International Transfer of Offenders Act

An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences

This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.

Sponsor

Wayne Easter  Liberal

Status

Not active, as of Oct. 30, 2003
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Committees of the HouseRoutine Proceedings

October 30th, 2003 / 10:10 a.m.
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Liberal

Andy Scott Liberal Fredericton, NB

Mr. Speaker, I have the honour to present, in both official languages, the eighth report of the Standing Committee on Justice and Human Rights.

Pursuant to its order of reference of Tuesday, May 13, your committee has considered Bill C-33, an act to implement treaties and administrative arrangements on the international transfers of persons found guilty of criminal offences, and has agreed to report it with one amendment.

I have also the honour to present, in both official languages, the ninth report of the Standing Committee on Justice and Human Rights.

Pursuant to its order of reference of Tuesday, April 1, your committee has considered Bill C-20, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, and has agreed to report it with amendments.

If I may, I would like to thank the members of the committee and the staff. This is our fifth piece of legislation in the last two weeks. It is very important legislation and everyone has done very good work. I must say, as the chair, that I appreciated it.

International Transfer of Offenders ActGovernment Orders

May 13th, 2003 / 3 p.m.
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The Speaker

It being 3:02 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-33.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

International Transfer of Offenders ActGovernment Orders

May 7th, 2003 / 4:20 p.m.
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Liberal

Marlene Catterall Liberal Ottawa West—Nepean, ON

Madam Speaker, discussions have taken place among all parties and there is an agreement pursuant to Standing Order 45(7) to defer the recorded division requested on second reading of Bill C-33 until Tuesday, May 13 at 3 p.m.

International Transfer of Offenders ActGovernment Orders

May 7th, 2003 / 3:50 p.m.
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Liberal

Alex Shepherd Liberal Durham, ON

Madam Speaker, it gives me great pleasure to enter the debate on Bill C-33, the international transfer of offenders act.

The founding purpose of the Transfer of Offenders Act , or TOA, is essentially humanitarian. It authorizes Canada to implement treaties with other nations for the return of offenders to their countries of citizenship while still under a sentence for a conviction in a foreign state.

The TOA allows Canada to enforce foreign sentences of Canadian offenders transferred to Canada. This is particularly important where foreign standards of justice and conditions of confinement impose severe hardships on Canadians.

The Transfer of Offenders Act came into force in 1978 following a United Nations meeting at which member states agreed that international transfers were desirable in light of increasing global mobility of individuals and the need for countries to cooperate on criminal justice matters.

The act is based on the humanitarian principle of returning foreign offenders to their home countries to serve their sentences. It authorizes the implementation of international transfer treaties for this purpose.

Since the act's proclamation, Canada has ratified bilateral treaties with countries such as the United States in 1978, Mexico in 1979, Peru in 1980, France in 1984, Bolivia in 1985, Thailand in 1988, Venezuela in 1996, Morocco in 1998, Brazil in 1998 and Egypt in 2000. Negotiations are ongoing to enact treaties with many other countries.

Under the act Canada is also a party to three multilateral conventions, the Council of Europe Convention on the Transfer of Sentenced Persons, 1983, the Scheme for the Transfer of Convicted Offenders within the Commonwealth, 1990, and the Inter-American Convention on Serving Criminal Sentences Abroad, 1993, which allow for transfers between Canada and over 40 countries.

Canadians incarcerated in foreign countries often find themselves facing serious problems coping with local conditions. Cultures are different. There are language barriers. Diets may be poor and there can be inadequate medical care and rampant disease in prisons.

In some countries it is even common practice for the family to be responsible for providing food, clothing and items for personal hygiene. A Canadian serving a sentence under such conditions would be doubly punished by not having access to the basic necessities of life.

Consular officials provide all the assistance they can, but their ability to help is often limited to ensuring that the offender's rights under local laws are protected. Clearly, some of these jurisdictions in some of these places are rural and there may not necessarily always be consular officials close at hand. That is another reason people would find themselves very much isolated in a foreign country.

In addition, offenders imprisoned far from home are isolated from their families and access to the communities to which they will one day return.

The legislation before us today updates the 1978 legislation. It brings it in line with established treaty principles and recognizes current international conditions. In the years since the legislation was passed, only minor technical amendments have been made. But as we all know, the world has changed and we have obligations to ensure that our laws keep pace with the new realities.

At the same time, these proposals will ensure that Canadians who are transferred under the TOA and related instruments will be treated fairly and equitably, according to Canadian values and legal principles, while not being allowed to escape accountability for their offences committed on foreign soil.

To this end, principles that are now expressed only in treaties will be captured in the international transfer of offenders act to ensure that they are respected in future treaties and in individual cases.

One of these principles is the non-aggravation of a sentence. A transfer cannot be used to increase the punishment that has been handed down by a foreign court. Treaties generally provide that the receiving state shall not interfere with a finding of guilt and sentence imposed by the sentencing state. Where modifications in sentence administration need to be made in order to comply with domestic legislation, on no account must the transfer result in aggravation of the length of a sentence. This legislation will reflect this important obligation.

Another important principle is dual criminality. That means an offender can only be transferred if the act for which he or she is sentenced is considered to be criminal both in the country where he or she is convicted and in Canada. We do not incarcerate people in Canada for certain things that are considered illegal in other countries. One example would be adultery. While hardly admirable behaviour, we in Canada do not imprison people for adultery. We would therefore not imprison someone who was found guilty of adultery in another country.

