Keeping Canadians Safe Act (International Transfer of Offenders)

An Act to amend the International Transfer of Offenders Act

This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.

Sponsor

Peter Van Loan  Conservative

Status

Second reading (House), as of Nov. 26, 2009
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the International Transfer of Offenders Act to provide that one of the purposes of that Act is to enhance public safety and to modify the list of factors that the Minister may consider in deciding whether to consent to the transfer of a Canadian offender. The enactment also amends subsection 24(1) of that Act in the event that the Serious Time for the Most Serious Crime Act receives royal assent.

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.

October 20th, 2010 / 4:45 p.m.
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Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Thank you.

The bill is very short, as you no doubt know. I'm looking at a previous version of the bill; I think it was called Bill C-59 in a former session of this Parliament. It had an additional clause. It was clause 4 that amended a bill that was then before Parliament and would have amended the faint hope clause. It's not in the current version of the bill. Is that correct...? Well, it is correct, but why?

International Transfer of Offenders ActGovernment Orders

September 23rd, 2010 / 1:35 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I am very pleased to have the opportunity to participate in the debate this afternoon on Bill C-5, An Act to amend the International Transfer of Offenders Act.

I am very strongly opposed to this piece of legislation. I am opposed to it because I believe that it mucks around inappropriately with an incredibly successful program that is already in place. I see no need or no appropriateness to the government introducing these changes to a program that has served us so very well to this point.

I also very strong believe, as we have heard in debate today and recently from my colleague from Windsor—Tecumseh and my colleague from Vancouver Kingsway, that these changes proposed by the government will make our communities less safe, not more safe. It has completely the opposite effect than the government is saying it will. There are very serious problems with this and I cannot be clearer in my opposition to this legislation.

What is Bill C-5 about? It is identical to a piece of legislation that was introduced earlier in this government's mandate, Bill C-59. That bill died due to prorogation before there was any debate in the House. Bill C-5 contains amendments to the International Transfer of Offenders Act. We have had legislation around the international transfer of offenders since 1978. The current legislation, the International Transfer of Offenders Act, was enacted in 2004.

The act provides a mechanism for foreign nationals imprisoned in Canada to apply for transfer to their home countries to serve out the remainder of their sentence. It also provides the mechanism for Canadian citizens imprisoned abroad to apply for a transfer back to Canada to serve out the remainder of their sentence.

This regime about the international transfer of offenders has been in force for over 30 years, and both Liberal and Conservative governments have overseen the administration of this legislation. They have also, both Conservative and Liberal governments, overseen the transfer of Canadian citizens back to Canada.

How many people have used this mechanism? Between 1978 and 2007, 124 foreign nationals were transferred out of Canadian jails and 1,351 Canadian citizens were transferred back to Canada.

In the current act, the purpose of the act is defined in section 3, and that section says:

The purpose of this Act is to enhance public safety and 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.

Correctional Service Canada, which obviously has a key interest in the legislation, has a website dedicated to this Transfer of Offenders Act, and it gives more detailed background about the principles underlying how this actually works. I will just quote from that website. It says:

Canadians incarcerated in foreign countries often find themselves facing serious problems coping with local conditions. The most common problems involve culture shock, isolation, language barriers, poor diets, inadequate medical care, disease and inability to contact friends and family...In some prison systems, the offender's family is expected to provide food and financial assistance.

It goes on to say:

The purpose of these agreements is humanitarian to enable offenders to serve their sentence in their country of citizenship, to alleviate undue hardships borne by offenders and their families and facilitate their eventual reintegration into society...Once transferred, the offender's sentence is administered in accordance with the laws of the receiving country.

Just as an aside, this agreement is very important to people in my own constituency. Recently I was visited by a constituent whose son is incarcerated in Japan. He is going through many of those issues that were mentioned on the Correctional Service Canada website, dealing with culture shock, isolation, language barriers in the Japanese correctional system, which is perhaps one of the better ones that a Canadian who is incarcerated overseas might have to deal with. The constituent was explaining to me the difficulties that she and her husband are having in terms of ensuring the safety, the well-being of their son, given the very serious trouble he got into, and everybody acknowledges that he did make some very serious errors.

They are also concerned about some of the changes in consular services that are available to people overseas from Canadian officials when they find themselves in these kinds of very difficult situations. There are very real purposes that affect Canadian families, given the kind of trouble that people have gotten into overseas.

The act explains the process for a transfer application. It says that for a transfer of a Canadian citizen to take place, the offender must consent to the transfer, the country where the offender is currently imprisoned must consent, and the Canadian government must consent. Therefore, the prisoner, the overseas government, and the Canadian government all have to agree to this process.

Currently, the minister of public safety is designated to review all applications for offender transfer and the act specifies that the minister has to consider certain things when evaluating an offender's application for transfer. There are four things that the minister is compelled to consider currently under the legislation.

The minister has to consider whether the offender's return to Canada would constitute a threat to the security of Canada. The minister has to consider whether the offender left or remained outside Canada with the intention of abandoning Canada as his or her place of permanent residence. The minister also needs to consider whether the offender has any social or family ties in Canada, and finally, whether the foreign entity or its prison system represents a serious threat to the offender's security or human rights. Those are all the current requirements that we see in the existing International Transfer of Offenders Act.

The bill before us, Bill C-5, proposes to change those requirements, and it changes the legislation in a number of ways.

First, it seeks to add the words “to enhance public safety” to the purpose of the act. Where the current act currently states that the minister “shall” consider certain factors, and actually requires the minister to consider certain factors, the new bill, Bill C-5, would change this to read that the minister “may” consider the following factors, thereby dramatically increasing ministerial discretion.

It takes away the requirement to do certain things and in a sense proposes that there are certain suggestions the minister must take into consideration. It is a dramatic change in the legislation.

The new proposal, Bill C-5, seeks to add the phrase “in the Minister's opinion” to the existing factors laid out in the act. What are those new factors that are laid out in the act that the minister may consider, again that the minister is not required to consider but might choose to consider, given these proposals from the government?

Those seven factors are whether, in the minister’s opinion, the offender’s return to Canada will endanger public safety, including the offender's victim, family or any child, in cases where the offender has committed a sexual offence involving a child, as well as whether, in the minister’s opinion, the offender is likely to continue to engage in criminal activity in Canada. The new bill also proposes that the minister may take into consideration the offender's health, whether the offender has refused to participate in rehabilitation programs, whether the offender has accepted responsibility for his or her crime, the manner in which the offender will be supervised after his or her transfer, and whether the offender has co-operated with police.

However, the most important change in this list of factors is the seventh factor, which would allow the minister to take into consideration any other factor that the minister considers relevant. Let me quote that again. The direct quote is “any other factor that the Minister considers relevant” while evaluating an application for transfer.

