Bill C-5 (Historical)

Keeping Canadians Safe (International Transfer of Offenders) Act

An Act to amend the International Transfer of Offenders Act

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 shall consider in deciding whether to consent to the transfer of a Canadian offender.

Keeping Canadians Safe (International Transfer of Offenders) Act

[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—

[The Speaker, Peter Milliken]

I am sorry to interrupt the hon. member. He will have eight minutes for his remarks when the House resumes debate on this issue. We will now proceed to statements by members.

The House resumed from April 22 consideration of the motion that Bill C-5, An Act to amend the International Transfer of Offenders Act, be read the second time and referred to a committee.

International Transfer of Offenders Act

[Phil McColeman, Conservative, Brant, ON]

Mr. Speaker, I appreciate the opportunity to rise today in support of Bill C-5 which, as its short title suggests, will do a lot to keep Canadians safe and ensure that our streets and communities are better and safer places for everyone.

This, of course, has been one of our government's top priorities since first elected in 2006 and remains so today.

Our 2010 Speech from the Throne commits our government, among other things, to ensuring that Canada remains the best place in the world to raise a family and to stand up for those who are building our great country. It commits us to ensuring that the law protects everyone and to ensure that those who commit crimes are held to account.

Canadians want a justice system that delivers justice and we know that we can protect ourselves without compromising the values that define our country. Specifically, it notes that for many Canadians there can be no greater accomplishment than to provide for their children, to contribute to the local community, and to live in a safe and secure country.

Our government shares and supports these aspirations which is why we have taken action on the economy and on many other fronts including cracking down on crime. In particular, we have introduced several measures to crack down on violent gun crimes.

Thanks to our government, a killing linked to organized crime for example will now mean an automatic charge of first degree murder.

We have also passed legislation that addresses drive-by shootings and other intentional shootings while offering more protection to police and peace officers.

This government has also passed laws that limit the amount of credit given for time spent in pre-sentence custody ensuring that offenders serve sentences that truly reflect the severity of their crimes.

Most recently, our government introduced legislation to strengthen the national sex offender registry and the national DNA data bank. These measures will provide additional protection for our children from abuse and exploitation.

We have done a lot already to deliver on our commitment to Canadians and to make our streets and communities safer.

The legislation before us today builds on this impressive track record by, among other things, recognizing that one of the key purposes of the International Transfer of Offenders Act is to protect the safety and security of Canadians. The bottom line, as I mentioned, is that Canadians want a justice system that works. They want a corrections system that treats offenders fairly but they also want a corrections system that considers the rights of victims and law-abiding Canadians.

That is what the proposed amendments our government has introduced will do. The legislation which our government has introduced recognizes that public safety considerations are at the centre of all offender transfer requests. It will help to protect victims by stipulating in legislation that the minister may also consider whether the transfer of an offender will endanger the safety of a victim. It will help to protect the safety and security of family members and children by again stipulating in legislation that the minister may consider whether a transfer will endanger the safety of a family member or a child.

As well, the legislation which our government has introduced will stipulate that other considerations such as whether an offender has participated in a rehabilitation program may be considered in assessing offender requests for a transfer to Canada. This is not specifically stipulated in the legislation today.

Today the minister is required to consider a number of factors when assessing requests for a transfers but nowhere is there any mention of public safety, nor is there any mention of victims or families or of keeping children safe. These are serious omissions. That is why Bill C-5 is so important.

The legislation which our government has introduced would make it clear that the minister can take into account whether the transfer of an offender might endanger the safety of a victim, such as a child in those cases where the offender has been convicted of sexual abuse involving a child.

Our legislation also makes it clear that the minister would also be able to take into account whether a transfer might endanger the safety of a family member.

It also stipulates that the minister would be able to consider whether the offender has accepted responsibility for the offence or whether he or she will engage in subsequent criminal activity upon re-entry into Canada.

As we have heard, these considerations should surely help to guide decisions about whether to grant requests for a transfer from offenders serving a sentence overseas. But at the moment there is no clear legislative authority for the minister to take them into account. That is what Bill C-5 would change while also giving the minister more flexibility in the decision-making process itself.

