Mr. Speaker, the purpose of the bill now before the House is to replace the Transfer of Offenders Act, which has been in force for over 20 years. The basic objective of the solicitor general's proposal is still the same as the one pursued by the old act that would be replaced, with the exception that the list of countries with which the Canadian government has entered into agreements would be updated.
Thus, Canadians convicted abroad would still be allowed to come back here to serve their sentences and foreigners convicted in Canada would still be allowed to return to their country to serve their sentences.
The foundation of this bill is to set out how the transfer of offenders to Canadian correctional institutions would be done, while ensuring the compassionate nature of the process. It is important to mention at this point that the Bloc Quebecois supports such a measure.
The bill also deals with with the equivalency of foreign and Canadian sentences. In this regard, it will be interesting to follow the progress of this bill, particularly in light of the justice minister's decision, last week, not to appeal the decision of the Court of Appeal of Quebec concerning the new Youth Criminal Justice Act.
At this time I would like to point out that the Bloc Quebecois agrees in principle with Bill C-33. Nevertheless, this support should not be considered carte blanche for the government. As is customary, we reserve the right to present amendments to the bill in order to improve it.
As an example of a constructive amendment the Bloc might suggest, I give you the delicate issue of human rights and the unhealthy conditions in the prisons of certain countries. From this point of view, it seems obvious that we should repatriate criminals who otherwise would have to serve their sentences in inhumane conditions.
These transfers must be carried out in a spirit of collaboration with the states that are signatories of treaties and administrative agreements. It is essential to establish a quick, simple administrative framework for transferring criminals. The same would be true for foreign nationals serving a sentence in Canada.
Nevertheless, we have serious reservations when it comes to enforcing certain provisions of the Youth Criminal Justice Act. Despite the recent opinion of the Quebec Court of Appeal in this matter, the federal government has decided to go ahead and sentence young people of 14 and 15 as adults. This is a concrete example of our reservations with respect to this bill, and we intend to explore this further when the bill is examined in committee.
Thus, the bill proposes major changes in the current act, particularly with respect to simplifying the administration of justice, rehabilitation and social reintegration for criminals who are serving sentences in Canada or their countries of origin. It also clearly describes the conditions and implementation mechanisms. It is entirely commendable that the bill aims at simplifying administrative procedures and the Bloc Quebecois will support this principle.
It is also important to mention the provisions related to the notion of the consent of the foreign entities under the legislation. In addition to the eligibility criteria outlined in clauses 4 and 5, clause 8 clearly stipulates that the transfer requires the consent of the foreign entity, Canada and of the offender. Similarly, clause 9 states that certain rules will apply in terms of the consent of Quebec and the provinces. Accordingly, Quebec or the other provinces may and must express their consent before any steps are undertaken.
The minister responsible for implementing the act, the Solicitor General, is given a considerable amount of responsibility with respect to assessing the factors to ensure transfers are carried out properly. As such, several elements must be taken into consideration and recent events shed some very relevant light on this matter. One of these elements to be considered is the assessment of the threat to security that the transfer of a criminal to Canada may pose. The reverse seems to be the case when it comes to the—let us call it accelerated—extradition of Holocaust denier Ernst Zündel to Germany. The government's actions must be guided by a multitude of factors, and in the case of foreigners who are found guilty in Canada, the minister must take into consideration the risks involved in their detention and future release when considering and assessing transfers.
In order to avoid the transfer procedure being used to shorten or even cancel sentences, the bill contains specific provisions to ensure the continuity of sentences imposed on offenders. Thus, the rule of law will be respected and will be sufficiently consistent with the criminal law of the countries involved.
The case of young offenders is also dealt with specifically in the wording of the bill. Specific provisions apply in the cases of the transfer of adolescents. In terms of these cases, the comments of certain experts could certainly shed some needed light, particularly given the recent judgment of the Quebec Court of Appeal.
It is our hope that the Solicitor General, as minister responsible, will make the necessary changes to the bill to reflect the requirements of the charter, pursuant to the decision rendered by the Court of Appeal.
As I mentioned in my introduction, it is also important to raise the sensitive issue of human rights and the humanitarian considerations that we must keep in mind. These issues are so important that we find it curious, to say the least, that there is only one clause dedicated to the issue in the bill.