That is a huge opening to discretion that is utterly inappropriate in this process, that any minister could have the opening to whatever he or she wanted to think was a consideration. To add that into this process is completely inappropriate and irresponsible of the government to go down that road. If there is a reason for defeating and abandoning this legislation, it is right there in that phrase.

What have New Democrats been saying? We have heard a number of New Democrats participate in this debate today. Our justice critic and our public safety critic have participated in the debate.

We agree that enhancing public safety should be one of the purposes of the bill. The safety of the public should be given consideration when assessing an application for transfer. I believe it is already included in the factors that the minister is required to take into consideration. I am sure any minister evaluating an application for the transfer of an international prisoner would take that into consideration.

I do not think there is any indication, and there certainly has been no evidence presented by the government, that public safety has ever been compromised under the current act. It certainly does not seem to be a dramatic problem, and one wonders why the government dreamt up this idea in the first place. It is not an issue that I have ever been apprised of in the exercise of this legislation and this program.

It is important to remember that Canadians transferred back to Canada under the act are not being released immediately into the community. They are returning to serve out their prison sentence in a Canadian correctional facility, where they have access to rehabilitation programs and will be subject to the supervision that our correctional system provides.

We have to remember that whether or not these individuals are approved for a transfer they are eventually going to come back to Canada. When somebody is sentenced to a crime overseas, they serve their time, and at the end of that time, they come home. We cannot block their return to Canada. It is to our advantage to ensure that they have rehabilitation, that they have access to programs that will help them turn their lives around.

That is one of the reasons that a transfer in many cases enhances public safety. If we can get someone back, if we can get them into our rehabilitation programs, if we can ensure that their parole conditions allow for appropriate supervision once they are out of jail, our communities will actually be safer in the long run, safer than they would be if somebody came back who never had to engage in any of these programs and who cannot be supervised once back in Canada. There are lots of good reasons for wanting them to participate in these processes. Public safety is a significant consideration already, given the way these programs work.

We can offer anger management programs, rehabilitation programs, and substance abuse programs in our prison system. Often none of these things is available in programs outside Canada. It is to our advantage to make sure that a Canadian convicted of a crime overseas has access to these kinds of programs.

That is a crucial reason why this legislation is ill-conceived. It would not contribute to public safety. It would lessen public safety, because it would remove the possibility of people engaging in our criminal justice system.

We have to look at how this system has operated. What is the reality of what has happened over the years? How has it functioned? Why would we consider changing the program if there is no evidence that there has been a problem? This is crucial.

There are statistics and facts to bring to bear when we look at this matter. I will give the House one statistic. Of 620 Canadians who were transferred back to Canada under this program between 1993 and 2007, and who were reviewed for readmission to penitentiary in the two years after their sentence expired, only four were readmitted for a new offence. This is .6% of the 620, a .6% recidivism rate among people who were transferred back to Canada to serve out a sentence for a crime they committed overseas. That is an incredibly low recidivism rate.

There is probably nothing in our criminal justice system that could approach this rate of success in ensuring that people do not get into more trouble once they have done their time. The general recidivism rate in our corrections system is around 20% to 25%. This by any measure has been an incredibly significant and successful program.

Given that kind of success rate, a recidivism rate of only .6%, that is, only four people with serious problems out of 620 between 1993 to 2007, it is beyond me why the government would change this program, make it more difficult to participate in it, or even suggest that we ought to increase the ability of a minister to deny someone access to a transfer back to Canada to serve out his or her sentence.

This program has worked. This is a program that we have long-standing experience with. This is a program that allows someone who has gotten into trouble overseas to engage the criminal justice system and correction system in Canada and take advantage of rehabilitation, substance abuse, and anger management programs. We have built these programs into our criminal justice to make our communities safer and to ensure that people who get into trouble have a way out, a way of turning their lives around after making mistakes.

This program allows participation in those kinds of programs. Yet there is a suggestion from the government that we should turn our backs on that success. I think it is absolutely incredible, to put it mildly, that the government has cooked up some mysterious reason that this is an urgent issue demanding the immediate attention of Parliament. There is no reason for us to take up our time in reviewing this program. The program is working and it is necessary. It is an important program for Canadians.

We have heard other reasons in the debate this afternoon about how the program sometimes permits people who have been unfairly convicted overseas to find a way back to Canada. That is one situation that we also need to keep in mind. We have recognized problems with criminal justice systems in other countries, and this program has given us a way of ensuring that Canadians have some recourse when they have suffered unfair convictions overseas. That is something we also need to keep in mind when we look at this.

I believe this is ill-conceived legislation, and I hope it will go down to defeat very shortly in the House. I cannot tell the government to go back to the drawing board, because I do not know what the issue was that it was trying to address in the first place. I do not think it should be mucking around with this successful and important program.

There is little more to be said, except that this bill deserves to go down to defeat in the very near future.

International Transfer of Offenders ActGovernment Orders

September 23rd, 2010 / 1:05 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, Bill C-5 is in its second incarnation in this House. It was first introduced as Bill C-59 in November 2009. Of course, it got killed as did so many other really important pieces of crime legislation that absolutely had to be passed immediately. Because of the Prime Minister's prorogation of Parliament in late December 2009, it went down the tubes as did all the other bills at that time. In spite of the protestations and advocacy we heard from the government side about the absolute need to pass these bills immediately, of course prorogation was more important. The bill was then reintroduced in April when it had three hours of debate. The government never did bring it back in the spring, but finally brought it back in the fall of this year.

This bill is quite offensive to a fundamental principle of our democracy, and western democracies in particular. That principle is the rule of law. This is not the only bill where the government has attempted to do this, and in some cases has done it, but it shifts significant power into the whimsical hands of ministers. When I see that, I sometimes think we are back at the point where we have the divine right of kings, that rule where the government of the day gets to make whatever decision it wants based on whatever reason it wants. That basically is what the bill would do.

We just heard from my colleague from Burnaby—Douglas that the system as it is right now, since 1993, has had four cases of recidivism out of 620. That is a rate of .6%.

I will come back to this point in more detail vis-à-vis the two cases that came down on Tuesday of this week from the Federal Court where the decision, again a whimsical decision, of the minister of public safety of the day was overturned. If we proceed with this bill and more prisoners in other countries are refused access to this program, what happens then is they will come out of prisons in other countries where there has been no rehabilitation program at all and will come back to Canada without any criminal record, which makes it difficult for our police forces to be able to pursue them. They will come back to Canada without any parole provisions or any supervision post-custody, because of course that is all done in the other country. They will come back here because they are Canadian citizens and we have no basis for not letting them back into the country. That may be something the current government will try taking a shot at, again. However, we cannot do that under international law. They will come back to Canada without a criminal record, having received no rehabilitation while they were incarcerated and with no supervision control over them when they are back in Canada.