This legislation also clarifies issues related to consent. All parties to an international transfer must consent. The country where the person was sentenced has the right to be aware of how the sentence will be served. The receiving country must of course consent to take over the administration of a sentence. In Canada this also means that where a sentence is to be administered by provincial authorities, they must consent as well. The offender has the right to consent to be transferred to his home country knowing how that sentence will be administered.

This brings to mind another critical element, which is ensuring that offenders are aware of their right to access a transfer. Foreign citizens must be informed of the existence of an international transfer treaty between Canada and their country of origin. This legislation will require that correctional authorities inform foreign national offenders of their rights under any treaty.

This legislation serves two purposes. It is humanitarian and it also helps to protect the public. Being humane to offenders is not universally accepted. But I would remind everyone of the outcry that takes place when we realize that Canadians are being ill treated due to harsh conditions in the prisons in many countries not as enlightened or as fortunate as we are in Canada.

To enhance its humanitarian nature, the legislation will extend the scope of possible transfers to include young offenders serving community sentences. The current act allows for the transfer of young offenders in custody, but not ones serving community sentences, whereas adult offenders serving both types of sentences may be transferred. This is an anomaly which will be addressed by this legislation.

In addition, the proposal will allow for transfer of children under the age of 12. In many countries children can be held criminally responsible at very young ages. This legislation will allow a child to be returned to Canada but, in keeping with Canadian values and standards, such a child would not be imprisoned.

A further expansion will allow for the transfer of mentally disordered offenders. In this case they could be returned to Canada and dealt with by the mental health system.

These categories of offenders are not currently covered, but we need to ensure that our most vulnerable citizens have the opportunity to be repatriated to Canada.

Recognizing the role of the provinces in dealing with these categories of offenders, the legislation ensures that they have the right to consent to such transfers. Consultations took place with all provinces and they agree with the amendments that are being proposed in this legislation.

An important aspect of the proposals is the recognition that people may be incarcerated in areas where treaties do not currently exist. This legislation will allow the transfer of offenders on an ad hoc basis.

This is important as the negotiation of a treaty may take years and we do not want our citizens languishing in harsh conditions of confinement far from their homes and families while a treaty is being negotiated. To deal with these situations, the international transfer of offenders act will permit the negotiation of an ad hoc arrangement on a case by case basis with a foreign state to allow transfers to take place.

This legislation will allow for transfers to take place with countries or regions that are not recognized as states, such as Taiwan and Hong Kong. The dissolution of the USSR and Yugoslavia highlight the problems in dealing with territories or jurisdictions not yet recognized as foreign states. Several years may pass before the jurisdictions are firmly recognized as foreign states. In the interim, Canada cannot enter into a treaty with them. Canadians incarcerated in these jurisdictions and vice versa are not eligible to apply for an international transfer.

I mentioned earlier that the purpose of the act included public safety. I would like to speak to that issue for a moment.

By allowing offenders to serve their sentences in Canada, they can be gradually released into the community under supervision and control with appropriate assistance and support. Otherwise these offenders would simply be deported at the end of their sentences and arrive in Canada without our having any authority to monitor or control their behaviour.

What happens if the transfer treaty is not used is that the foreign state will often deport the offender back to their country of origin, in that case Canada, at some point. The offender will arrive in Canada and there is no record of his or her conviction nor any legal means of ensuring that he or she is required to serve the balance of the sentence either in an institution or in the community.

By using a transfer, the offender returns to Canada to serve the sentence here. Correctional authorities will have the ability to carry out the foreign sentence in accordance with the way all other sentences are administered here. It also allows us to ensure the safe reintegration of the offender back into the community under supervision.

A Canadian offender returned to Canada will be subject to the same conditions as all other offenders, including having access to treatment programs that will reduce the risk of future reoffending and thus protect our citizens. Canada is well respected for its treatment programs in federal institutions, many of which are accredited by an international panel. This is surely preferable to having someone dumped back in the country with no resources to assist their adjustment back into society.

As I noted, Canada has concluded a number of bilateral treaties and multilateral conventions on the transfer of offenders. In the United States, in addition to the federal authorities, 45 states accede to transfer of offender treaties with Canada. These proposals will enhance Canada's ability to cooperate internationally in the area of criminal justice, particularly with regard to sentence enforcement.

This is not a one way street. Just as Canadian offenders can return to this country to serve their sentences, foreign nationals can also be returned to their countries to serve their sentences. Again, this will allow them to serve their sentences in a place that is culturally appropriate to them and to have access to their families and communities.

This is good legislation that meets important needs. It will bring the existing legislation up to date and reflect important principles of transfer treaties. It will allow Canada to respond to the needs of its citizens who are convicted in other countries and must serve sentences in sometimes extremely harsh conditions.

As I mentioned, while the legislation is predominantly humanitarian, it also serves an important public safety role by requiring offenders to serve out their sentences ordered by a foreign court within Canada.

It is very important that the parole system and those kinds of extensions of the correctional service system are utilized. The statistics are very clear in Canada that offenders who do not go through that process escape monitoring, which sometimes leads to serious consequences for some of our citizens. I think it is important for that to be the foundation of the legislation.

I also ask members to think of the families of those who are incarcerated outside of Canada. The hardship faced by offenders serving sentences in foreign countries is only surpassed by the hardship faced by the families who must worry about their survival.

I urge the speedy passage of the legislation.