What are the purposes of such transfers? First, social reintegration. With the development of increasingly sophisticated means of communication and transportation, it becomes simpler to implement a new administrative framework for international transfers. Criminals also benefit from our increasingly open borders and the porosity of our various systems, and we therefore congratulate the government on developing modern methods in response to these specific issues.
Rehabilitation is as important an issue as reintegration, and both are at the core of this bill.
Criminals are also transferred for humanitarian considerations. The countries involved will take into consideration communication difficulties related to language, the alienating effect of cultural differences and local customs, as well as the lack of contact with family. We can therefore deduce that repatriation of criminals has a certain interest both for offenders and governments.
The second objective relates to sovereign equality. Another issue relating to the transfer procedure consists in respecting the rights of states. There is a recognized principle that the sovereign equality of states must take precedence. Moreover, article 2 of the United Nations charter stipulates that the organization is based upon the principle of the sovereign equality of all its members. This is, moreover, the reason why the agreement of the countries involved is required by this bill and the transfer also requires the agreement of the offender.
The Council of Europe adopted its Convention on the Transfer of Sentenced Persons in 1983 at Strasbourg, a place where I have lived, you will be glad to know, Mr. Speaker.
Certain parallels might be drawn between the Council of Europe convention and the bill before us here. First, there is the need for collaboration between the states and the necessity to facilitate the social reintegration of offenders.
It is also important to point out that the convention rigorously respects the national law of each member country. Article 13 of the convention states that the sentencing state alone shall have the right to decide on any application for review of the judgment. Thus, the humanitarian aspect is clear in the provisions and the explanatory passages of the convention.
Let us also talk about mental disorders. Several provisions of the current bill are related to procedures concerning the transfer of people declared not criminally responsible on account of mental disorders. We will have to pay particular attention to this part of the bill to ensure that these provisions reflect as best as possible the sensitive nature of the sentences handed out to these particular criminals.
The Bloc Quebecois still has some reservations concerning the bill, particularly about clause 18, which says:
A Canadian offender is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act if (a) the Canadian offender was, at the time the offence was committed, from 14 to 17 years old; and (b) their sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence.
We believe that it is very likely that 14- or 15-year-old youths would receive far too heavy sentences compared to the ones that they would have received in Canada.
I repeat that the Court of Appeal of Quebec gave its opinion in the case of the Government of Quebec's order regarding the reference concerning Bill C-7 on the youth criminal justice system. During the hearing of this case, Quebec's Attorney General said that the breaches of freedom and psychological welfare that result from criminal charges against a minor are exacerbated by the system that presumes subjecting youth to adult sentencing. This procedure would violate the presumption of innocence, guaranteed under paragraph 11( d ) of the Canadian Charter of Rights and Freedoms and recognized by the Supreme Court as a fundamental principle that is protected by section 7.
Paragraph 11( d ) of the Canadian Charter of Rights and Freedoms establishes the rightto be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Quebec's Attorney General also argued that:
The procedures involved would be similar to those used in declaring someone a dangerous offender, in that they cause similar harm.
The attorney went on to say:
The Youth Criminal Justice Act would therefore violate the freedom and safety of adolescents, which contravenes the principles of fundamental justice in that it does not specifically require that the factors the court must weigh when determining whether an adolescent should be subject to adult sentencing must be proven beyond all reasonable doubt.
This refers to subsection 73(1) of the act.
The Attorney General of Canada argued that:
The new legislation, which is an exception to the adult criminal system, is in line with an approach that balances the interests of society and those of adolescents in such a way as to make the taking into account of the specific situation of adolescents a major consideration.
In response to the question raised by the Attorney General of Quebec, whether the elements set out are indeed principles of fundamental justice, the five judges of Quebec's Court of Appeal agreed that they were.
On page 63 of this opinion, we read the following:
The expression “fundamental justice” in the context of section 7 is not limited to rules of procedure, but includes substantial principles. This means that to withstand charter scrutiny, any psychological security violation must be fundamentally warranted not only procedurally but also in relation to the objective, in accordance with the basic tenets of our legal system.
The Quebec Court of Appeal judges added that there is a wide consensus about these elements because of the essential role they play in the Canadian legal system. Their vital importance has been recognized ever since the very first legislation on the subject-matter. Over time, the details were worked out to meet the particular situation and needs of adolescents more and more specifically.