I ask the government to stop and think for a minute about what that means vis-à-vis recidivism and the likelihood of more crimes being committed by those individuals who oftentimes have been convicted of fairly serious crimes in other countries.

We talk about safe streets and safe communities; they are speaking points, buzzwords. How safe are our streets, how safe are our communities going to be when we dump those people back into our communities with no supervision, no rehabilitation? Oftentimes they are coming out of prisons in other countries that just hardened them. Oftentimes they come back with serious mental health problems as well, if they did not have them before. That is what is going to happen if we reduce the number of cases that are allowed access to this program.

It has been an extremely successful program. There is no other program that anyone can point to with that low a recidivism rate. There is not one in Canada. I do not know if the government thinks that by doing this it will somehow reach perfection. The opposite is going to happen. Many more people will come back after many years of incarceration elsewhere and commit serious crimes in this country.

If we keep the program as it is now, it could use some fine tuning. If we keep it as it is now, we allow access to it. When people are incarcerated here, we see to it that they go through the rehabilitation programs in Canada. When they are released, it will be under parole supervision, oftentimes for extended periods of time. They will have a criminal record in Canada. All those mechanisms will exist to protect our communities. They absolutely disappear if people do not get access to this program.

There is another point I would like to make with regard to the actual provisions in the bill itself. The government has listed eight criteria, all discretionary on the part of the minister to consider. I listened to my colleague from the Conservative Party who spoke just before me. He said that these things do not have to be taken into account. Sure, it would be good to know whether an individual in a prison in another foreign jurisdiction had refused rehabilitation programs, but the minister does not have to take that into account. All eight of the criteria are met.

This brings me to the kind of exercise of discretion that we have seen. On Tuesday, two rulings came down from the Federal Court. I have to apologize that I was not able to get the actual rulings and I am working with some of the quotes that have been taken by media out of the rulings. There are two separate cases.

In one case the court clearly and bluntly said to the minister, “We don't understand how you could have drawn these conclusions. The facts in the case are this. You made your determination and said the facts of the case are exactly opposite”. That is the kind of whimsical discretion we are seeing exercised by government ministers in the face of legislation that requires them to exercise their discretion reasonably, which was another determination the court made in that case, that it was not exercised reasonably.

The reasons given were completely contradictory to the actual facts as found by the trial judge in that case, completely contradictory. It was not just the trial judge, by the way, it was also the prosecutor. The case was overturned and sent back for reconsideration by the minister. One can only guess what is going to happen if that case comes up under the legislation being proposed. The current legislation will not apply because it will not be retroactive.

The court very clearly told the minister that he did not know what he was doing, that he was doing it all wrong and completely backward. Now the government is proposing to give other ministers unlimited discretion. The wording in the last of the eight criteria reads this way, “any other factor that the minister considers relevant”. If the minister considers the colour of the prisoner's skin, the colour of his eyes, whether he has short hair or long hair as relevant, he or she can determine that. There is absolutely no limit to what is relevant because it is all at the whim of the minister.

We are hearing from the Conservatives that this is sub judice, but there is no realistic possibility for an appeal of this case. The Federal Court judge decided that case on the facts of these two cases. The second case is troublesome from one standpoint. I believe that the wording is accurate, but I am only quoting from the article in the newspaper.

What Justice O'Keefe said was that the courts “cannot condone nor accept completely unstructured discretion”. If they apply that, in the light of the charter, this law will not survive a charter challenge. It is quite clear in that wording.

What we will hear at the public safety committee, if it gets there because there is substantial opposition from all opposition parties, but if it does pass at second reading and gets to committee, is the minister saying that he has had his people look at this and that it is charter proof. We have heard that from the Conservatives a number of times with a number of cases on other bills they have passed, supported, oftentimes, by the Liberals, and then struck down because they are not charter proof.

We have heard reports in the last few weeks in the media about well qualified public servants within the Justice Department speaking anonymously that they are constantly under pressure to agree to let the courts decide. They hear from the minister and the minister's office, whether it is public safety or the justice minister, “Don't worry about it, don't worry about the charter. If we're wrong, let the judges fix it”. That is not only an abdication of responsibility but it is also a dishonest approach both in the House and to the public safety and the justice committee and to the public generally.

The Minister of Justice and Attorney General of Canada has a responsibility to not present legislation to the House that clearly will not survive a charter challenge. It is not a maybe might survive, but we will let the judges decide. The Minister of Justice and Attorney General of this country has a responsibility to only present legislation that he believes, based on firm opinion and on the law and the charter, that it will survive a charter challenge. That is not what has been happening since the Conservatives have taken power.

We are constantly seeing sections come through both the justice committee and the public safety committee, sections that will not survive a charter challenge, but we are hearing from the Minister of Justice and Attorney General that they will. Then cases come on and there are many more pending. We know there are all sorts of sections that will get struck down. This is almost certainly one of them based on the decision of the Federal Court on Tuesday.

We in the opposition parties are faced as a Parliament at this point of having to tell the government that based on this decision it should withdraw the bill, take it back and have another look at it. I will concede that there are some provisions with regard to the eight point criteria that we would be prepared to support. As I mentioned earlier, if we know from the other jurisdiction that a prisoner has refused to take rehabilitation programs in that jurisdiction while incarcerated, that should be taken into account, not may be taken into account, by the ministers as to whether they will allow the person into the program. We would accept that.

The bill should be sent back to the Department of Justice, redrafted to make those criteria that are acceptable mandatory, that the minister must take them into account in making a decision and, of course, removing the absolute discretion of the minister that the bill is proposing at this time.

I will now talk a bit more about some of the cases I have had to deal with in my office since the government came into effect. We are now on our third public safety minister but they have basically all acted the same way. There has been a significant increase in the number of rejections by the government minister of the day since the Conservatives came into power, cases that have cried out.

I remember one case a member from Edmonton raised and then got slapped down by the minister, and I assume by the Prime Minister's Office, involving a case of a person incarcerated in Cuba. I have had two of those myself in my office where they were denied access to the program.

In all three of those cases that I know quite intimately, under the old regime, prior to these minsters, all three of those people would have been admitted back into Canada. In all three cases, the fact that they were not, we are going to get people back in our country who are not going to be supervised, who will not have a criminal record because they did not have one when they left Canada and, as all three of those cases are in Cuba, none of them had access to any rehabilitation programs. One of the cases involves a severe health problem. I am not sure that person will ever make it back to Canada. He may very well die in a prison in Cuba. It was not a death sentence that he was sentenced to either.

