Public Safety Committee on Oct. 20th, 2010

[Mary Campbell]

Again, without some systematic analysis, I'm not sure I can answer that for you. I would have to start by first asking this question, which I will undertake to do: do we know how many foreign nationals we have in our penitentiaries? Again, you have to bear in mind that some individuals may be in prisons without disclosing that they have citizenship in another country or indeed that they have dual citizenship with Canada and another country. So when we look at the figure that 127 foreign nationals have been transferred back, I think we do need to find out what the context is: 127 out of how many are here.

As to why many of them do not ask for transfers back, again I couldn't draw any firm conclusions without doing a bit more research on that. They may have in general quite short sentences and they're prepared to simply do their time and then leave at the end of it. I'll certainly look into it and get back with as much information as I can.

[Roger Gaudet, Bloc, Montcalm, QC]

As part of your research, I'd like you to find out how many were deported after being detained. I don't know if Mr. Laprade was the person who spoke about this earlier, but I consider that they were deported, rather than transferred.

[Mary Campbell]

That's right. It's parole for the purpose of deportation.

[Roger Gaudet, Bloc, Montcalm, QC]

I have nothing further. Thank you.

[The Chair, Conservative, Kevin Sorenson]

There's no New Democrat here, so could I just ask a question on the initiation of this? In the existing act, nothing is going to change with this part, but because you need the three affirmations, is it generally, then, the case that the offender would initiate a transfer?

[Mary Campbell]

That's correct.

[The Chair, Conservative, Kevin Sorenson]

Okay. So the offender initiates the transfer. In any of the 21 denials, would we assume correctly, then, that both of the others have made the request? The other government has said yes, they would like him transferred or they would allow him to be transferred, the offender has asked for a transfer, but then we have been the one who has denied. Would we assume that?

[Mary Campbell]

No. In fact, in discussions with our American colleagues, who are our largest partner, quite frequently, I understand, the offender makes the application, the U.S. reviews the application and denies right at that point, so the matter never comes to Canada for consideration. The U.S. is already doing some filtering, if you like, of the applications.

Some of the treaties—and Michel would know better than I do—require either the sending or the receiving state to make the first decision as between the two state parties. So there are some circumstances where the offender makes the application, it comes to Canada first to make its decision, and only then goes to the sentencing state to make a decision.

But no, the fact that we have an application from a Canadian abroad before us does not necessarily mean that the other country has also already agreed. It may well be they have not yet made a decision, and their decision may well be negative.

[The Chair, Conservative, Kevin Sorenson]

Do we make the offender aware, through consular services or other means, that there is a possibility of a transfer? We assume somebody goes—

[Mary Campbell]

Yes.

[The Chair, Conservative, Kevin Sorenson]

So that's up to us, then. We do that. Then they would apply. Is that just a verbal thing? Is it a paper they have to fill out? Is it a long form? How do they do that?

[Mary Campbell]

All of the above, Mr. Chair. Consular officials will meet with Canadians in prison abroad. They will review the program with them.

They will likely be provided with a copy of the booklet that is designed for offenders. It contains information about the program. It contains the statute. It contains an application form. The consular officials will inform the offender. Now, I mean, there is a process. The offender may apply. Part of that process that's reflected in here, of course, is that Canada will inform the offender of how the sentence would be administered in Canada, so that they can make an informed decision about the transfer.

There's quite a full process and a service that is provided to offenders.

[The Chair, Conservative, Kevin Sorenson]

Mr. Davies, I'm going to give you three minutes. You weren't here when your time came. I will go back to you. Normally I would let the Conservative Party finish, but go ahead.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman. I apologize.

Is there any Federal Court decision that suggested that the criteria be changed from mandatory to permissive? No? Okay.

Second, you talked about following up where there's a difference between finishing a sentence in, let's say, the United States versus Canada. I would suggest that there's a clear advantage to finishing a sentence in Canada, which we've talked about: access to rehabilitation, parole conditions in the community, and the fact that we would know about the conviction.

I would suggest that those are clear indicia that would suggest it's preferable to have a person be transferred here rather than have the person come back across the border without us necessarily knowing. Is that a fair statement generally?

[Mary Campbell]

Generally. I think you were out of the room when I made the analogy with Mr. MacKenzie to—

[Don Davies, NDP, Vancouver Kingsway, BC]

Conditional release? No, I was here. I heard that.

[Mary Campbell]

Conditional release. Okay.

[Don Davies, NDP, Vancouver Kingsway, BC]

So I take it the answer would be yes. You would consider it generally preferable.

[Mary Campbell]

Generally.

[Don Davies, NDP, Vancouver Kingsway, BC]

You talked about a criminal network. If someone came back who had a criminal network, my understanding is that it likely would be, and in fact has been, a reason under the current legislation to deny a transfer of someone, under the threat to the security of Canada. That issue has come up. Is that not right?

I think what we're saying is that if you come back to a prison in Canada, what we're having difficulty understanding is how that's a threat to public safety, because you're coming back into a prison. So the only thing you could possibly constitute a threat to is other people inside the prison. One example you used, I think, was the criminal network.

But my understanding is that under the current criteria, that would likely be a valid reason to bar someone. The Federal Court decided, though, that when the minister made that decision, the only problem was that there was no evidence that this was the case. But the criteria of having a criminal network would likely be a reason to bar under the current legislation, would it not?

[Mary Campbell]

The wording that is in the bill I think provides more flexibility around that kind of decision-making. The factors that are currently in section 10 have been interpreted in a way.... Let's take, for example, paragraph 10(1)(a): “a threat to the security of Canada”. Fairly narrow limits have been placed around that phrase by the courts. Similarly, in paragraph 10(2)(a), on whether they likely have committed “a terrorism offence or criminal organization offence”, parameters have been placed around that by the courts. The effort in the bill is obviously to expand that somewhat.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Campbell.

Mr. MacKenzie, seeing we're coming feverishly close to 5:30, I'll let you conclude.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

It's fair to say that not every Canadian citizen who is in custody abroad applies for a return.

[Mary Campbell]

That's correct.

[Dave MacKenzie, Conservative, Oxford, ON]

I think that's an important part, because if I listen to my colleagues across the floor, they say we should bring all these people home for rehabilitation. On the other hand, we recently went through a thing where they claimed there was no rehabilitation in our system. If we're saying we should bring these people home for rehabilitation.... I think there's a fairly small number who in actual fact do apply to come back home, because perhaps a number of these people have been out of Canada for a long time and have no real ties to the country.

But there was another issue about how, if they were to come back, the authorities here wouldn't know about their records. But the vast majority, when they do come back, if they haven't applied for a transfer, are going to be deported from that country.... Is that fair?