Bill C-5 would perhaps, most importantly, ensure that the purpose of the act includes considering public safety as part of the decision-making process in the transfer of offenders.

It, therefore, reflects this government's commitment we have made to Canadians to stand up for victims and to ensure our streets, our homes, and our playgrounds are safer places.

That is what the legislation before us today is all about and it is why I am confident that Bill C-5 has the support of all hon. members.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Speaker, I heard the comments by the hon. member in regard to this very controversial piece of legislation.

I wonder if the hon. member had the opportunity this morning to pick up the Ottawa Citizen. On the front page he would have seen an article referring to a federal court decision yesterday in which the Minister of Public Safety and this bill have been put to serious question.

It would appear that the minister of public safety in 2008 decided to ignore the advice on the transfer of a particular offender coming from the United States. Brent James Curtis did not represent a threat to Canadians, was not a terrorist, was not involved with organized crime. He was a minor player. The minister used discretion which a judge in this country has determined to be the wrong discretion and now the member is advocating for that same discretion to be used holus-bolus.

I wonder if the member could reconcile the absolute embarrassment that the government has had to endure as a result of this case and why he believes that this legislation should pass when giving the minister those kind of arbitrary powers leads to the wrong consequences, even when he knows, as the minister knew, the decision was wrong and that he ignored his own staff on this particular subject.

[Phil McColeman, Conservative, Brant, ON]

Yes, Mr. Speaker, I did see the newspaper article. As I understand it, a review of the decision of the Federal Court is currently underway, and as such, it is inappropriate that any comments be made on this particular case.

Last spring the Minister of Public Safety tabled in this House legislative amendments to the International Transfer of Offenders Act. Our Conservative government brought this legislation forward because we know that Canadians want a corrections system that protects the safety of victims and law-abiding Canadians. This act would ensure the protection of our society is given paramount consideration when assessing requests for the transfer of international offenders. I call on the opposition to support this worthwhile public safety amendment.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, the hon. member for Brant and I sit on the public safety committee to make Canadian streets safer. I wonder if he might like to expand or comment on how the amendments in this piece of legislation fit in with the government's overall strategy to promote safe streets and safe communities.

[Phil McColeman, Conservative, Brant, ON]

Mr. Speaker, as my hon. colleague mentioned, he and I serve on the public safety committee.

As he and everyone in the House knows, our government's agenda has been about protecting victims. For far too long, Liberals have put criminals first. Our Conservative government will put the rights of victims first. We will continue to do that. We will ensure that Canadians, their families and children, are safe and secure in their communities. And at the same time, that offenders are held accountable for their actions, not only in Canada but abroad.

Criminals serving time in other countries may apply for a transfer to Canada, as many do, to serve out the remainder of their sentences, but there are unique factors often involving the sexual exploitation of children. These are various. We heard examples of stories at committee and the tracking of individuals.

It is a system that is not perfect and often these individuals do make it back into our society when they should not be allowed back. There are special extenuating circumstances. I thank the member for his involvement in making sure we bring in legislation that addresses these.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Speaker, I have heard a lot of rhetoric from the member and his party, but I want him to understand. When we do not bring Canadians back at the end of their sentence and the country which has incarcerated them has said to please take them back, how are we going to correct the behaviour of those individuals if they do not get a chance to re-adapt to society?

What the hon. member is doing is ignoring the case before him this morning, which is no longer before the courts, as a Federal Court decision has been made and the legislation as being proposed is dangerous and gives irresponsible powers to a minister to make a decision based on whim, without any due regard for the facts.

We hear the rhetoric and the nonsense coming from that party and the Conservative members over there who think that everything can be turned into a law and order issue. If the hon. member believes so much in law and order, why was he not standing four-square with the police in this country on the legislation proposed by his colleague?