Then we have that really notorious case in Florida of a young man out of Quebec suffering from bipolar or schizophrenia. This has all been in the paper and so I am not releasing any information that has not been made public by him and his family. On his way down to Florida he stops taking his medication. He gets into a fight just inside the Florida border and, in the course of the fight, the other combatant is killed. He is convicted to the equivalent of our second degree murder or manslaughter. He is receiving absolutely no treatment. He is not even getting most of his medications while incarcerated and sentenced to life. All of that information was put before the minister and he rejected him having access to the program. The state of Florida did allow him to have access to the program.

I do not know if I made this clear, but the jurisdiction where the person is incarcerated must agree first that the person will be released back to Canada and then our minister needs to go along with it. Florida officials said that they would release him back to Canada so he could serve the time in Canada but our minister rejected that.

We have those kinds of cases. Their conduct is inhumane. What we will be doing here with this bill, if it goes through, is augmenting extensively their ability to do it, if it survives the charter challenge. It is a very offensive bill from that vantage point. I go back to my opening comments when I said that we are a democracy, that we are based on the rule of law.

I happened to be flying during the summer break near the end of the summer and I watched the current Robin Hood movie. There we had it, 900 years ago. Our system began to curtail absolute discretion on the part of our rulers and replaced it with rule of law. This bill would take us back to a similar period of time where we do not have rules that ministers have to follow, exercising their discretion within those. Our charter says that we should and I hope, should this bill ever get into law, that the charter will be strong enough to reject this and say that it is unconstitutional and offensive to our rights in this country.

That is not the route we should go. We should not fall into the trap that the Conservatives have fallen into of saying, “Well, we are not sure, but this is what we want to do ideologically, this is what we want to do politically, we have to be seen to be tough on crime and so we will let the judges decide”.

This is a minority government and the opposition parties have a role to play. We will not fall into that trap. We are parliamentarians and we have a responsibility to protect all of our citizens from unjust laws. This is an unjust law and we should all vote against it and defeat it at second reading.

Keeping Canadians Safe (International Transfer of Offenders) ActGovernment Orders

April 22nd, 2010 / 1:45 p.m.
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Liberal

Marcel Proulx Liberal Hull—Aylmer, QC

Madam Speaker, today I rise to share my thoughts on Bill C-5, An Act to amend the International Transfer of Offenders Act, with my colleagues.

I want to begin by stating that my deepest desire is to see an environment that promotes safety everywhere in Canada so that all Canadians can be safe no matter where they are.

There are many ways to achieve that goal. Today we are debating one of those ways.

Bill C-5 would amend the International Transfer of Offenders Act. This bill would enable the government to request the transfer of Canadian prisoners serving sentences in countries other than Canada.

Bill C-5 is part of the Conservative government's extreme law and order agenda. The militant western Conservative base strongly supports this vision.

Make no mistake about it, this bill is an opportunistic attempt to garner votes. It seeks not only to protect Canadians, but also to get the law-and-order Conservatives re-elected at any cost.

According to the bill summary, one purpose of the bill is to enhance public safety. Clause 3 adds another objective to the Act:

The purpose of this Act is to enhance public safety and 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 think that if we add this new objective and give the minister discretionary powers with respect to factors he may take into consideration, the minister will be able to use public safety as grounds to deny as many requests for the transfer of Canadians incarcerated abroad as possible, thereby undermining all of the other objectives of the Act.

I will attempt to show that this bill will weaken public safety, not enhance it. Prior to this, the notion of public safety was, in practice, limited to terrorist threats and threats of war against Canada or against the general population.

In a Federal Court case, Getkate v. Canada (Minister of Public Safety and Emergency Preparedness), the judge had this to say about public safety:

—the Court also finds that there is no evidence on the record demonstrating that the applicant constitutes a potential threat to the safety of Canadians or the security of Canada. While the minister attempts to invoke the section as a means of demonstrating that the applicant poses a general threat to Canadians should he be returned to Canada, use of the phrase “threat to the security of Canada” has traditionally been limited in other legislation to threats of general terrorism and warfare against Canada or threats to the security of Canadians en masse. In the case at bar, while the applicant may pose a general threat to specific pockets of Canadian society should he re-offend, he clearly poses no “threat to the security of Canada” as the term has been interpreted in other legislation, such as the Immigration and Refugee Protection Act...or the Canadian Security Intelligence Services Act.... If the threat to Canada was the mere risk that the offender would re-offend, then such a consideration could be applied to every inmate seeking a transfer.

In this matter, the judge set aside the minister's decision.

Is this bill the minister's way of reacting to the judge's decision in the Getkate case? Is it an attempt to close the door to any judicial control over decisions? It is already very difficult for a judge to set aside a minister's decision.

I am not a legal expert but I know that, to be set aside, a ministerial decision must be found to be “unreasonable”. The burden of proof was very high for the individual and he had little chance of winning.

However, in the Getkate case, the judge set aside the minister's decision, despite all his discretionary power and the substantial burden of proof.

Bill C-5 gives the Minister of Public Safety a great deal of discretionary power and opens the door to abuse of power.

Under the current act, the minister considers four factors in determining whether to consent to the transfer of a Canadian offender. Those factors are: whether the offender's return to Canada would constitute a threat to the security of Canada; whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence; whether the offender has social or family ties in Canada; and whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights.

Bill C-5 gives the minister some very important additional discretionary power. The minister may consider other factors. The bill does not say that the minister does or shall consider these factors, but that he may consider them.

These are the factors added in the bill:

(b) whether, in the Minister’s opinion, the offender’s return to Canada will endanger public safety, including

(i) the safety of any person in Canada who is a victim, as defined in subsection 2(1) of the Corrections and Conditional Release Act, of an offence committed by the offender,

(ii) the safety of any member of the offender’s family, in the case of an offender who has been convicted of an offence against a family member, or

(iii) the safety of any child, in the case of an offender who has been convicted of a sexual offence involving a child;

(c) whether, in the Minister’s opinion, the offender is likely to continue to engage in criminal activity after the transfer;...

(g) the offender’s health;

(h) whether the offender has refused to participate in a rehabilitation or reintegration program;

(i) whether the offender has accepted responsibility for the offence for which they have been convicted, including by acknowledging the harm done to victims and to the community;

(j) the manner in which the offender will be supervised, after the transfer, while they are serving their sentence;

(k) whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency; or

(l) any other factor that the Minister considers relevant.

This list includes everything but the kitchen sink. It is broad. It is a very significant power to put in the hands of a single person, especially when we know that the current government is a government of law and order whatever the cost. This is all very subjective and is an attempt to win votes.

