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.

International Transfer of Offenders Act

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I have two questions for the hon. member.

The premise, and I hope he will agree, is that the very clear history and convention of this House as a democratically elected House is to prevent the imposition of arbitrary measures on all of our citizens. The Conservatives should realize that that is our role.

First, does the member regard the unfettered discretion outlined by him and discussed earlier in this bill as being an arbitrary measure of that nature so that it should be rejected out of hand?

Second, could that unfettered discretion be constrained within the scope of the bill by, for example, describing that discretion to be linked and related only to measures involving the safety of the public?

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

Mr. Speaker, the simple answer to the first question is obviously yes, that this approach to the overall bill, but that clause that I keep repeating, giving the absolute discretion to the minister of anything that is relevant to be determined by the minister, is clearly an arbitrary measure way beyond the scope of what we normally pass as laws in this country and certainly in this legislature.

The second question is a bit more difficult. I do not think there is any way we can leave in that particular wording about the minister considering relevant any factor. I do not see any way we can put constraints on that.

With respect to the other seven criteria, some of which I do not agree with, the wording could be changed, although I think some of it would have to be removed.

We are, in effect, doing the same as we have with judges in the Criminal Code. Over the years, we have given them sentencing principles that guide them but constrain their discretion. We could be doing the same. I do not see this bill being amended. It needs to be redrafted and, in that redrafting, those constraints could be built in.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, in answer to the question of the hon. member from St. Albert as to whether we would want discretion in the hands of a court or a democratically elected person, the key difference is that with a discretionary judge there is an appellate procedure so wrong decisions can be appealed, whereas if the minister makes a decision without unfettered discretion there is no appeal with that.

I also want to point out and emphasize just how the bill will make our communities less safe. That must be emphasized, less safe.

When Canadians convicted abroad are denied readmission to serve their sentences in Canada, they will come back to this country 100% of the time. They will be deported. The only difference is that they will come across our border. They will have no rehabilitation. There will be no supervision. There will be no parole. We will not even know that they have a criminal record and these people will be released in our communities.

That is what the government has to answer to Canadians for, why it is pushing a bill that has that kind of effect.

I also want to talk about discretion and quickly put a question to my hon. colleague. The bill allows the minister absolute discretion to take into account whatever he or she wants or whatever he or she does not want. That is simply bad policy-making.

I want to quote from what federal Judge O'Keefe just said recently. He said that the courts “cannot condone nor accept completely unstructured discretion. In circumstances where a decision has such a dramatic effect on the citizen in question, the law requires a complete explanation--”.

We know right now that the courts are commenting critically on the way the legislation is right now where there are some criteria. This bill would remove any criteria.

I wonder if my hon. colleague could comment on whether he thinks the bill before us now already contravenes clear comments by our federal court judges, never mind an obvious potential charter challenge.

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

Mr. Speaker, as I think I said in my speech, I believe it obviously does contravene the charter. That wording, which my colleague has just quoted again, would seem to be a very clear confirmation of that position.

If I can advocate on the other side for a moment, our courts are obviously very careful about overturning legislation passed by the elected Parliament. It has the obligation to do that if it clearly offends the charter.

I cannot imagine in this case in this factual situation, with this type of a law, that they would be deferential to Parliament. I believe they would say that the charter is very clear as to due process, equality provisions, and would say this is not charter acceptable.

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

Mr. Speaker, I listened very carefully to the hon. member's very learned comments and his obvious concerns by the charter side of this. I want to ask a very specific question dealing with the consular dimension.

One of the reasons transfer offender treaties were so successful is they allowed us to do diplomatically what was often impossible to do between two nations, where Canadian citizens might in fact find themselves at the whim of an arbitrary regime in which Canadian citizens may not be treated appropriately because they happen to be foreigners and where there may be questions as to whether or not justice itself was correct.

Giving the discretion of the minister to choose based on the evidence adduced from another country creates a number of other concerns that are extra-judicial to our own sense of due process in this country.

I wonder if the hon. member could comment on how serious this situation is. He mentioned the case of Sacha Bond who continues to be in Florida, languishing without medicines.

I am wondering if the member has given any consideration to the consular dimension which is extremely important and often seen as a safety valve to ensure that Canadians mistreated abroad are, in fact, brought home as soon as possible and the threat that this legislation creates for that.

