Public Safety Committee on Oct. 20th, 2010

[Michel Laprade]

I believe that it is correct.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Since 80%-plus of the prisoners transferred are Canadians serving time in American jails, for 80% of the people we're all worried about here in terms of whether their records come back, we actually have access to their records, because they've served time in the United States. I think the next country is Great Britain; I suspect that we may have a reciprocity agreement with Great Britain, although I don't have that on paper here.

[Michel Laprade]

If I may, the fact that the information is available doesn't make it a criminal record in Canada. All it does is provide information of a foreign record of some sort.

When an offender transfers to Canada, while it doesn't create a conviction in Canada, it is recorded in our files, in CSC files, and all over--in CPIC as well. That's why, when the ITOA was put in place, the Criminal Records Act was also amended, so that basically the record that is created is treated as if it were a record in Canada.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

My point was that Canadian law enforcement agencies, which include the CBSA, Corrections Canada, the RCMP, all police services, and some others, have direct access to those 80%-plus, plus Great Britain, which would raise the bar to maybe 85%. Of those people, Canadian law enforcement would have access to their records. Whether or not it forms part of the Canadian record, there is access immediately--in seconds--through the computerized system. Would that be correct?

[Michel Laprade]

Yes.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Okay. Getting back to the costs, we've heard members talk about the costs if a person comes back to Canada, for instance, and they haven't had a rehabilitative program. I don't care if it's a Liberal or an NDP minister of justice in this country--it wouldn't be a Bloc Québécois, because it just wouldn't be--I would hope and think that any minister of justice, because he's probably going to be a lawyer, would have the safety of the Canadian public in his or her consideration. It doesn't matter what party they're from.

But here's what I'm saying. The average person looks at this as an immediate cost. I don't know if you want to comment, but you probably wouldn't. We've taken somebody who has committed horrific acts, in some cases, in another country and we bring them back to Canada. It's going to cost between $90,000 and $130,000--up to maybe $180,000--a year to keep that person in a prison in Canada.

Hopefully, most of these offences, if we look at them--at least I've looked at them--tend to be punishable by 10 years to 15 years or less in Canada. Would that be correct?

[Mary Campbell]

Well, the only comment I would make on that.... You're correct when you say that I won't comment on the cost issue, but I do look at every single file, so I have personally read well over 100 files in the last few months. I haven't kept systematic records, but I would say in the vast majority of the files, the Canadian committed a drug offence abroad. I don't know the maximum penalties, but by and large they're drug offences--drug trafficking.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

My indication is that in 2001-02, 96 persons were transferred back to Canada; in 2008-09, it was 82 persons. That's a difference of 10. In 2001-02, none of these amendments or previous amendments were in place, yet the number of transfers was basically the same.

[The Chair, Conservative, Kevin Sorenson]

Very quickly, please.

[Mary Campbell]

I'd have to look more closely at the numbers you're using because I don't want to confuse the issue.

[The Chair, Conservative, Kevin Sorenson]

Maybe we can come back to that.

The other thing I should mention on some of these questions, please feel free.... If you leave here and you think you should have answered a question this way or that way, or you think there's more information, please submit that to the clerk, and he'll see that those answers get supplemented.

Mr. Kania, five minutes.

[Andrew Kania, Liberal, Brampton West, ON]

The statistics we have are that in 2004-05, the last year of the Liberal government, there were four people denied. In the last year we have statistics for under the Conservative government, 2006-07, the number was seven. Is that accurate?

[Mary Campbell]

Again, I'm not sure what document you're working from or what your source is.

I have, from the public document of the annual report from 2008-09, that in 2004-05, zero decisions were denied; in 2005-06, two were denied; in 2006-07, 23 were denied; and in 2007-08, 43 were denied.

[Andrew Kania, Liberal, Brampton West, ON]

That's fine. It has gone up in terms of denials, but in the end these aren't significant numbers in terms of absolute numbers. When I read this bill, the first question I'm looking at is why: why has this particular bill has been introduced? What problem is it trying to solve?

Based on what you've indicated--and I don't want to misquote you--I got the impression you were saying that this bill has been introduced because of the court decisions that say various factors need to be taken into account. You're saying this bill will solve the court case issues by providing additional factors for the minister to consider.

Is that what you're saying, that this is going to correct an error in the law as pointed out by judges?

[Mary Campbell]

I think I again have to emphasize that my role as a public servant is to explain the bill, to provide factual details. I think that if we get into the area of motivation or aims, I would suggest that it's a question that might be better answered by a government representative.

Certainly I would say that one of the issues has been to take into account the court decisions, because we have had a number of them. So one of the elements of the bill, obviously, is intended to try to address those. Will it solve it completely? I can't comment on that, but it is to address what the courts have said to us.

[Andrew Kania, Liberal, Brampton West, ON]

I'm going to suggest to you that it's not to address what the court has said, but in fact, it's an attempt to get around what the court has said.

In particular, there is a case here...I can't pronounce it, but it's Getkate. Are you aware of that case?

[Mary Campbell]

Yes.

[Andrew Kania, Liberal, Brampton West, ON]

So in analyzing that case, the Federal Court in essence overturned what the Minister of Public Safety had decided in denying a request. The court indicated:

Since the reasons articulated by the Minister were “contrary to the evidence and to the assessment and recommendations by his own Department,” Mr. Getkate's request for a transfer was referred back to the Minister for redetermination.

I have gone through this case. They talked about “clear and unambiguous evidence”, including from Correctional Services Canada. In analyzing this case, it's clear to me that if this is one of the decisions that the minister has taken into account--and I suggest to you it's the predominant decision taken into account when drafting this legislation--it's not an attempt to clear or clarify or prove the law. Rather, it's a clear attempt to circumvent the law and get around what the law actually is because the minister didn't like being told that you can't just do whatever you want and you have to actually be reasonable.

Would you agree with that assessment?

[Mary Campbell]

Again, I'd like to just provide some context. There have been 10 Federal Court decisions since 2004. Out of those 10 cases, six were dismissed and four were granted.

In relation to Getkate itself, again I'd invite Mr. Laprade as legal counsel to make any comments on that case.

[The Chair, Conservative, Kevin Sorenson]

Very quickly, please, as your time has just about run out.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you, Mr. Chairman.

Since you're going to respond in terms of the four cases, I'm going to suggest to you once again that this is simply an attempt by the minister to get around the fact that he was told he was not exercising his discretion in a reasonable manner.

[Michel Laprade]

I'll limit my comments to the court cases and the direction of the court in these matters. The courts have emphasized greatly that they have to give great deference to ministerial decisions and discretionary decisions. That's administrative law in Canada; that's the way it is.

However, they've pointed out--and that's what continues to be relevant and will continue to be relevant even after this bill will be in place--that the minister cannot make decisions out of the blue. He has to make decisions that are intelligible, based on rational reasons. So the fact that, for example, in Getkate, we may have had a decision where the reasons were not in sync with the whole file, that made it the case we got.

The reality is that each decision has to be made on using the factors and circumstances of the case that are in front of the minister. He has to make a decision on the basis of those facts and the evidence he has before him and he has to make a decision that is intelligible on these bases. So it is not a pure discretion.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Laprade.

Mr. Rathgeber.

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

Thank you, Mr. Chair.

Thank you to the witnesses for their attendance today and for their testimony.

To pick up on where my friend Mr. Kania might have been going, I understand statistically that in the decade preceding 2007 there were over 10 times as many Canadian offenders transferred back to Canada as there were offenders who were transferred out of Canada to foreign jurisdictions. Does that sound right?

[Mary Campbell]

That sounds like the usual ratio.