We live in a democracy based on the rule of law where every decision must be fair and meet objective criteria.

I sincerely believe that when we entrust so much power to a minister in the absence of any objectivity, we may be abandoning Canadians to the whims of this government. When the public no longer knows how the government will handle requests, it may lose confidence in a system that is neither fair nor transparent.

I would like to read an excerpt from an article by Nathalie DesRosiers, professor of law at the University of Ottawa. Ms. DesRosiers was the dean of the faculty of law and she is speaking on behalf of the Civil Liberties Association about Bill C-59, which preceded the current Bill C-5 before the unnecessary prorogation of last December:

Even if some Canadians believe that Ministers in Canada would never make decisions based on such sordid grounds as political contributions, there is the appearance that they may. Indeed, the lack of boundaries to such discretion prevent an analysis of whether a decision is fair, sound and wise, based on a consideration of all factors.

It also prevents any legal accountability. This, in my view, is going in the wrong direction. Although politicians certainly have the power to conduct international relations on behalf of Canada: they should want to exercise it in a way that is fair and transparent. The absence of rules prevents Canadians from knowing how they will be treated and exposes the government to charges of favouritism when they act or refuse to act. Indeed, when a white Canadian is repatriated speedily from Mexico while an Afro-Canadian is left in jail in Sudan, Canadians wonder whether the government is acting fairly and reasonably or in a racist manner. A stronger legal framework helps dispell such accusations and allow for more transparent ruling.

I believe we must not only avoid putting decision makers in positions that could lead them to abuse their power, but we must also avoid any appearance that they may have such power.

I would like to share with my colleagues the case of a young constituent from Hull—Aylmer, who is currently being detained in a penitentiary in Florida after being found guilty of crimes committed in the United States.

Mr. Speaker, since my presentation on this young resident could take several minutes, I suppose we should stop now so that you can proceed—

Keeping Canadians Safe (International Transfer of Offenders) ActGovernment Orders

April 22nd, 2010 / 12:15 p.m.
See context

NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, I am very pleased to rise today and speak to Bill C-5. I am following some very excellent speeches on the part of other members in the House from the Liberal Party, the Bloc and certainly my party, the NDP.

Bill C-5, keeping Canadians safe, is to amend the International Transfer of Offenders Act. This particular bill was introduced in the House on March 18, 2010, by the Minister of Public Safety. It is almost identical to Bill C-59, which received first reading during the second session of the 40th Parliament but died on the order paper when Parliament was prorogued on December 30, 2009.

We get to the point again of the Prime Minister's proroguing Parliament and having to reset the entire agenda, reintroduce all the bills and go through all the debates. Each time he prorogues the House, he sets back the Parliament in this country by a year or two in the process.

Bill C-5 amends the purpose of the International Transfer of Offenders Act as well as the factors for the minister's consideration in deciding whether to consent to an offender's transfer. This bill is all about transferring discretion. Under the old bill, there was a set procedure for bringing people back. It has worked well for 29 or 30 years in this country. As a matter of fact, not one person who has been repatriated has reoffended under the program. The government, for whatever reason, has decided it wants to transfer more power to the minister so the minister can decide who gets to come back.

Canada has been a party to treaties related to the transfer of offenders, as I said, since 1978. These agreements have been characterized as humanitarian in nature. They enable offenders to serve their sentences in their country of citizenship to alleviate undue hardship borne by offenders and their families and to facilitate their eventual reintegration into society, because at the end of their sentences, they will come out.

The argument that we and other parties have been presenting in the House over and over again is that, in the Canadian system, they will be subject to rehabilitation and programs. These programs are often not available in other jurisdictions. Most of the people being brought back under the program are in United States jails, and the United States does not have a very robust system for dealing with the rehabilitation programs and treating the prisoners.

The Transfer of Offenders Act came into force in 1978. It was modernized by the International Transfer of Offenders Act in 2004. The act enables offenders to serve their sentences in the country in which they are citizens or nationals. Generally speaking, the principle of dual criminality applies here, so that the transfer is not available unless the Canadian offender's conduct would have constituted a criminal offence in Canada as well.

A transfer can take place only with the consent of the offender, the foreign entity and Canada. It is the minister, currently defined as the Minister of Public Safety and Emergency Preparedness, who decides whether to consent to the transfer into Canada of a Canadian offender or the transfer out of Canada of a foreign offender, because it is a two-way street here. In making that decision, the minister is currently required to consider certain factors, such as whether a Canadian offender's return to Canada would constitute a threat to the security of Canada and whether that offender has social or family ties in Canada.

Once an offender is transferred, his or her sentence is administered in accordance with the laws of the receiving country. The Correctional Service of Canada notes in its international transfers annual report for 2006-07 that if offenders are not transferred, they may ultimately be deported to Canada at the end of their sentence without correctional supervision, which is very important, and without the benefits of programming.

I have a copy of that report. I want to take a moment to read the conclusion because there are many good elements to that report. It states:

An analysis of the information contained in this report doesn't only demonstrate that the purpose and principles of the International Transfer of Offenders Act have been fulfilled; it supports that the International Transfer of Offenders program is consistent with the Mandate of the Correctional Service of Canada (CSC) and it's Mission Statement in that the program contributes to public safety by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control. It ensures that offenders are gradually returned to society and that they have the opportunity to participate in programming that targets the factors that may have led to their offence.

The reference to public safety is there. The government seems to suggest that it has to make these amendments because somehow it would enhance public safety, ignoring the fact that the transferees who come from the foreign jails are not coming out on the street. They are going directly to jail. They are not going to be a danger to public safety in Canada, because they are not going to be walking the streets. They are going to be in jail presumably being subject to programming efforts and proper supervision. When they are let out, they will be supervised through that process as well.

On the other hand, if they come out of the American jail after a period of time with no proper programming, then they are essentially time bombs. They are going to be coming back to Canada and they are not going to be supervised. Then they could be a threat to public safety.

That is exactly what we are trying to prevent. The government is basically on the wrong track. As we see with many of the measures it takes, it is all about the headline. That is all it really cares about, as well as what is happening with the poll numbers. It is not concerned about what works and what does not work.

As I have indicated before, the media in this country should take their jobs seriously on this issue and become more critical of the government and start writing headlines a little different from the ones the Conservatives are getting, headlines that say, “Conservatives wrong on crime”, “Conservatives do what doesn't work again”. If the government started getting headlines like that, then perhaps it would retreat a bit and not be so eager to keep putting Parliament and the public through this whole exercise of what it has been doing.

As I have indicated on several occasions, there are smart lawyers on both sides of the House. There are particularly good lawyers on the Conservative side of the House as well. I do not know how they justify doing things like this.

