Justice Committee on Nov. 22nd, 2011

[Françoise Boivin, NDP, Gatineau, QC]

Good one, Jack. Oh my God.

[Jack Harris, NDP, St. John's East, NL]

I will say, however—that's a joke, obviously—there's a principle, the same principle that's behind all of these amendments to clause 136, so I can debate them in my comments at once. I will do it first of all by taking the first amendment, NDP-41, and say that the current clause 136 says:

In determining whether to consent to the transfer of a Canadian offender, the Minister may consider the following factors:

—and then there's the list of them:

(a) whether, in the Minister’s opinion, the offender’s return to Canada will constitute a threat to the security of Canada;

What we're suggesting is a change to those lines on page 73, so the bill would then read:

In determining whether to consent to the transfer of a Canadian offender, the Minister must consider the following factors:

The change to “whether the” would now read,

(a) whether the offender's return to Canada will constitute a threat to the security of Canada;

Similarly, the other amendments, NDP-42 through 48, are all to the same effect, deleting certain lines and making changes that essentially avoid the ministerial discretion that's offered, the reason being—and this is where it's important—is that the whole purpose of the International Transfer of Offenders Act is to permit offenders who've been charged and convicted in another country, as much as possible, to be able to serve their sentences in Canada if certain factors are taken into account. Obviously public safety is an important matter: a threat to the security of Canada; the safety of people within Canada; whether they've abandoned Canada as their permanent residence. Obviously these are factors.

We're not going to have somebody back who really has no connection with the country and happens to have Canadian citizenship. But if someone is going to come back to Canada at some point after their sentence, then obviously it's in Canada's best interest to ensure this person is, as far as possible, rehabilitated. This is the key to proper operation of clause 136 of the bill.

We have a big problem with ministerial discretion that is “in the opinion of the Minister”. Again, the reason for that is it's a choice of words, and it's a choice of words that's very important. Lawyers will know that if you use the words “in the opinion of the Minister”, it's very difficult for there to be an objective review of such a decision. We've seen that in many court cases that have gone to the Federal Court. The intention of the existing act, insofar as is possible, is to allow people to serve their sentence in Canada and be eligible for supervision, for parole, for the kind of rehabilitation matters we talked about earlier under the corrections act.

This is not about being nice to offenders, although maybe in some cases, if someone is in a prison in a foreign land where they're subject to inhumane conditions and because of our international human rights standards we would be appalled that any Canadian citizen would suffer from prison conditions, we may want to recognize that Canada's international human rights standards are higher. If you're a prisoner you're entitled to certain basic standards, and we would prefer that they have those standards. We would exercise the powers under this act to ensure someone wasn't languishing in a jail where they weren't getting proper food and would be able to serve their sentence in Canada and be subject to proper human rights conditions.

So it is about humanitarian considerations, but it's also about someone who, if they are going to return to Canada after they serve their sentence...let's ensure they're able to get the benefit of Canadians' rehabilitative efforts, the supervision of a parole, and the easing back or reintegration into society, so that they would be less of a threat to Canadian society then they might otherwise be if they came back after serving a long sentence under the conditions of another country's law. That's what the purpose of it is here.

It's feared by us that the use of the term “in the Minister's opinion” would give other factors. It's also added in here, “any other factor” that the minister believes to be relevant. As the Canadian bar has suggested, “With such open-ended discretion, these critical decisions would be determined according to the opinion of the Minister in each case.”

Now, they're suggesting there that there may be a constitutional issue and a constitutional challenge. They say, “It remains to be seen whether Canada's courts will interpret this broad discretion as a 'reasonable limit' demonstrably justified under section 1 of the Charter”. So the red flag has been waved by the Canadian Bar Association, and they're not just doing this because they want to do that. They're doing it because, in their considered opinion as lawyers who are concerned about these issues, they want to raise this flag and object to the arbitrariness of the ministerial discretion here.

Discretion is not to be exercised willy-nilly. When a minister has discretion to make a determination, it's not based on the minister's personal opinion; it's the discretion that's exercised as an officer of the crown. It has to be quasi-judicial, if I may use that term, and it has to be exercised in good faith, and it has to be exercised in a particular manner.

To use the term “in the Minister's opinion” is to remove it one step from judicial review, a step that we don't think it's appropriate to take. This is not a reflection on any particular minister; it's one that applies to any minister of the crown. It's not that we're suggesting that this minister would operate in a certain way. We're suggesting that it's inappropriate for any minister to have that type of apparently personal discretion, because it's open to putting something beyond the reach of the courts and beyond the reach of an adjudication separate from what is in fact said to be “in the Minister's opinion”.

This is why this is being opposed. This is why this scheme that's set out here we feel is wrong. We have opposed this in the past when this suggestion has come forward and we oppose it now.

[Françoise Boivin, NDP, Gatineau, QC]

Two minutes, Mr. Chair?

[The Chair, Conservative, Dave MacKenzie]

Two minutes, Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I'll be brief, Mr. Chair. Actually, this part of Bill C-10 is much too discretionary and too vague. It uses the expression “may take into account”. It will be extremely difficult in cases of disputes that will be made based on that. A lot of people here will remember the Khadr case, and many other cases where Canada made specific decisions.

