I'll try to keep my remarks within the time.
I'm surprised, as a lawyer, with a lot of lawyers here, that no one has mentioned section 6 of the charter. I get the honour of being the first, except for my colleague, who mentioned it briefly.
We intervened last month in the Federal Court of Appeal on a case called DiVito. That was one of the cases where a prison transfer had been refused.
There are two different views in the Federal Court right now. In my view, the more cogent view is that section 6 is engaged in the refusal to allow a person to transfer. Simply put, a Canadian has a right to return to Canada, so if he's deported and put at the border, Canada has to take him back. If the Americans say you can go back to Canada to serve your sentence, and there's no longer any impediment to the Canadian citizen returning, except the permission of the minister, the refusal of the minister to allow the Canadian citizen to come back is a prima facie violation of section 6. This point was fully argued in the Federal Court of Appeal last month. I expect there will be a decision quite shortly, and if, as I hope, the court rules that section 6 is prima facie violated by the refusal, then it's my personal opinion that much of this act will be unconstitutional.
If a prisoner has a right, which I believe he does under section 6, to return to Canada, then the only way the minister could properly refuse would be to justify the refusal on exceptional grounds under section 1. The way it is now, the prisoner applies and the prisoner has to satisfy the minister that he is entitled to return to Canada. If section 6 is in fact engaged, and if that's the determination of the Federal Court of Appeal in the decision that I hope comes very soon, then at that point the onus would be on the government, or the minister, presumably, to justify under section 1 that the transfer itself would endanger public safety or the security of Canada--and the minister would have to be able to justify that.
We were in court arguing this with the justices and trying to come up with scenarios. Remember, it doesn't matter how dangerous the person is as a citizen; when he serves his sentence, he comes back, and then we have to use whatever mechanisms we have in the Criminal Code to protect Canadians. The issue is whether he comes back before the sentence is completed to serve his sentence in Canada.
I think it's very hard to conceive of a situation where the actual transfer enhances the risk to public safety or to national security. There may be an exceptional case, so it's possible the court won't strike the provisions down completely, but I'm hopeful that the court will rule that section 6 requires that, except in exceptional cases, the minister would have to allow the Canadian citizen back. If that's the ruling, then I would suggest to you that the bill will have to scrapped and it'll have to go back to the drawing board.
The second point I want to make just very briefly has to do with international law. The transfer of prisoners came about, this whole regime, because there is a recognition internationally that prisoners would be better served if they served their sentences in Canada. It was better for the society of which they're a citizen, because society would have input into their rehabilitation and it was better for the prisoners to be close to their families.
The right of a citizen to return is also recognized under international law. I think there's a very compelling argument that this legislation is not only inconsistent with section 6 of the charter, but it is also inconsistent with our international obligations.
The third point we wanted to make has been made many times much more eloquently by the first speaker, which is that we all want to enhance public safety. I have not heard one argument, in all the times I've been in court and debated this, that convinces me that there's anything in this bill that would enhance public safety.
It seems the bill is designed, as the previous speaker said, to replace a list of mandatory factors that the minister has to consider with a discretion that is inconsistent with the rule of law, and, hopefully, if the Federal Court of Appeal agrees with us, it's inconsistent with section 6 of the charter.
I think Nathalie had one more point she wanted to make.