Just so people who are watching know the total number of transfers, a total of 1,351 Canadian offenders were transferred to Canada between 1978 and 2007. Therefore we are not talking about huge numbers. Of these, 1,069 or 79% of them came from the United States.

The other countries from which most Canadians were repatriated were Mexico at 59 offenders or 4.4% of the transfers; the United Kingdom, at 33 offenders or 2.4% of the transfers; Peru at 31 offenders or 2.3% of the transfers; Trinidad and Tobago at 20 offenders or 1.5% of the transfers; Thailand at 17 offenders or 1.3% of the transfers; Venezuela at 17 offenders or 1.3% of the transfers; Cuba at 16 offenders or 1.2% of the transfers; and Costa Rica at 14 offenders or 1.0% of the transfers.

Fewer than 10 offenders were repatriated from any other country. I think a lot of people would perhaps not be surprised with those figures, but in a way might be because I would think that a number of people would be thinking that people were being transferred from places like Turkey, and of course that does not seem to be the case.

The number of offenders transferred to Canada in the fiscal year has ranged from a low of seven in 1980-81 to a high of 98 in 2003-04. In 2006-07, 53 offenders were transferred to Canada, which was the lowest annual total since 1994-95, when 40 offenders were transferred. In the last 10 years for which statistics are available, 1997-98 to 2006-07, 768 offenders were transferred to Canada for a yearly average of 77.

So, we are not talking about a tremendous number here. These are reasonably small numbers, over a 30-year period. Of those 768 offenders, 313, 40% of them, were transferred to the Ontario region; 207, or 27%, transferred to the Pacific region; 200, or 26%, transferred to the Quebec region; 33 people, or 4.3%, transferred to the Prairies; and 15 people, or 2%, were transferred to the Atlantic region.

In terms of transfers from Canada, a total of 124 offenders were transferred out of Canada between 1978-2007. Of these, 106 offenders, 85% of them, were transferred to the United States. No matter which way we look at it, the transfers back and forth are overwhelmingly between Canada and the United States. Very small numbers exist on either side for countries other than the United States. Eight offenders, or 6.5%, were transferred to the Netherlands; three people were transferred to the United Kingdom; two were transferred to France; and one was transferred to each of the following countries: Estonia, Ireland, Israel, Italy and Poland. And 90 of the 124 transfers took place between 1978 and 1983.

Since then, transfers from Canada have generally taken place at a rate of one or two offenders per year; although there were three transfers in 1990-91, all to the United States, and four in 2006-07, one each to Estonia, France, Israel and Italy.

Now, in terms of the applications and denials, which is the reason behind the government bringing in this legislation in the first place because it had one or two cases where it was not happy with the results, in the last five fiscal years for which statistics are available, the international transfers unit of Corrections Canada received 1,314 applications for transfer. Of those, only 27%, 367, have resulted in a transfer, while 519, or 39%, were denied, and some applications are still being processed.

In one of the press releases that the government sent out, it brags about the fact that its number of approvals has been slashed. It is taking the small numbers of people who are involved in the transfer program, in the first place, and essentially cutting them down drastically. I have the statistics here. That is what the end result of this exercise will be.

When the minister wants and gets more discretion, the end result of that process will be that less people will be involved in the transfer and more people will be staying in the prisons in countries outside Canada, fulfilling their full sentence. Then they will be coming back to Canada without any kind of treatment or any kind of programs that would make them better candidates for integration and, I guess, less of a risk to public safety. When they come back from the United States with no training and no programs, they are not going to be supervised here, and then they are going to be a threat. They are going to be a public safety risk.

We are going to have the opposite effect of what the government actually wants. This is absolutely crazy. We want to have a system that shows results. We want to adopt practises that actually work.

I do not know how many times we have spoken in this House about how the American system, during Ronald Reagan's years, during the “three strikes and you're out” and the minimum sentences, produced a huge construction boom in the United States for prisons, many of which became private prisons so private entrepreneurs could make money. These prisons basically warehouse a huge number of prisoners. Guess what? The crime rate did not go down but instead went up. The U.S. economy is in such bad shape right now that the California governor is just letting people out of prison without having taken any programs, which will basically allow the prisoners to reoffend again.

The Conservative government obviously does not have any common sense. Why would it adopt a system that is 25 years old and has a bad track record? I do not know why the government would not canvass the world, find programs that actually work regardless of the country, send teams of people to study the program, and implement that program here. That is the sensible way to do it, but the Conservative government does not do things like that. The government picks programs that do not work.

In Manitoba we enforced the immobilizer program on insurance companies and provided it free to drivers. This program has cut the auto theft rate by 40% in about a year. We beefed up the crime prevention unit to concentrate on the 50 people who were stealing most of the cars. This program actually works and other jurisdictions are looking at copying what is being done there.

That is the kind of approach that the government should be taking toward criminal justice in this country, or any other program in this country. The Conservatives are ideologically bound to their American Republican cousins. They have taken the attitude that if it did not work in the United States then let us not make it work here. That seems to be their approach.

I do not know how we can get through to Conservative members. We are sitting in a minority government. With friends like Rahim Jaffer and others, the Conservatives will have a minority government forever. A majority government will probably never happen.

In their own minds, the Conservatives seem to think that they have a majority government. They keep pretending they have a majority government. They bring in bills that have no chance of making it through the House. We have to question why they would keep doing this. Then they prorogue the House and start over again. The public must be shaking their heads. I have asked people about this and some have come to the conclusion that the Conservatives are not actually tough on crime but are actually soft on crime.

There is a real lack of credibility and a real disconnect with the Conservative government and some of the legislative efforts that it makes. The programs in the system do not actually work.

I have become sidetracked once again. I have pages and pages of notes. I could probably speak for another hour on this subject, but I understand that my time is running out. Perhaps when members ask me questions I could make some more comments on some of the sections I missed in my speech. Having said that, I want to yield the floor to people who want to ask questions.

Keeping Canadians Safe (International Transfer of Offenders) ActGovernment Orders

April 21st, 2010 / 3:45 p.m.
See context

NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I am pleased to speak on behalf of the New Democrats on Bill C-5, An Act to amend the International Transfer of Offenders Act. By way of background, Bill C-5 is virtually identical to former Bill C-59, which was introduced in November 2009.

When Parliament prorogued, Bill C-59 died before it received any debate in the House. It was one of a suite of criminal justice bills, 17 as a matter of fact, which bills were actually killed by the government when in December last year it chose to prorogue Parliament and hold up much of the legislation that Canadians want and hold up the debate on many of the issues that ought to be debated.

