Act. However, unlike offenders transferred under the Transfer of Offenders Act, deported offenders are not subject to the Canadian sentence upon return to their country of citizenship. As such, risk management and gradual reintegration of the offender into the home community do not apply to deportation cases. This is why transfers of offenders under the Transfer of Offenders Act are generally considered preferable to deportation.

The Transfer of Offenders Act came into force in 1978. Only technical amendments have been made to the act since that time. There was a need to identify substantive issues and find ways to address them.

As a result, federal officials carried out consultations with 91 private sector and government agencies and then conducted a thorough review of the Transfer of Offenders Act. The review and consultations gave rise to proposals to amend the act that would incorporate traditional international treaty principles, close identified gaps in the act and ensure agreement with other legislative provisions and improve efficiencies.

All treaties that Canada has signed reflect the principles of verified consent. For example, most treaties include a standard provision that requires the sentencing state to give the receiving state an opportunity to verify, prior to the transfer, that the offender's consent is given voluntarily. This is important because, as I said earlier, the prospects of an offender's reintegration into the community would likely be compromised if he or she did not willingly transfer. This is why Bill C-33 would set out the requirement that all reasonable steps be taken to determine whether an offender's consent has been given voluntarily.

Also, treaties signed by Canada reflect certain obligations which are considered essential from a legal perspective. For example, treaties generally include a requirement that countries inform foreign nationals in their respective jurisdictions of the existence and substance of a treaty. This duty is linked to the principles of natural justice and is fundamental to give effect to the treaty. Without knowledge about a treaty, the offender would not be in a position to request a transfer to his or her home country.

Currently, there is no legislation to compel Canada to meet this obligation with respect to foreign citizens sentenced in Canada. To address this gap, Bill C-33 would require that a foreign offender under federal or provincial jurisdiction be informed of the existence and substance of an international transfer treaty between Canada and the offender's country of citizenship.

The rule of dual criminality is satisfied where an act is criminal in one state and has the same general qualification in the other. This is the rule of customary international law and a requirement of most treaties signed by Canada because the enforcement of a foreign sanction for an offence that does not exist in Canada such as adultery could violate essential constitutional principles or contravene protected fundamental human rights. Bill C-33 would set out dual criminality as a condition of transfer.

Continued enforcement, which is recognized in most transfers of offenders treaties, is a method used to make foreign sentences compatible with domestic ones. It is an administrative procedure which allows continuing the enforcement of a foreign sentence in the receiving state according to its domestic laws. This means that although the receiving state is bound by the legal nature and duration of the foreign sentence, the receiving state's conditional release rules apply to the offender. For example, an offender serving a determinate foreign offence in Canada could be eligible for parole after having served one-third of the sentence. Bill C-33 would explicitly incorporate this important procedure in the new international transfer of offenders act.

Currently, there is no legislation requiring that a foreign offender in Canada be informed of the decision not to grant his or her request to transfer to his or her home country. It is vital that the offender be advised of the reasons of a negative decision and given the opportunity to present observations to have the decision reversed. By setting out this requirement, Bill C-33 would ensure consistency with the Corrections and Conditional Release Act, the common law “duty to act fairly” and the Charter of Rights and Freedoms.

No provision is made in the current Transfer of Offenders Act or any other Canadian statute for the international transfer of persons adjudged not criminally responsible on account of mental disorder or unfit to stand trial. Bill C-33 would address this issue by authorizing the negotiation of administrative arrangements with the authorities of a foreign state for the transfer of mentally disordered persons to and from Canada. This change would also further the humanitarian purpose of the transfer of offenders scheme, and provide an example of enlightened practice to other countries. Further, Bill C-33 would ensure that due deference is shown to our provincial partners by making it clear that their consent would be required in all cases under their jurisdiction over mentally disordered persons.

The harshness of imprisonment is greater for citizens incarcerated overseas. At times, correctional systems abroad are ill-adapted to advance the goals of reintegrating foreign offenders into society. In many instances, foreign states cannot accommodate basic needs such as the practice of religion or family contacts.

The government is making every effort to obtain humane treatment for its citizens incarcerated abroad. Such efforts are consistent with the policy of protecting and promoting human rights in Canada and the international community. By providing for the negotiation and implementation of administrative arrangements in addition to regular treaties, Bill C-33 would further contribute to the promotion of human rights. Moreover, there is no doubt that by broadening the category of states and non-state entities with which Canada could transfer offenders, Bill C-33 would better serve the objectives of public protection through rehabilitation and cooperation between states in the enforcement of sentences.

There are many facets to these measures that I have characterized as straightforward. There are other aspects of Bill C-33 to explore but I believe that we have been quite thorough in our consideration of the proposals, and should now leave these matters to the parliamentary standing committee.

International Transfer of Offenders Act
Government Orders

3:45 p.m.

Liberal

John Bryden Ancaster—Dundas—Flamborough—Aldershot, ON

Madam Speaker, I thank my colleague for his excellent remarks. One of the interesting features of this legislation that is new to the legislation is provision to transfer prisioners who may have been terrorists in their original homeland and to negotiate with that homeland to have them transferred back to that homeland. Conversely, when people who have Canadian citizenship are arrested in foreign lands, the bill provides that while they can be brought back to Canada under this legislation, the governor in council has the option of not returning them if there is a security risk, the idea being that the unfortunate reality every country is faced with is the danger that their own nationals may participate in terrorist activities in other lands holding our passports.

I draw my colleague's attention to the situation just recently involving two British individuals who held British passports and who were engaged in a bombing in Israel. That could have been people holding Canadian passports.

Does my colleague agree that it is prudent of the government to insert measures into legislation that protect Canada from inadvertently acquiring an unfair share of people who have committed terrorist acts abroad by bringing them back to Canada to be kept in our jails?

International Transfer of Offenders Act
Government Orders

3:45 p.m.

Liberal

Jim Karygiannis Scarborough—Agincourt, ON

Madam Speaker, it is important that we realize the post-9/11 scenario. The world has changed its way of thinking, has changed our attitudes and the way we conduct business, be it in this House or in other areas.

There is the possibility that Canadian citizens might be involved in acts about which we should not even be thinking. However, if Canadian citizens are involved in such acts abroad, it is our responsibility to ensure that there is due diligence done and that they are brought home to face the consequences here.

However, as I said, consideration has been given and this is why we should take this bill to the parliamentary standing committee to discuss such items, as brought forward by my colleague, and other ideas that can arise.

International Transfer of Offenders Act
Government Orders

3:50 p.m.

Liberal

John Bryden Ancaster—Dundas—Flamborough—Aldershot, ON

Madam Speaker, I am delighted to have a second opportunity to pose a question. One other feature of the bill that I certainly have been impressed by is the fact that it has made adjustments in the legislation to the recent youth criminal justice law which has finally come into force in Canada after much debate in the House.

I wonder if the member could comment on the principle of applying the ideas in our youth criminal justice legislation, which basically is designed to try to rehabilitate youth at the same time as protecting the interests of the public, and applying these principles to those young people who may be arrested in foreign countries, and the bill provides for returning them to Canada so they would be subject to Canadian punishment.

International Transfer of Offenders Act
Government Orders

3:50 p.m.

Liberal

Jim Karygiannis Scarborough—Agincourt, ON

Madam Speaker, I cannot but forget a few years ago a picture of two young ladies in their early teens who had committed a crime in the Caribbean and they had to undergo a prison sentence. This legislation would give the opportunity for us to bring our children who have committed crimes, which are minuscule crimes in other countries, back to Canada so we can assist them and put them on the right track.