International Transfer of Offenders ActGovernment Orders

May 7th, 2003 / 3:30 p.m.
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Liberal

Jim Karygiannis Liberal 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 ActGovernment Orders

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

Norman E. Doyle Progressive Conservative 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 ActGovernment Orders

May 5th, 2003 / 6:10 p.m.
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Liberal

John Bryden Liberal Ancaster—Dundas—Flamborough—Aldershot, ON

Mr. Speaker, I think I can constructively add to the discussion on the bill by observing that, among other things, it is also clearly part of the government's anti-terrorism legislative package. That was not dealt with by the parliamentary secretary and I do not think it has been commented on so far in this debate. However the proof of the pudding, shall we say, is in the comparison that one can make between the Transfer of Offenders Act and Bill C-33 and the changes that one sees between the two pieces of legislation.

When I came to look at Bill C-33, my first question was why the government felt it had to reintroduce a completely new bill rather than simply amend the old. Clearly the reason is that the changes to the Transfer of Offenders Act, as expressed in Bill C-33, are very consequential and they have everything to do with September 11 and the changing climate with respect to the situation of terrorism in the world.

I draw the attention of the House to a new clause in Bill C-33, in paragraph 10, which reads:

In determining whether to consent to the transfer of a Canadian offender, the Minister shall consider the following factors: (a) whether the offender’s return to Canada would constitute a threat to the security ofCanada;

That is new. Then a little further on in paragraph 10(2) we have similar wording but broader and in a different context. I will read paragraph 10(2)(a):

In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister shall consider the following factors: (a) whether, in the Minister’s opinion, the offender will, after the transfer, commit aterrorism offence or criminal organization offence within the meaning of section 2 of the Criminal Code;

We can see what is happening here. It is that Canada must realistically consider the prospect that a Canadian, travelling abroad on a Canadian passport may undertake a serious criminal offence, a terrorist offence, and that person may be captured in the country in question. We then have the question of whether that person should be transferred back to Canada or held in the country where that person was captured.

Coincidentally, we have a very pertinent case that occurred only just last week in Israel with the suicide bombing involving two young people who were travelling on British passports. All we have to do, in our imagination, is to change the British passports to Canadian passports and we can see the type of problem that the changes in the bill are trying to address.

There is also the other example with the war in Afghanistan. We had a situation there where captures were made involving a family which had come from Pakistan and settled in Canada. The family members had Canadian passports and were found to be involved in Afghanistan, fighting against the coalition, including Canadians who were attempting to deal with the terrorist regime in Afghanistan.

The problem is twofold. A Canadian was captured abroad, perhaps undertaking a suicide bombing, but was captured. If that person were returned to Canada, he could be deemed to be a security threat because he would be able to take advantage, under the legislation, of the early parole provisions. In other words, that Canadian national could be returned to Canada and released earlier than he would be in the country in which he was captured.

The other problem is that we could have a person who has Canadian citizenship and who might be discovered to be a major player in a terrorist organization abroad. I will extend it a little bit. The person may be a major player in an organization linked to some kind of ethnic conflict. We should not focus only on the Middle East because this could apply almost anywhere.

That person could be brought back to Canada and if he is brought back to Canada, again, there could be a security threat because that person may bring with him all the anger, concern and political problems. He may be in a Canadian jail but it could cause all kinds of difficulties in Canada.

I am thinking, for example, of the situation that occurred recently in Turkey where I think it was a Kurdish leader who was captured and returned to Turkey. One can imagine the situation if that person had Canadian citizenship, and it is quite possible. Dual citizens are all over the world and many of them have Canadian citizenship. There could be this very difficult situation where if that person asked and was returned to Canada, it could cause a major political and ethnic problem, even leading perhaps to violence. That all makes perfect sense and it is what Canada has to do in the context of international terrorism.

Canada is very proud of its open door policy and the way it invites people of all nationalities to come to Canada. We have an extremely, shall we say, forgiving criminal justice system. We have a very civil way in which we deal with one another, regardless of our particular backgrounds. We make no distinction between Canadians who are born here and Canadians who acquire citizenship.

However we have to recognize that can pose a serious problem in a world in which there is a major threat of terrorism. We do not want a situation where foreign nationals deliberately acquire a Canadian citizenship so they can return to their countries of national origin and engage in illegal acts fully in the belief they can eventually, if caught, return to Canada and enjoy the civility of the Canadian prison and Canadian attempts to return people to the community, rather than incarcerate them for a very long time. It is positive in that sense.

I think when this goes to committee, the committee has to look at it very carefully because the bill works in the opposite direction as well. Paragraph 10(2)(a), to which I referred, also makes it possible for the government to transfer a foreign national back to the host country if that foreign national has been convicted of an offence in Canada.

Now that raises some difficulty because we have to be concerned in Canada about people who are captured on Canadian territory. We like to think that the principles of Canadian justice would apply but we have to recognize there are other countries around the world that have much more severe criminal justice regimes. The temptation may be political where the Canadian police forces may capture a foreign national and because that foreign national is captured on perhaps some relatively minor crime in Canada but is suspected of major crimes in another country, that other country might seek to have that person transferred back to the foreign country.

Therefore we have a situation where if the other country suggests that person will return to the other country and commit a terrorist offence, we would have the additional problem that the minister has to have the opportunity to deny the transfer as well. The scenario is simply this. Canada captures someone. That someone is convicted of a fairly minor offence in Canada but the country in which that person has alternative citizenship seeks the return of that person to serve in a jail in that other country.

But what if that person is suspected internationally of being part of a terrorist organization? Suspected only, Mr. Speaker. Again, paragraph 10(2)(a) would permit the minister to deny that transfer if the minister--and it does not spell what criteria the minister would use--thinks that there is a possibility that person may be returned to that other country, and because he is a local hero in terms of the ethnic conflict that might be going on there, not just terrorism, ethnic conflict, might cause a problem, so the minister reserves the right to hold that person in Canada.