Bill C-5 contains amendments to the International Transfer of Offenders Act. It would be helpful for all members of the House to consider the history and background of this act. Canada has had legislation providing for the international transfer of offenders both from Canada and into Canada since 1978. The International Transfer of Offenders Act was enacted in 2004 and replaced the old Transfer of Offenders Act.

The act essentially provides a mechanism for a foreign national imprisoned in Canada to apply for a transfer to his or her home country to serve the remainder of his or her sentence. Similarly, the act provides a mechanism for a Canadian citizen imprisoned abroad to apply for a transfer back to Canada to serve out the remainder of his or her sentence here in Canada.

As I said, the old act and the current act together have been in force for over three decades in this country. Both the Liberals and the Conservatives have been in power and overseen the administration of this legislation. Liberal governments and Conservative governments have overseen the transfer and repatriation of Canadian citizens back to Canada.

Between 1978 and 2007, which is the most recent year for which comprehensive statistics are available, 124 foreign nationals were transferred out of Canadian jails, and 1,351 Canadian citizens were transferred back to Canada.

The purpose and principles of the act are quite clear. The current purpose of the act is defined in section 3, which states:

The purpose of this 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.

The Correctional Service of Canada has a website dedicated to the International Transfer of Offenders Act. This website gives more detailed background about the principles underlying the international transfer mechanism. I will quote from that. It states:

Canadians incarcerated in foreign countries often find themselves facing serious problems coping with local conditions. The most common problems involve culture shock, isolation, language barriers, poor diets, inadequate medical care, disease and inability to contact friends and family....In some prison systems, the offender's family is even expected to provide food and financial assistance. The purpose of these agreements is humanitarian to enable offenders to serve their sentence in their country of citizenship, to alleviate undue hardships borne by offenders and their families and facilitate their eventual reintegration into society. Once transferred, the offender's sentence is administered in accordance with the laws of the receiving country.

In the case of offenders, Canadians coming back to Canada, that means serving their sentences in accordance with sentencing principles of Canada. I want to emphasize that those are not my words that I just read. Those are the words of the Correctional Service of Canada. That is the description by the people we entrust, who have expertise in carceral policy in this country. It has been the policy of this country for 30 years. These are the principles the government seeks to change by this very flawed, poorly conceived, unjust and totally ineffective legislation.

Let us consider the current process for a transfer application under the act. For a transfer of a Canadian citizen to take place, the offender must consent to the transfer, the country where the offender is currently imprisoned must consent and the Canadian government must consent. Let us be clear. This requires tripartite agreement of all of the actors and it requires them to agree in every particular case, without which the transfer application will not proceed.

The Minister of Public Safety is then designated to review all applications for offender transfer. The present act specifies the factors that the minister shall consider when evaluating an offender's application for transfer. In section 10, four criteria are outlined. Let us consider whether these criteria are appropriate.

First, the minister must consider whether the offender's return to Canada would constitute a threat to the security of Canada. Right there, the national security of Canada is four-square in front of us as a criterion that must be considered. Second, the minister must consider whether the offender left or remained outside Canada with the intention of abandoning Canada as his or her place of permanent residence. Again, this is not a provision for fair-weather Canadians who then want to seek the protection of Canada. This is for Canadians who happen to be abroad when a criminal offence is committed by them.

Third, the minister must consider whether the offender has social or family ties in Canada. Fourth, the minister must consider whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights. These four criteria have been applied successfully and well by every government in this country for over 30 years. However, the current government suddenly has problems in applying these criteria.

I will pause here to say one thing. My research indicates that not one offender, who has been granted a transfer back to Canada to resume and serve his or her sentence, has ever reoffended. I think that the changes proposed by Bill C-5 will reveal to all Canadians and members of the House how poorly this bill is conceived. Bill C-5 seeks to add the words “to enhance public safety” to the purpose of the act. I am going to come back and talk about that in a minute because of course everybody is in favour of public safety.

The act currently states that the minister shall consider the factors that I just outlined. Bill C-5 would change this to read “the Minister may consider the following factors”. Bill C-5 also seeks to add the phrase “in the Minister’s opinion” to the existing factors laid out in the act. Bill C-5 would also add seven new factors, once again that the minister “may” consider.

I am going to stop there to say that the Conservatives have taken a judicial, legal process under a statute of Canada and have essentially said that the only Canadians who can be transferred back into this country, who have been convicted abroad, are people that the minister wants. That is it. There is no judicial way to challenge that. There is no legal way that a person could compel the minister to consider certain factors. It is whatever the Minister of Public Safety wants.

That is bad public policy and I would say that whether the minister of public safety was a New Democrat, a Liberal, a Bloc Québécois member or a Conservative. It is wrong.

There is a saying that we use in law schools to describe completely arbitrary law. We say that justice is measured by the length of the chancellor's foot. It might be six inches, eight inches or 10 inches. Nobody can ever tell because it is whatever is subjectively in the mind of that chancellor.

This is exactly the kind of legal thinking that typified our system 300 years ago, much before we had concepts like human rights, due process or rule of law. I would not expect the government to understand that, considering some of the legislation I see coming out of it.

These are some of the factors that the minister may consider: whether the offender is likely to engage in criminal activity in Canada, the offender's health, whether the offender has participated in rehabilitation programs, the manner in which the offender will be supervised after this transfer, and whether the offender has co-operated with police.

Let me stop here and say a couple of things. Think of this in terms of public safety. Say we had a Canadian serving a sentence in a Pennsylvania prison, much like David Radler, the person involved who was convicted and testified against Conrad Black. By the way, he applied under this legislation and was approved by the government to come back and serve his time in Canada. I did not hear the government complaining when a multi-millionaire applied under the International Transfer of Offenders Act and was granted the ability to come serve his time in Canada. I heard not a peep from the government.

However, if a person applied from Pennsylvania and came to Canada, that person would be coming here directly to jail. There is no public safety component to that. If that individual is serving time in a U.S. prison, that individual would continue to serve the time in a Canadian prison. There is no public safety aspect whatsoever. That individual is not coming back to this country to actually re-enter society. That individual is coming back to Canada to re-enter penitentiary.

One might say that people are going to be released into custody. This the major flaw and absurdity of the bill. When those people finish their sentence in Pennsylvania, the first thing the United States is going do is deport those offenders back to Canada and Canada has no choice but to receive them. So those people are coming back into Canadian society at the conclusion of their sentence no matter what. I will talk in a minute about how foolish that is and how this act actually makes Canadians safer by having those people transferred to a Canadian jail.

I want to talk about public safety because public safety is important. New Democrats agree that enhancing public safety should be given consideration when considering any piece of legislation that comes before the House. However, in this case the government has not presented one iota of evidence that public safety is being compromised under the current act. Nothing. But I have heard the public safety minister as well as members of the public safety committee say that they do not care about statistics, they do not care about the facts. They think they can define what are good criminal penal laws in this country by what they think or feel as opposed to the data.