In the decision in R. v. M. (S.H.) (1989), 2 S.C.R., on page 446, Justice L'Heureux-Dubé wrote:
[This brief legislative history of] the provisions of the Young Offenders Act amply demonstrates that for nearly one hundred years Parliament has committed itself to the separate treatment and rehabilitation of young persons involved in the criminal process. The underlying philosophy has been from the beginning that it is in society's interest to assist young offenders “to strengthen their better instincts”. An attempt is made through the legislation to “prevent these juveniles from becoming prospective criminals and to assist them to become law-abiding citizens”.
Unfortunately, this government has chosen to ignore this legacy and expertise by doing away with the Young Offenders Act and replacing it with a piece of legislation that is pretty shaky in terms of its wording, as demonstrated by the Court of Appeal of Quebec, and questionable where its rehabilitation objectives are concerned.
As the members are aware, the Bloc Quebecois took a clear stand against this new legislation, which disregards nearly 100 years of history and practice, and opens the door to challenges, and the Court of Appeal of Quebec recently proved us right. We have continued to be vocal opponents of this poorly worded legislation whose sole purpose was to clumsily reassure the public.
In its opinion, the Court of Appeal stated:
Although the presumption may be set aside and the court may retain greater discretionary powers with respect to the appropriateness of imposing such a sentence rather than an adult sentence, it is no less true that the legislator has clearly indicated in sections 62 and 72 that the usual sentence applicable to designated offences is that imposed on adults guilty of the same offences.
It also sends a clear message to the population as a whole that, in general, adolescents are dangerous criminals if they are 14 years of age or older when they commit certain offences. In other words, applying adult sentences has the effect of stigmatizing the adolescent guilty of a designated offence.
Bloc Quebecois members have spoken many times on Bill C-7, the young offenders legislation, questioning its real purpose. We have questioned the relevance of the purpose of this legislation. It was surprising to find that the government really thought it could deal with juvenile crime by giving the public a false sense of security, when the real issue was to lower the crime rate among young people.
At the time, Bill C-7 had its objectives backwards. The government had completely forgotten whom this bill was for. Should we rehabilitate young offenders or should we give an illusion of protection to society, based on the leveling of the enforcement of the adult legislation?
However, if we consider clause 18 of Bill C-33 that we are discussing, the same questions remain.
The Quebec Court of Appeal has provided several responses that, it must be said, rankle the Liberal government. The Court of Appeal is categorical. The imposition of an adult sentence is not essential to achieving the goal of the Youth Criminal Justice Act.
On page 69 of the opinion, the Court of Appeal judges analysed these provisions and concluded, and I quote:
—in this respect, clearly, the new legislation presumes that adult sentences be applied as a general rule. From now on, this legislation places upon minors the onus of demonstrating why an adult sentence should not be imposed. Supreme Court case law is however clear: Section 7 of the Canadian Charter of Rights and Freedoms states that, during sentencing the onus is on the Crown to establish beyond all reasonable doubt the aggravating circumstances surrounding the commission of an offence. Paragraph 724(3) (e) of the Criminal Code requires the prosecutor to establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. Subsection 72(2) of the WCJA, therefore, violates the rights guaranteed under the section 7 of the Canadian Charter in that it places on the young offender the onus of proving the circumstances surrounding the commission of the offence, the lack of a previous record at the time of the exemption, as well as the other factors listed in subsection 71(1). The onus should instead be placed on the prosecutor who wants the court to impose an adult sentence to show the fitness of such claims in terms of the factors set out in subsection 72(1), once a request has been made. The prosecutor should also have to prove the existence of facts justifying the imposition of an adult sentence. Once this has been done, the courts could decide whether to impose such a sentence on a young offender.
The judges added that even the presumption of this imposition, and I quote:
—is a violation of the right to freedom and the psychological freedom of adolescents, which does not conform to the principles of basic justice.
In conclusion, I will say that the Bloc Quebecois will obviously work very hard in committee to make sure our various concerns are dealt with and also that the recent opinion of the Quebec Court of Appeal on the Young Offenders Act is taken into consideration.
We support the bill in principle but we ask the government to be open. We want criminals to be returned, especially knowing what the conditions are in prisons in some countries. But such transfers must be done in a spirit of close cooperation between the states signatories to treaties and administrative agreements.
I thank you for your attention and I am looking forward to the committee review.