We can see how that fits into the anti-terrorism legislation. We have to persuade our allies that we are part of the war on terrorism and that our laws do not have significant loopholes that enable people to be transferred out of Canada and back into another jurisdiction in which they can cause considerable harm, not necessarily in that jurisdiction, but considerable harm in terms of international terrorism.

I would make another observation as well. Something else new is in clauses 31 and 32. This also relates to anti-terrorism, or a stricter regime for making sure that people who are a danger to world peace or peace in other countries do not get back or do get back. What happens here is that the idea of administrative return is introduced, where, if Canada does not have a treaty for the return of offenders with a particular country, a country can approach Canada, which does not have a treaty, and Canada has captured a person of that country's citizenship, we can do a deal that is outside of the treaty to arrange for the return of that person to the country has requested that return.

Again this is something that the committee has to look at very, very carefully, because we have to do our role in the war against terrorism and do our role in terms of maintaining international order and reducing international crime. We must be very careful that we do not pass legislation that would allow the government to be manipulated for reasons of foreign policy rather than reasons of security and justice.

I have to say that I have not had the time to examine this bill in the depth I would like, and quite frankly I do not think I have the skill, but I do call upon the committee that receives the bill to examine those two points very carefully, because Canada tries to strike a balance. I think that we have done extremely well in our anti-terrorism legislation and our new security legislation in that we addressed the problems of the new international threats with minimum damage to civil liberties. But it is this kind of legislation that is a relatively small bill that comes into the House without much fanfare, we just come upon it rather suddenly, and that is the type of legislation in which a flaw could occur that could, if not endanger civil liberties, erode or run contrary to how we see ourselves as Canadians, certainly as a people who are very conscious of the need for and our role in maintaining world security, but a nation also that tries very hard to make sure that we do not inadvertently give powers to the government that properly belong with Parliament or with the courts.

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 6:10 p.m.
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Liberal

Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, the term repatriation of a Canadian citizen in fact is a contradiction in terms. I do not know how Canadian citizens can be repatriated in the sense that they are always Canadian citizens. The transfer in Bill C-33 suggests that their rights in a sense, under the spirit of the bill, can be brought back to Canada and implemented within such things as the charter, which has been mentioned by the hon. member.

With respect to the charter, and I certainly would bow to others who have more experience in the application and relevance of the charter in such circumstances, and the matter of whether the charter would be applicable to landed immigrants and onto spouses and so on, my understanding is that the charter applies in effect to even those who are not Canadian citizens, who are offshore. We recently had the seizing of Chinese illegals who had argued that the charter in some respects should apply to them, and with some merit. Our charter is much more universal and holistic in terms of its application.

To answer the member, my understanding would be that if the charter applies in such fashion, then it would be my opinion that the broader application of the charter would be applied such that it would in fact protect and address the issues that may be affected, as they relate to spouses and so on.

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 6:05 p.m.
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Liberal

Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, my understanding also is that while initially the consent must be given and must be given by the party to which the application is made, that, yes, during the process, the consent can be denied.

I would suggest it is really the application of due process and natural justice in that the person who has been convicted in a foreign country never has lost that right for due process in the eyes of Canada and under the terms and conditions of Bill C-33.

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 6:05 p.m.
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Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Solicitor General of Canada

Mr. Speaker, I found the debate and the comments by the hon. member very interesting. I also found the question asked by the hon. member on the other side of the House to be quite interesting.

It is my understanding, from reading of the legislation, that one of the admissibility or eligibility criteria is that all forms of appeals that exist within whichever state the offender is incarcerated in have to be over. There are no further appeals allowed and it is at that point that the offender can apply voluntarily for a transfer.

I would like to ask the member if my reading of the bill is in fact correct, that in one way Bill C-33 actually improves things for the offenders who may be eligible in that it clarifies the issue of consent. It is my understanding that under the bill as it now stands the consent issue is not quite clear but under the new bill the individual who applies can withdraw his or her consent at any point that this--

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 5:50 p.m.
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York South—Weston Ontario

Liberal

Alan Tonks LiberalParliamentary Secretary to the Minister of the Environment

Mr. Speaker, I am pleased to rise in the House in support of the government's Bill C-33, the international transfer of offenders act. The primary objective of the bill is to modernize the Transfer of Offenders Act which was proclaimed in 1978. Everyone would agree that in this global environment the world has certainly changed since then and the time has now come to address the substantive issues which have developed during this period. Many of those developments have been alluded to by members on the opposite side.

The provisions introduced by the bill would ensure that Canada has a modern and comprehensive framework for negotiating the transfer of offenders which reflects international standards and allows for mutual cooperation in criminal justice.

In basic terms, the Transfer of Offenders Act provides for the implementation of treaties with other countries for the international transfer of offenders. These treaties allow Canadians convicted abroad to serve their sentences in Canada, and allows foreign nationals to return to their home countries for the same purpose.

One might well ask, as many members have, why these types of transfer agreements are required at all. After all, some might argue that time served in a foreign jail, far from friends and family and under harsh conditions, might serve as a deterrent to Canadians who might be contemplating crime abroad. Of what benefit is it to allow Canadians who have run afoul of the law in some foreign jurisdiction to return to Canada to serve the remainder of their sentence here?