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

Mr. Speaker, I must agree that it poses a problem with how we deal with cases that are going on at that point.

One of the other provisions that I cannot accept is that if the offender continues to say, “I'm innocent”, and we saw the Martin case, a woman incarcerated on fraud charges. In that situation I think in the way this is worded, the way the government has approached this, she continued to protest her innocence. We have had any number of other cases where people are incarcerated in jurisdictions where they are protesting their innocence and yet the government is going to try to use this now to deny them the right to come back to Canada.

[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.

[Randy Kamp, Conservative, Parliamentary Secretary to the Minister of Fisheries and Oceans]

Mr. Speaker, I appreciate the thoughtful approach of the member for Burnaby—Douglas to this issue.

He raised the difficulty he has with the clause that gives discretion to the minister to take into account other factors as he deems relevant. He will know it is not an unusual thing for legislation to give discretion to immigration officials, for example, or fisheries officials. They are given discretion because of the difficult situations they confront.

Would he not agree that this does not constitute absolute discretion? Even government members, the minister in this case, are required to follow the principles of natural justice. The colour of one's hair or something like that would never be considered, and such a comparison really is a bit thoughtless. I wonder if he agrees with that.

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

Mr. Speaker, I appreciate the question.

It is not just my opinion that we are opening this up to too much discretion on the part of the minister, or that the change of wording from “shall” to “may” is ill-advised. There are certain things the minister is required to take into consideration and changing that to a list of things that the minister “may” take into consideration is a dramatic and fateful change to this legislation.

It is not just my opinion. Even with the current legislation, there is a problem. We saw this with the court decision earlier this week, when Justice John O'Keefe of the Federal Court of Canada ruled in two cases where transfers had been denied. He did not question the idea that the minister should have some prerogative, but he did write that courts cannot condone completely unstructured discretion, and that in circumstances where a decision has such a dramatic effect on someone, the law requires a complete explanation, however short the decision.

In two cases before the court, it found that there was a serious problem with ministerial discretion as it currently exists in the law. The problem is even greater in Bill C-5. We have heard that Bill C-5 goes much farther down the road of ministerial discretion than is currently allowed.

I think there are serious problems. It is not just my opinion. It seems to be something that is coming out of the Federal Court of Canada in a decision earlier this week, on Tuesday, in which Justice O'Keefe seems to have been addressing this very issue.

There are serious problems with the whole question of ministerial discretion. The change in this legislation, with respect to the minister's power of discretion, from a list of prescribed criteria to a much broader, open-ended list is a serious matter. I suspect that, given what the court has already said, the present range of ministerial discretion will have difficulty standing up to legal challenges down the road.

[The Deputy Speaker, Andrew Scheer]

There will be about six and a half minutes left for questions and comments after question period.

The House resumed 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.

Keeping Canadians Safe (International Transfer of Offenders) Act

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I was hoping to ask a question of the previous speaker, who is unavailable, but he gave an excellent speech in which he had particularly targeted an amendment in the bill, subclause 3(1), which replaces existing subsection 10(1), all the way down to paragraph 10(1)(l). This has to do with the circumstances that a minister can take into account.

Paragraph 10(1)(l) would say,

any other factor that the Minister considers relevant.

When one makes a list of factors that may be taken into account, something must be left off. Otherwise it would say, “any factor that the Minister believes is relevant”. The fact that there is a list, which was added, seems to suggest that this list is not comprehensive, and I am not sure why. What it does, and the member mentioned it in his speech, is raise the question of arbitrariness in the law.

I understand that it is in fact part of our Constitution that laws cannot have elements of arbitrariness. It therefore raises the question about whether the Attorney General of Canada has properly opined on the constitutionality of the bill. I do not know, but it is probably worth asking because this is a very serious bill. It is an important bill. It is a bill that addresses the transfer of prisoners from one jurisdiction back to Canada. The whole premise underlying the bill is for the purposes and enhancement of rehabilitation of citizens of Canada who may have run afoul of the laws in another jurisdiction.

The other thing that came to my mind when the member was speaking is the fact that today Bill C-5 was called for the first time for debate at second reading. Also today there is an article in a number of newspapers. The one I picked up is in the Ottawa Citizen and it is titled, “Canadian jailed in U.S. can return, court rules”. This is in fact precisely the type of case that is impacted by Bill C-5.