It is important for Canadians to understand that when an individual is incarcerated and has the right to return as a result of being a Canadian citizen, false arguments cannot be used, as the hon. member has just done, in defence of a piece of legislation that is not worth the paper it is written on.

No one in this House, no minister, should have those kinds of arbitrary powers, especially when it comes to undermining the citizenship of any Canadian in this country or those who happen to live abroad.

[Phil McColeman, Conservative, Brant, ON]

Mr. Speaker, I do thank the hon. member for his comments; however, I must take issue with him on a couple of them.

Number one is with regard to his comments about government members voting as we did last night to abolish the wasteful and ineffective long gun registry. Members on the public safety committee heard testimony after testimony, not only from victims, but also police officers. When the member makes a carte blanche statement that police officers in this country think that we should continue with the wasteful and ineffective long gun registry, he is absolutely, categorically wrong.

We heard from many front-line police officers that it is not a useful tool for them, that in their training, they walk up to any circumstance thinking that the person behind the door may have a gun, and if they do not, their lives are not secure. The information provided is partial. It is often not accurate and it does not serve a useful purpose to them as front-line police officers. To link our desire for better legislation to deal with gun control vis-à-vis proper licensing is absolutely false.

If he has the time, I would invite him to come to the public safety committee and listen to some of the testimony of victims, people who have children who have been abused sexually by people who are back on the streets because there was no discretion to keep them off the streets.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I want to ask the member about the need for this bill. I question whether this is another situation where the Conservative government is inventing a problem where one does not currently exist.

I understand that 620 Canadians were transferred back to Canada between 1993 and 2007 under this program. Of those people, only four were readmitted to prison in the two-year period after their sentences expired. That is a recidivism rate of .6%, which is dramatically below the regular recidivism rate for people convicted of criminal activity in Canada. That one is up around 20% or 25%.

I am wondering why there is the need for this legislation, given that we have a program that works so dramatically well, by I would hope anyone's assessment, at the current time.

[Phil McColeman, Conservative, Brant, ON]

Mr. Speaker, let us state that it does work well; I totally agree, but it could be better. It could be better so that we can catch some of the most heinous people and give discretion and make reference to public safety, to the fact that the minister can have that discretion to ask whether a person truly has been rehabilitated, whether that person, in his or her circumstance has taken proper rehabilitation to integrate back into society.

As the member shakes his head, I suppose he would prefer that that not be taken into consideration. Instead he would rather just assume that all people who are released are rehabilitated. It is often not the case. People often reoffend. It is working but it could be better.

[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.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I commend the hon. member for his speech. I enjoy working with him on the justice committee as he is always well prepared and reasoned in his logic, although sometimes I disagree with him and I certainly disagree with him with respect to this bill.

He and I have argued from time to time over the value of minimum mandatory sentences and his argument against them is always that it takes the discretion out of the trial judge's hands. He criticizes this legislation because it would grant the minister, in his mind, too much discretion. I am curious how he reconciles that. Why not discretion to a minister who is elected and accountable to this House and the electorate as opposed to a judge who is accountable to no one after he is appointed?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, my first answer is that one just needs to look at the track record of the ministers who have exercised this discretion, more limited as it is under the current legislation.

The second point is that judges exercise their discretion by imposing mandatory minimums generally with one or two exceptions. Judges exercise their discretion within the principles that are set out in the Criminal Code. We have had sentencing principles for 30-plus years and we exercise, as judges, restrictions within that. Our courts of appeal, all the way up to the Supreme Court of Canada, supervise that the judicial discretion they have is exercised properly within those guidelines that we as parliamentarians have given them having gone through the democratic process.

We also have judges who have been trained, both as lawyers and as judges, to understand how they are supposed to exercise that discretion. We obviously do not have that in the ministers in the government. Now my colleague is saying that we will give them even more discretion.

I would not give this discretion that is in the bill to a judge. I am not prepared to say that any judge in this country should be able to take into account any other factor that he or she considers relevant. I am not prepared to give that to anybody. We operate under a rule of law. We set the guidelines and we expect them to interpret those and apply them, not go off on some whim.