The answer to this question lies in the humanitarian and public safety objectives of the Transfer of Offenders Act, objectives that will be retained and strengthened under Bill C-33. The links between humanitarian and public safety objectives are as important as they are clear. Canadian correctional policy recognizes that the vast majority of offenders will one day be released back into their respective communities. We have learned that the best way to ensure public safety is to prepare offenders for their ultimate release at the end of their incarceration. At the core of this process is the humane treatment of offenders.

We all recognize that Canadians sentenced abroad are often incarcerated under terribly harsh conditions without access to satisfactory environments that would give them a positive outlook to that period when they would be released back into society. These considerations affect not only Canadians sentenced abroad, but also their families and friends. Returning these offenders to Canada on humanitarian considerations also opens the door to improved opportunities for their rehabilitation and for protecting public safety. I want to reiterate that particular point.

The spirit behind the changes in Bill C-33 are in fact to increase public safety by rehabilitating those who have been incarcerated, and not accelerating their criminal tendencies. By that I mean also providing offenders access to rehabilitation opportunities that might otherwise not be available in a foreign jail. This includes being in close proximity to a supportive family and friendly environment as well as to prospective employers who are able to provide support during and following release. It also includes providing access to programs that have demonstrated to be effective in addressing the underlying causes of criminal behaviour.

Public safety is ensured by the requirement that all offenders transferred to Canada will be subject to supervision in the community following release. This would not be true, for example, if these same offenders were released directly from prison in a foreign jurisdiction. If that were the case, these offenders would simply and most probably be deported to Canada without any controls whatsoever and without the benefits of any rehabilitation programs. Would this be in the interests of Canadian society? I think not.

Let us make no mistake. The provisions of Bill C-33 do not mean that transferred offenders can somehow escape justice. In fact, quite the opposite is true. The treaties and the act ensure that the receiving state continues to enforce the sentence imposed by the sentencing state.

As I noted at the outset, the Transfer of Offenders Act came into effect in 1978, and until now, amendments have primarily been of a technical nature.

Part of providing Canadians with good governance requires that government laws and policies be reviewed and updated, as required, to reflect changing conditions. This holds true for the Transfer of Offenders Act.

Indeed, the government has undertaken extensive consideration and consultation with 91 private sector and government agencies for the purpose of determining what, if any, amendments were required. I am pleased to say that there was strong support for these provisions of the Transfer of Offenders Act.

The results of our consultation also pointed to the need for amendments in three broad categories. The proposals put forward in Bill C-33 fall into one of the following categories: those that would reflect traditional treaty principles; those that would close identified gaps in the Transfer of Offenders Act; and finally, those that would introduce efficiencies to the current practices.

Very briefly I would like to touch on the key points introduced by the reforms.

The purpose of the act and the principles that guide it are clearly stated. This helps to ensure consistency with other components of Canadian law, particularly the Criminal Code and the Corrections and Conditional Release Act. The stated purpose of the new international transfer of offenders act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

Traditional international treaty obligations and principles considered to be legally essential are included. These include concepts such as the non-aggravation of the sentence by the receiving state, to which I have alluded earlier. It also includes principles that would give the offender access to processes consistent with natural justice and due process. A legally sound act is essential to ensure that the courts do not strike down the transfer process and that transferred offenders are not released into the community without appropriate controls.

Eligibility criteria to allow for the transfer of a broader range of Canadians who are currently not eligible are included in Bill C-33. As has been mentioned, young persons under probation, children and mentally disordered persons will become eligible for transfer under the provisions in this bill. This is fully consistent with the humanitarian objectives of the proposed legislation.

Clarification is included on the decision making provisions where provincial consent is required for the transfer of offenders on probation, provincial parole, provincial temporary absence and for those who, under a conditional sentence, are in an intermittent sentence.

Reforms are included to ensure consistent and equitable sentence calculation provisions for transferred offenders and to ensure the equitable treatment of transferred offenders when a pardon is granted or a conviction or sentence is set aside or modified.

Finally, provisions are added to allow negotiation of transfers on a case by case and ad hoc basis between Canada and states with which Canada has no treaty or jurisdictions, or territories that are not yet recognized as a state, or non-state entities such as Hong Kong or Macao. This last point is particularly significant in light of ongoing world developments.

These are some of the main elements of Bill C-33 that would be introduced.

Most states have recognized the importance of working together to prevent and respond to criminal conduct. Although this objective might seem to conflict with some aspects of the longstanding principle of territoriality, that is to say of not enforcing foreign laws, such cooperation actually protects the sovereignty of states by preventing offenders from escaping justice. In its absence, crime could be encouraged rather than suppressed.

The success of Canada's transfer of offenders scheme hinges on international cooperation. Bill C-33 would provide Canada with the legislative flexibility to cooperate with a broader range of countries and entities in matters of criminal justice.

As I have said before, this is the key to public protection. Enforcement of a foreign sentence in Canada ensures that offenders will be safely and gradually reintegrated into society by correctional authorities.

To sum up, the proposals introduced by Bill C-33 build on a very successful component of Canada's corrections policy, one that embraces fair and effective treatment of all offenders, including those sentenced abroad. The proposed reforms would demonstrate a strong commitment to humanitarian and public safety objectives. Moreover, the proposals demonstrate a continuing receptivity and responsiveness to changing international developments and a willingness to cooperate multilaterally with existing and new partners.

For these reasons, I ask members of the House for their support of Bill C-33.

