Public Safety Committee on Oct. 20th, 2010

[Mary Campbell]

Correct.

[Mark Holland, Liberal, Ajax—Pickering, ON]

--so you could say that he didn't have any rehabilitation. Well, it's because it wasn't offered.

So the point I'm making here is that regardless of whatever, let's say he writes a letter and says it's because of any one of these or, as in proposed paragraph 10(1)(l), “any other factor” that he considered relevant within whatever extremely broad constraints we're talking about. What is the accountability mechanism to hold that minister to account if he or she is really reaching in giving some reason that really stretches it and everybody goes “well, wait a second, that doesn't make a lot of sense”?

Because as I'm reading it, other than providing a letter, there's no other mechanism of accountability.

[Michel Laprade]

It is the same as always existed since the first Transfer of Offenders Act.

[Mark Holland, Liberal, Ajax—Pickering, ON]

So why do we need this legislation, then?

[Michel Laprade]

It has always been a ministerial decision. The fact is that we help by guiding the minister in taking into account certain factors or considerations.

As a matter of fact, when these considerations are laid out in the act, they're not laid out in such a fashion where it is to guide the minister in denying versus approving: they're there to be considered. The minister can consider that an offender meets one of those factors and still decide to grant a transfer despite the fact that one element is met, because he considers other factors to be more important. This is not a recipe type of legislation where you pick one in order to decide to deny a transfer just on that basis.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Holland.

We'll move to Ms. Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chair.

First of all, I want to thank our witnesses for joining us and for providing us with information on this bill.

I would like to clarify one thing. The current legislation was enacted in 2006. You have the latest statistics on the number of applications approved and rejected. Do you have any similar statistics covering the period from 2003 to 2005? Have you observed a drop in the number of applications rejected or have the numbers stabilized somewhat?

[Mary Campbell]

Yes. We do have statistics over the past decade at least; they vary from year to year. They do go up and down. They did go down somewhat a few years ago, but I would say that at this point the statistics we have in terms of approval rates are showing that around 65% to 70% of the applications are approved.

[Maria Mourani, Bloc, Ahuntsic, QC]

So then, the number of applications approved dropped, and then increased slightly. Is that correct?

[Mary Campbell]

Yes. I would point out that the Correctional Service of Canada puts their annual reports on international transfers on their website, so quite a bit of data is available—

[Maria Mourani, Bloc, Ahuntsic, QC]

I'd like us to have a copy of this document, Mr. Chair.

My other question concerns the wording of the act. Correct me if I'm wrong, but as it is currently worded, the act imposes an obligation on the minister to respect certain criteria. If Bill C-5 is adopted, the wording would change from “shall consider“ to “may consider“. Is that correct?

[Mary Campbell]

That's correct.

[Maria Mourani, Bloc, Ahuntsic, QC]

This would mean that the minister is no longer obligated to consider whether the foreign entity or its prison system present a serious threat to the offender's security or human rights. If the minister feels that all factors point to approving the transfer, in particular the most important consideration, namely the offender's security and survival, then he could choose to consider them, or not. Isn't that right?

It's possible that he might not consider them. Isn't that right? Do you not think that this simple fact puts Canada in a position of not upholding the international conventions it has signed respecting the protection of the rights of children, as well as NATO conventions respecting detention conditions and the protection of citizens, even those who have committed criminal offences?

Doesn't this violate Canada's current corrections and conditional release legislation? There is something here that doesn't make sense. Would you not agree?

[Mary Campbell]

Yes. Again, I think there's a perennial “may” versus “shall” debate on many issues. I'll perhaps invite Michel to comment on that a bit.

Again, the idea was not to be able to ignore certain factors. But there may simply be situations where certain factors are not relevant. For example, with regard to the fact that the offender is incarcerated in a very developed country with comparable standards of prison conditions, the factor simply becomes irrelevant and there are other factors that warrant more attention by the judge. Similarly, the offender may be in very good health and it's just not a factor that warrants much consideration. The idea is not to ignore things, but rather to be sure that the minister is focusing on those factors that are most relevant.

But on the “may” and “shall” question, I wonder if Mr. Laprade would like to comment.

[Michel Laprade]

The minister would have the discretionary authority to approve, or deny, a transfer. The bill lists a series of factors and we've tried to move away from criteria as such. We've tried not to have a list of criteria that the minister must comply with or select from when deciding to approve or deny a transfer.

[Maria Mourani, Bloc, Ahuntsic, QC]

That is what happens now.

[Michel Laprade]

I'm not telling you what happens now. The bill merely sets out a number of factors that may be considered, and that's why...

[Maria Mourani, Bloc, Ahuntsic, QC]

There is no difference between a factor and a criterion. If I'm the minister, I can approve or reject an offender's application. What if the offender was being detained in a country where he was being tortured daily, where no programs were available or where he was barely being fed. As minister, it is my choice to consider, or not to consider, this factor when determining whether the offender presents a public security threat.

As Ms. Campbell stated so eloquently earlier, the great paradox here is that these offenders will return to Canada and we can't even be certain that they followed any programs or worked on curbing their criminal traits. These offenders could be more dangerous or just as dangerous when they are returned to Canada. To my mind, prison is like a crime school where offenders learn to develop networks and to become even more dangerous. We will not have had any control over their situation. When they near the end of their time in prison, they will end up back here in Canada and will not be subject to even a minimum level of surveillance. Once they are transferred, they will spend a little time in prison. After that, however, they will be monitored by correctional services until they have served out their sentence.

So then, we're relinquishing our control and giving the minister, as you pointed out, the discretionary authority to select whichever criteria he wants. I find that somewhat unusual.

Could we not, for instance, have added some factors such as children and the obligation to consider the safety of the offender's children and family?

[The Chair, Conservative, Kevin Sorenson]

Thank you, Madame.

We're about a minute over, but we'll let you answer.

[Michel Laprade]

I'd like to focus on the concept of “shall“ versus “may“ in the context of legislation. As for a criterion and a factor, there is a difference between the two. When certain criteria must be respected, theoretically this leads to a positive, or negative, decision. That's not the case here. What we have in the bill is a list of factors that the minister must consider in the decision-making process.

[Maria Mourani, Bloc, Ahuntsic, QC]

The minister may consider these factors.

[Michel Laprade]

In any event, when dealing with words like “may“, “shall“ or “will“, we have to...In the decision-making process, the minister will consider a number of factors listed, or other any other factor, for that matter. The amended section 10 clearly states that the minister may consider the following factors.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Laprade.

Mr. Davies, for seven minutes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Let me get some short snappers out first.

Do you agree with me that the international program is working very well? Is that correct?

[Mary Campbell]

In general, I think that's the consensus.