We hope to amend a provision that sets out that the minister may take into account factors that are mentioned, or any other factor that the minister deems relevant. The minister will be able to judge the relevance of those factors, which are relevant and which are not. It's the type of provision that leads to all kinds of disputes.

Since this is a bill that is supposed to be tough on crime, I would have thought that the minister would have to take into account all these criteria that may seem entirely reasonable. If it says “may take into account”, that means that we do not know if he will apply it in the same way for everyone. These provisions are not really clear.

So we object based on these considerations. Obviously, we always want to protect the public, but we want to do it in a way that is based on criteria that are known to everyone, and we want justice be applied in the same way to everybody.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madam Boivin.

Mr. Harris, you're moving.... Oh, I'm sorry.

[Jack Harris, NDP, St. John's East, NL]

No, we moved these amendments. I moved one, but we're speaking to them all, using our 10 minutes for the entire clause. When I spoke, I spoke to the amendments, so we may have to deal with them. You can deal with them as a group, if you wish.

[The Chair, Conservative, Dave MacKenzie]

We can, but you're moving amendments NDP-41—

[Jack Harris, NDP, St. John's East, NL]

I'm moving amendment NDP-41.

[The Chair, Conservative, Dave MacKenzie]

—through NDP-48.

[Jack Harris, NDP, St. John's East, NL]

Yes.

[The Chair, Conservative, Dave MacKenzie]

Okay. Thank you. That was just to clarify it.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, I have just a brief comment. I understood the ruling before, that the nature of my amendments are beyond the scope that could be addressed here. My whole point—and it's related to what Mr. Harris has said here—is that I thought subsection 10(1) of clause 136 should really remain as it is. That's why I felt that all the things in the bill that seek to amend it confer what I would call an unduly broad discretion. It's been mentioned they make it constitutionally suspect, and we don't need a constitutional challenge. I speak in particular to the last phrase, which is

any other factor that the Minister considers relevant.

I say this, Mr. Chairman, because I've been dealing with the Minister of Public Security, under the existing legislation, on transfer of offenders. We've had a very good exchange on these matters. Under the present, existing legislation, it has worked well without constitutional challenge, and we've achieved the objectives with respect to rehabilitation of the offender, the protection of the victim, community anchoring, and the like.

I'm just worried that this type of legislation.... Again, I don't question the good faith involved in the proposal of this whole set of criteria. But all the criteria, taken as a whole, particularly the last criterion, are going to invite a constitutional challenge. All I'm saying is that in the interest of the legislation, in the interest of a process that is at times a very difficult and delicate one, but one that has worked well up until now, Mr. Chairman.... I've worked with the Minister of Public Security, and I've had, as I said, the kind of relationship and application of the law that has, for me, validated the existing legislation. That's why I don't see the basis for the amendment.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

We need to vote on each one of the amendments. We need to vote them up or down.

(Amendments NDP-41 through NDP-48 inclusive negatived)

Shall clause 136 carry?

[Jack Harris, NDP, St. John's East, NL]

On division.

[The Chair, Conservative, Dave MacKenzie]

On division, Mr. Goguen?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Yes.

(Clause 136 agreed to on division)

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I have a point of order. I just wondered if Mr. Harris would consider grouping some of the rest, the balance, clauses 137 to 166. We have made considerable progress in relation to them. I see that there are absolutely no amendments by the NDP or the Liberals. Whether they would both consent to move those as one and deal with them.... Obviously, if they had issues with them, they would have proposed amendments.

[The Chair, Conservative, Dave MacKenzie]

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Yes, I....

[The Chair, Conservative, Dave MacKenzie]

Do you want to suspend and look at it?

[Jack Harris, NDP, St. John's East, NL]

Suspend and look at it...there may be one or two that we wish to speak.... Most of them are consequential to other amendments. There are a couple that we would like to highlight, and I could identify which ones.

I think we're proposing to have a break.

But I don't want anyone to assume, because we didn't propose amendments, that we're in favour of these particular ones. As you've seen, many amendments that we have proposed have turned out to be out of order, and some we were choosing to speak against and vote against.

If we were to have a break right now, when we come back I could identify those ones we wish to speak to, and we could perhaps group some of the others.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Would it be possible to look at the balance of them as well, Mr. Harris, just because there are some with amendments that are more contentious, obviously, but there are others, up to clause 205 I think, that could probably be dealt with?

[Jack Harris, NDP, St. John's East, NL]

The section you were referring to is under the International Transfer of Offenders Act, and then there are some consequential amendments that are beyond that having to do with the Human Rights Act and other matters, so I was thinking of clauses 137 to 165 in the context of what we would discuss when we came back.

What follows, then, is the Youth Criminal Justice Act, and clearly we have some amendments there and some important discussions to take place.

[The Chair, Conservative, Dave MacKenzie]

Okay. We'll suspend.

The clerk has brought in hot food, so we'll return at 6:15.