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 5:40 p.m.
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Canadian Alliance

Stockwell Day Canadian Alliance Okanagan—Coquihalla, BC

Mr. Speaker, in addressing Bill C-33 today I would like to suggest that when we look at the purpose of the bill, on its surface it appears difficult to oppose when one looks at its basic mandate, which is outlined in clause 3:

...to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

I might suggest that supporting this bill would not be a problem if in fact all it is designed to do is transfer Canadian citizens who are convicted in other countries and perhaps are serving their sentences in deplorable conditions. If that were all this bill is doing, and if it were clear on that, I think it would be easy to support. We all recognize that there are some fundamental principles of justice, such as the right to a fair trial and the right to humane treatment. These are things on which we agree. Of course when we talk about humane treatment we are referring to conditions that meet basic human rights.

It could be argued that in Canada we have treatment that far surpasses on the other side anything that could be even closely deemed as inhumane. As a matter of fact, one of the concerns we hear from Canadian citizens from coast to coast is the phrase club med type facilities, which many of our convicted criminals enjoy in this country. In Canada we do not have to be overly concerned at this stage about humane treatment; it is plentifully humane.

This bill is referring to the possibility that Canadians could be in a situation in another country where they are convicted of a crime but are in genuinely inhumane circumstances. Most Canadians, even though they want to see justice applied and want to see consequences for crime, do not want to see absolutely inhumane situations resulting.

If this were the only purpose of the bill and if that were clear, as I have said, I think support would be clear from this side of the House, but I would like to refer to some sections that raise questions. I for one will be watching the progress of the bill to see if these concerns can be remediated, along with concerns that others of my colleagues are raising and, as we have heard, members from the Bloc and other parties are raising.

Let us look specifically, for instance, at subclause 8(1), which states:

The consent of the three parties to a transfer--the offender, the foreign entity and Canada--is required.

This is fascinating. It states that there have to be three parties to consent to a convicted criminal being transferred and it names the three parties: the offender, the foreign entity and the Government of Canada. Once again we see that the Liberal government is concerned about the rights of convicted criminals, but there is no mention here about the rights of victims. There is no mention at all about victims who would have suffered at the hands of these criminals who are looking at the possibility of being transferred, and there is no mention about the safety of Canadians when these criminals are possibly transferred here.

That particular area is subclause 8(1). I would like to hear from the proponents of this bill about what they are doing, if anything, to acknowledge the rights of victims and to acknowledge the proper concern Canadians may have for their own security, depending on the severity of the crimes that were committed by those who committed them, the criminals themselves who are coming to Canada.

Let us look further at subclause 10(4), which again talks about the process as to whether to consent to the transfer of a Canadian offender who is defined as a child “within the meaning of the Youth Criminal Justice Act”. We know that very recently, in just the last couple of days, we have seen the federal government do a radical shift in terms of our own young offenders here in Canada. The government had staked out a position, then there was a court case in Quebec, and now the government is saying it is going to radically change its position on this area of the determination of whether a young offender, based on the severity of his or her crime, should be moved into adult court.

Again, the prime consideration in this section reflects the consideration of the minister, the consideration of the relevant provincial authority and what would be in the “best interests of the child”, and the child could be a 16 year old or 17 year old. But again there is no mention of victims here. Once again this legislation appears, at least at face value, to be deficient in terms of recognizing the rights of victims. Again I will look for the proponents of the bill and the minister to suggest whether that is being reflected in the bill or whether there are going to be some changes that will accommodate our concern.

There is another example of this under clause 38. It states:

This Act applies in respect of all requests for transfer that are pending on the day that this section comes into force.

In case some of my colleagues across the way missed that I will repeat it. Under clause 38:

This act applies in respect of all requests for transfer that are pending on the day that this section comes into force.

In other words, this legislation is retroactive. Some of us have some serious concerns about retroactive legislation.

With the present legal environment in which we operate, there is a basic principle in law that citizens have some sense that they are operating under and could be judged under existing law. When retroactive legislation is contemplated, that ground begins to shift and it presents a certain amount of instability in the legal framework under which we all live. In my view there have to be very compelling reasons for that retroactivity.

Previously, the Canadian Alliance has asked for certain legislation to be retroactive and the government has balked at doing it. The government has said it could not be done because it would be retroactive.

I cite the sex offender registry. The Canadian Alliance has made it very clear that with the thousands of sex offenders who are out there right now, the registry being contemplated by the government will only register those who will be convicted from this day forward and says nothing about the potentially dangerous thousands who are out there right now. The government has said it cannot be done because it will be retroactive. Yet the legislation we are talking about today is retroactive.

The Canadian Alliance has also asked for some retroactivity with regard to the DNA data bank legislation. In resisting that, the government once again said it would be retroactive legislation and that it does not support retroactive legislation.

This seems to be a case of the government being selective. Sometimes it likes retroactive legislation and sometimes it does not.

I will be looking for the minister to make an equally compelling case here on the issue of retroactivity. Why would this be retroactive? What are the criteria? There should be some standard legislative norms that could be applied to legislation when one is trying to make the argument for or against retroactivity.

As I have already suggested, retroactivity is somewhat dangerous in terms of what it does to an existing framework. Therefore the criteria should be very clear. It should be predictable and understandable. It should be something which Canadians could look at and get a clear sense of the reasons for that retroactivity.

These are some of the reasons why I have concerns with the bill. Rather than denouncing it outright, because there are some principles in this legislation on which we agree, I hope that the minister and those with whom the minister works, will bring out either changes or things we may have missed in the legislation that would address these very real concerns of Canadians.

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 5:15 p.m.
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Bloc

Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

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.