It is important to remember that Canadians transferred back to Canada under the act are not being released immediately into the community and again, they are returning to serve out their prison sentence in a Canadian correctional facility.

I mentioned earlier why I think that public safety is enhanced by granting prisoner transfers. Offenders who serve their sentence in Canada will be subject to the oversight of a parole officer, released with conditions that must be followed ,and can have their rehabilitation and reintegration into the community carefully planned and monitored. The offenders who are sitting in a Pennsylvania jail or a Mexican prison have none of those things.

Offenders who serve their time in a foreign jail often have no rehabilitation, no programs, no substance abuse programs, no mental health programs, often nothing. In fact, often it is the case that they do not even speak the language of the country in which they are imprisoned.

Most importantly, Canada has no record of offenders who are not transferred back to this country, when they are released from a foreign jail and come back to Canada. They will come back to this country and we have no criminal record. We have no record of them serving time in prison. They will come back and they will be treated as a first offender if they do ever commit a crime in Canada.

Whereas, if they are transferred to a Canadian prison, we will have records. It will not be the criminal record. We will have records of them being in a penitentiary and then of course again, when the offenders are released into the community we can actually spell out the conditions of that release and supervise them. So it is actually less safe to pass this legislation. The Conservatives are endangering Canadians by passing this legislation because it will result in fewer people who are being approved for transfer.

I want to talk about whether there is actually a problem to be fixed here. The act is working. The Conservatives are trying to build a narrative that says that Canadians are being endangered because the Conservatives do not have enough power to deny applications for transfer. Again, I will trouble them with the facts.

From 2002-07, under both Liberal and Conservative governments, 367 applications for transfer were approved by the ministers involved and 24 were denied. So 367 times both Liberals and Conservatives decided to bring an offender back to Canada. Of those 24 denials, 3 offenders applied for judicial review of the minister's decision. One case was a denial based on the fact that the offender had spent 10 years in the United States and was deemed by the minister to have abandoned Canada as his or her place of permanent resident. So the federal court judge made a ruling stating that the court should not readily interfere with the discretionary decision of a minister and held that the minister's findings were not unreasonable.

Another case was a denial because the minister held that the prisoner had been identified as a member of a criminal organization and that the transfer would threaten the security of Canada. In that case, the CSC gave advice to the minister that the transfer would be highly beneficial and that the individual would not constitute a threat to the security of Canada. Nevertheless, the judge held that the decision of the minister was reasonable and the denial was allowed to stand.

Of the three denials, two cases were challenged and the minister's discretion was upheld. In the third case, the minister again made a denial on security grounds. The judge in that case, however, found that the decision of the minister was made with disregard to the “clear and unambiguous evidence” presented by the government's own officials. In this case the judge referred the decision back to the minister for re-determination.

The government points to this one case where a judge has overturned a ministerial denial, and on this basis it says, “Oh, we need to tighten the law”.

There was another case reported earlier this year, however, that I think is probably more revealing of the government's true feelings on this. This is where the judge did order a reconsideration of ministerial denial. In this case four individuals were convicted together of a single crime. Two of the individuals had transfer applications approved, but one was denied despite the unanimous recommendation of senior government officials.

The judge ruled that the minister's decision was inconsistent and arbitrary, and he gave the minister another 45 days to explain and justify or to reconsider the decision. This seems to me to be a very appropriate balance and a fair ruling, and yet the government continues to argue that it needs changes to this act.

I think this is the case, that the government wants to act arbitrarily and the current legislation prevents it from doing that. There has not been any case made that there is any reason to depart from the current scheme of the act, other than the government wanting to politicize the process and hand pick whoever it wants to come back into this country.

Again, the problem with Bill C-5 is that it does not strengthen the act, it shreds it. It does not strengthen the guidelines for the minister, it essentially eliminates them. Bill C-5 dictates that the minister may take certain facts into consideration, but then again he or she may not.

In the current act, the factors are presented as objective standards that can be evaluated by officials and, in the rare cases where it is necessary, ruled upon by a judge.

Now this opens up the process to bias. It does away with transparency and accountability. It allows the minister such wide-ranging discretion to ignore criteria completely and use his or her own subjective opinion as the test as he or she deems appropriate. That is wrong because it replaces an established law-based process with a politicized subjective one.

We might ask whether the government can be trusted to exercise discretion fairly. For New Democrats, this question of trust must be answered, unfortunately, in the negative. The government has demonstrated it cannot be trusted with unfettered power, whether it is the power to prorogue Parliament, or to hire and fire watchdogs and oversight officials, or to approve George Galloway, a British member of Parliament coming into our country and exercising his right of free speech as opposed to Ann Coulter who made derogatory and racist comments about many individuals.

We know what the government will do. It will exercise its political ideology instead of acting as fair and judicious public officials in this country.

With this bill the government proposes that the minister should be given absolute power and absolute discretion over who to bring back to Canada and who to leave overseas. It will do away with the judicial avenue for review by framing the minister's decision in such discretionary terms that it would be impossible for anyone to successfully argue that the act had been violated.

I want to ask, how do other countries feel about this? Because Canada has agreements with many countries for the reciprocal transfer of offenders. This is not just a Canadian plan. This is a program that involves dozens and dozens of countries. I suspect that if we ask other countries how they feel about the government wanting to essentially restrict the international transfer of offenders, which works beneficially for citizens of all countries, I would bet that those countries would express their displeasure to the government.

I want to talk a little bit about the politicization of justice because that is what I think the government is doing. If members go outside the Supreme Court of Canada or any court in this land, they will see a statue of the scales of justice with a blindfold on the statue, the goddess of justice. That is there for a reason. It is because justice ought to be objective and blind. It needs to have fair rules and fair law-based processes that apply to everyone equally, and not to allow judges to hand pick and not be accountable for their decisions by writing the rules that say it is whatever they think it is.

I want to end with a quote from the International Transfers Annual Report 2006-2007, which states:

In the 29 years since the first international transfer took place with the United States, there has been a steady increase in the number of agreements in place with foreign countries...increasing the number of applications received for processing...and of the number of offenders transferred to and from Canada. It ensures that offenders are gradually returned to society and that they have the opportunity—

Keeping Canadians Safe (International Transfer of Offenders) ActRoutine Proceedings

November 26th, 2009 / 10 a.m.
See context

York—Simcoe Ontario

Conservative

Peter Van Loan ConservativeMinister of Public Safety

moved for leave to introduce Bill C-59, An Act to amend the International Transfer of Offenders Act.

(Motions deemed adopted, bill read the first time and printed)