This relates to a person named Brent James Curtis. He was involved in a routine transfer from a U.S. prison to a Canadian jail, and the Federal Court of Appeal said that the minister erred and that the Conservative administration was to reconsider the decision within 45 days. This was a decision made by the court yesterday on this matter, yet the government proceeded with this bill today. The timing is very unusual and it would suggest that, since the Federal Court of Appeal ruled that the government erred on that case, for this bill to come forward is quite astounding.

The question of whether there is a problem on the constitutional side is also important. As well, there is a question about whether there is continued support for the long-standing tradition that countries have had of being able to transfer prisoners. In this particular case, Mr. Curtis wanted to serve out the balance of his sentence in Canada to be close to his family. This is part and parcel of the whole regime of transfer and rehabilitation.

There was another thing that I saw in the article in the Ottawa Citizen today. According to the article, the officials of the then Minister of Public Safety told the minister that the facts were clear. The assumption had been initially made that this person was somehow implicated in other ways. They advised the minister directly that his facts were wrong. The minister ignored his own officials, made his own decision, and quashed the transfer of this person.

It raises again the question of what is the agenda of the Minister of Public Safety. Why is it that officials of his department are ignored? With the decision of a court, the Federal Court of Appeal, that the minister has 45 days to reconsider the position, why is it that there is now a bill before us that will say that, notwithstanding anything else, other things that will be taken into consideration now will be anything the minister thinks is appropriate? Talk about a one-man show.

I am very sure that there are going to be others who want to pursue what happened in this particular case. This decision was actually highlighted in the media a year ago. The Canadian public safety minister at the time wrongly considered this Canadian citizen, who is now 29 years old, a major money man in a drug conspiracy. That was simply not the fact. That was found by the Federal Court of Appeal ruling. When the minister refused the prison transfer for this person, the minister contradicted his own staff findings in terms of whether Mr. Curtis was linked somehow to organized crime. But still the minister denied the prison transfer on the basis that he might commit future offences in organized crime or terrorism, when it was already made clear by his own staff and officials that there was no connection to organized crime or terrorism.

It was denied even though the U.S. government approved the transfer. The U.S. government approved the transfer, but the Canadian minister did not approve it. So one has to wonder what is going on here. There are so many questions that should be asked of the minister and I am sure it will come out when this goes to committee, but I suspect that with regard to the bill and with regard to the arbitrariness, this particular provision is not going to get very much support at committee.

The officials concluded that Mr. Brent Curtis would not commit a crime if he were transferred back to Canada, nor did Curtis have any links to terrorism or organized crime and was only a minor participant in the matter that was before the court. He was found guilty and sentenced to jail. The government position left Mr. Curtis in U.S. custody where he could not even understand the hourly instructions over the prison public announcement system, which was in Spanish for most of its Mexican inmates. When I saw this case and was referred to the story, it certainly did raise the spectre of some problems.

So we are at second reading. Should this matter be passed at second reading and go forward to the committee, I want to flag for the committee that this particular case of Mr. Brent Curtis should be looked at and that this bill should be considered in the context of what happened with regard to that case, because I think it has a direct bearing and a direct consideration with regard to paragraph 10(1)(l) that says what is relevant is any other factor that the minister considers relevant. It is very unusual. The arbitrariness of that on its face, on a prima facie basis, would raise the question of whether the Attorney General in fact had opined correctly on whether this bill itself with that proviso in there, with that amendment in there, is constitutional. So there are constitutional questions here as well that would have to be looked at.

This is not my area of expertise, but I hope that other hon. members will take an opportunity to look at the records, to look at the court decision, to look at the actions or inactions of the minister, to consider the actions or inactions of the Attorney General vis-à-vis constitutionality and try to understand and try to determine from the minister and officials why his officials were overridden, not listened to, and why the minister proceeded with the bill only one day after the Federal Court of Appeal told them that the minister was wrong.

This just raises more questions than answers, and at this point, I hope that hon. members will take into consideration some of the disturbing facts surrounding Bill C-5.

[The Deputy Speaker, Andrew Scheer]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker, Andrew Scheer]

The question is on the motion. Is it the pleasure of the House to adopt the motion?