International Transfer of Offenders ActGovernment Orders

May 5th, 2003 / 4:50 p.m.
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Notre-Dame-de-Grâce—Lachine Québec

Liberal

Marlene Jennings LiberalParliamentary Secretary to the Solicitor General of Canada

Mr. Speaker, I am pleased and honoured to speak to second reading and express my support and obviously that of the government for Bill C-33, the international transfer of offenders act. The primary objective of this proposed enactment is to repeal the existing legislation in this area and replace it with a new enhanced and modernized version that is more responsive to international developments.

Before I delve further into the details of the existing legislation and the bill before the House, I would like to elaborate on why I believe members on both sides of the House should take part in this debate. They should not hesitate to take part in this debate. They should familiarize themselves with the spirit and the subject matter of the bill. All Canadians are entitled to receive from their elected representatives the rational, sound and effective governance they deserve and expect, a matter of trust I am certain all members take seriously.

It is much less difficult to concentrate on the hot button issues of the day and contribute short sound bites and quick one liners. However good government involves a great deal more than that. One must be able to deal effectively with critical, pressing concerns that impact on a great number of Canadians, or concerns that have immense global significance, while at the same time ensuring that the numerous federal statutes and regulations are updated and modernized so they continue to meet their objectives. In that spirit, I thank hon. members for the scrutiny that will be given to this important bill.

Bill C-33 before us today is an excellent example of the everyday work of this Parliament. It is of great importance. Although it may not capture the daily headlines, the work of Parliament in this particular initiative is important and deserves the scrutiny of members on both sides of the House. It is one thread among many that form the fabric of laws that make this country a shining example of democracy and good government in which all Canadians can share pride.

In this vein, the right hon. Prime Minister in his response to the Speech from the Throne that opened the second session of the 37th Parliament stated the following:

This has been a government committed not to the big bang or the big show, but to continuous and enduring improvements, minimizing divisiveness and maximizing results, focused on the problems and priorities of Canadians, focused on the future, focused on the world.

Bill C-33 which is before us today improves and expands upon the principles contained in the original Transfer of Offenders Act, a statute that meets important public safety and humanitarian objectives, which are achieved through cooperation with other nations.

The act arose out of discussions at the United Nations involving many of our international partners, at which we agreed on the importance of providing a mechanism for the international transfer of offenders so that, for example, Canadians who are convicted in a foreign state may, under certain circumstances, serve their sentence in their home country of Canada.

The Transfer of Offenders Act accomplishes this by providing for the implementation of specific treaties which also set out the conditions under which a foreign national sentenced in Canada may be returned to his or her home country to serve his or her sentence. This ensures that foreign offenders who are convicted in Canada do not escape justice, which would be the case if they were merely deported from Canada upon conviction and sentencing.

Under the Transfer of Offenders Act, Canada has ratified treaties and conventions which allow transfers between us and over 40 countries, including among many others, the United States, Mexico, France and Egypt. The terms and conditions under which offenders are transferred are carefully negotiated such that serious offences are scrutinized without diluting sentencing. Comprehensive and effective legislation is vital in order to encourage other countries to sign treaties with us so that they can be used when the need arises.

The Transfer of Offenders Act, enacted in 1978, serves to achieve several commendable and worthy objectives. First of all, the act serves an important humanitarian role. There is absolutely no question that individuals who are found guilty of crimes in foreign countries should be liable to be punished according to the laws of that particular country. However, situations have arisen, as members in the House know, where a foreign sentence along with foreign standards of justice and commissions of confinement, may impose severe hardship on Canadians when applying even the most rigorous of standards.

This is not to say that foreign nations are intentionally singling out Canadians for harsh sentences or prison conditions. Much of the related hardships may be seen as a result of differences in language and culture which can result in Canadians being exposed to serious psychological stress caused by language isolation, an unfamiliar legal system, differences in lifestyle, health care, religion and diet.

One must consider the potential suffering and hardship that can be imposed on the family members and friends of Canadians imprisoned abroad, who themselves have not done anything wrong. It would be heartless to ignore their plight. As I am sure all members in the House know, the costs associated with travelling to visit their imprisoned loved one and obtaining legal representation for many Canadians who do have family members sentenced and imprisoned in foreign countries are prohibitive. As well, the families and friends of the offender often feel compelled to forward large amounts of money so that the offender can supplement his or her diet or health care and obtain other necessities.

As is the case with the offender, the situation of family and friends may also be exacerbated by unfamiliarity with the foreign legal system and other cultural and language factors. It is true that Canadian consular officials can help to alleviate some of these problems, but there are very real limits to the extent of the assistance that can be provided. The role of the consulate is generally restricted to seeing that the offender's rights under the local law are respected, providing a list of local lawyers and making efforts to facilitate family contact.

Another important objective of the current Transfer of Offenders Act is that of public safety. It contributes to the protection of the public in several significant ways. First of all, it allows Canadian offenders to serve their sentence in Canada, thus providing them with the opportunity to maintain valuable contact with family members. We all intuitively recognize that a good support system can play an important role in the rehabilitation of offenders and their eventual reintegration into society.

The statement of fact that I just made is supported by research which consistently demonstrates that offenders who have the benefit of a strong, supportive relationship with their families are less likely to become recidivists. Furthermore, safety is enhanced in Canada by the provision of rehabilitative and other programs and the gradual and controlled reintegration of returned offenders into society under supervision, elements that are not available to Canadian offenders in many foreign corrections systems.

This remains the case even when the country of detention is one in which the social milieu and conditions appear not to be highly dissimilar to those of Canada. Therefore, the international transfer of offenders contributes to the reduction of recidivism as well as reducing the hardships suffered by Canadians sentenced in other countries and their families.

Of course the government continues to encourage all citizens to observe Canadian laws and those of any country they may find themselves in, but that does not mean we can ignore the plight of our citizens sentenced abroad and their families.

In the many years since the Transfer of Offenders Act came into force, only minor technical amendments have been made to the act. The amendments which are proposed in Bill C-33 before us today meet several vital objectives. The changes address substantive issues that may have been raised over the intervening years and include adding several legally essential treaty obligations in principle, such as the non-aggravation of the sentence by the receiving state.

If a Canadian has been convicted and sentenced in a foreign state to serve out a sentence in prison and that Canadian, under this act, requests to come back to Canada, and the foreign country in which he or she is incarcerated agrees and Canada agrees, when that person comes back to Canada, the sentence cannot be aggravated. It cannot be increased. If for the same crime Canada has a more stringent sentence, the Canadian sentence would not be applied. It would be the foreign state sentence that would be applied.

One of the other substantive issues which is addressed in Bill C-33 is expanding the eligibility criteria to include Canadians who are not currently eligible for transfers, such as young persons on probation, children and mentally disordered persons. Under the existing Transfer of Offenders Act, these three categories of individuals or groups are not eligible to benefit from the transfer of offenders. Under Bill C-33 we would expand the eligibility criteria and they would be included in those groups admissible to take advantage of the transfer.

The provisions under Bill C-33 also clarify provisions in the Transfer of Offenders Act relating to the decision making process by such measures as requiring provincial consent for the transfer of offenders within provincial jurisdiction.

It would also align the sentence calculation provisions with other legislation to ensure the equitable treatment of transferred offenders and to ensure that Canada takes appropriate action when the foreign state grants relief in respect of the offender's foreign sentence.

Bill C-33 also adds provisions to enable the negotiation of administrative arrangements on a case by case or ad hoc basis, to extend the act's humanitarian objectives to offenders held in harsh conditions in foreign states with which Canada does not have a treaty or is negotiating but has not as yet concluded a treaty. It would also allow Canada to negotiate with foreign entities which are not as yet recognized as states to negotiate administrative agreements, not treaties.

For example, there are Canadians who are incarcerated in jurisdictions such Hong Kong, Macao and Taiwan. Those are three places which Canada does not recognize as a state. Therefore those Canadians cannot be repatriated at this time because the current legislation does not authorize arrangements for the transfer of offenders to be negotiated with those jurisdictions.

Under Bill C-33 the Canadian government would be able to negotiate an administrative arrangement with jurisdictions, such as Hong Kong and Taiwan, in order to make arrangements and allow for the transfer of Canadian offenders who are currently in those jurisdictions to come back to Canada, if they so wish, and for individual foreign nationals in Canada who wish to go back to those jurisdictions to return.

I would urge all hon. members to support the passage of Bill C-33. The proposed changes are necessary to ensure that the transfer of offenders regime is responsive to international developments, to allow Canada to meet international expectations and to ensure that it meets its valuable humanitarian and public safety objective.

Let me say once again that this initiative demonstrates the government's commitment to peace, order and good government by expressing Canadians' humanitarian ideals and by improving mechanisms that enhance public protection, which is and will continue to be the paramount consideration for the government.

Early last week I was approached by a member of my caucus, a Liberal MP, but it could have been an MP from any of the other political parties present in the House, who explained to me that one of his constituents had a family member who was presently incarcerated in a foreign state and who wanted to return to Canada.

Under the present Transfer of Offenders Act the family member is not eligible under the stated criteria.The member's constituent has already studied Bill C-33 and was pleased to see that under Bill C-33 his or her family member, I am not sure of the gender of the constituent, would be eligible. That particular constituent is looking forward to the debate in the House, to the legislation being sent to committee, to committee consultation and may in fact request to appear before the committee in order to support Bill C-33. Apparently the individual also has a couple of recommendations or suggestions to make.

However I think that highlights the point that Canadians do support the proposed international transfer of offenders act. I am sure that those Canadians who take a close look at Bill C-33 will be pleased with the proposed amendments that are contained in the bill.

I welcome debate on this from all sides of the House and I look forward to listening to what other members have to say about this.

Business of the HouseOral Question Period

May 1st, 2003 / 3:05 p.m.
See context

Glengarry—Prescott—Russell Ontario

Liberal

Don Boudria LiberalMinister of State and Leader of the Government in the House of Commons

Mr. Speaker, I am pleased to note the lobby just put before us by the hon. member for Bill C-10A to be debated next week.

This afternoon, we will continue the debate on the opposition motion. Tomorrow, we will commence with Bill C-34, the long-awaited bill to amend the Parliament of Canada Act.

I have informed the House leaders of the other parties of my intention to propose, pursuant to Standing Order 73(1), that this bill be referred to committee before second reading. If this debate is completed by the end of the day, we will return to third reading of Bill C-9, which deals with the Canadian Environmental Assessment Act; then we will go to Bill C-13, the reproductive technologies bill, but I would be surprised if we got that far tomorrow.

On Monday and Wednesday, we will return to the two bills that I just mentioned and we will add to that Bill C-35, regarding military judges, which I think was introduced this morning. Then we will complete, I hope, Bill C-33, dealing with the transfer of offenders.

On Tuesday, and again I am responding to the request made by my colleagues opposite, we will continue consideration of the Senate amendments to Bill C-10, respecting the Criminal Code.

Next Thursday will be an allotted day.