Public Safety Committee on Feb. 3rd, 2011

[The Chair, Conservative, Kevin Sorenson]

Good morning, everyone, and welcome. This is meeting number 51 of the Standing Committee on Public Safety and National Security, on Thursday, February 3, 2011.

Today we are going to the clause-by-clause stage in our consideration of Bill C-5, An Act to amend the International Transfer of Offenders Act. I'm told by our experts at the table that it is not a necessity that we go in camera. In fact, normally it would not be in camera.

Can we have a test on the translation, please? It's not picking up.

Is it working now? All right. Well, we're glad. We've found out that it's not a conspiracy, Mr. Gaudet--

[Voices]

Oh, oh!

[The Chair, Conservative, Kevin Sorenson]

--you have to plug in to the right source.

What I would like to do at this time is invite the officials, if they would like to come to the table. There may be questions that arise from our discussions.

We welcome you back again. If you have your books with you, or the schedule of the bill, what we will do is postpone clause 1, the short title of the bill, until the end, and proceed with clause 2.

You've had a chance to look at clause 2. There are no amendments on clause 2. Shall clause 2 carry?

(Clause 2 agreed to)

(On clause 3)

We'll move to clause 3. NDP-1 is in that package.

We'll go to Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

My first amendment would keep the legislation as it is in the current legislation, which is that it requires that the minister consider certain factors. The current act says the minister “shall” consider, and then enumerates a number of factors. The proposed amendment in Bill C-5 would change that “shall” to “may consider the following factors”, which, in my opinion, is an inappropriate alteration.

At the very least, I think what we want to do when we consider something as important as a Canadian's right to enter their country to serve their sentence in Canada as opposed to another country is to require that any minister of any party direct their minds to certain factors. I think it's our job as parliamentarians to itemize a reasonable set of what those factors should be.

I don't think it's too much to ask that any minister, when faced with an application by a Canadian citizen who is incarcerated abroad, at the very least be compelled to address their mind to a set of factors that I think we would want that minister to address their mind to.

By saying “may”, we're removing any legal requirement for the minister to address any of the following factors. Some of these factors are as we'll see; I won't get into them in too much detail, but one of them is whether the offender's return would constitute a threat to the security of Canada. I don't want that to “maybe” be a consideration; I want that to be a mandatory consideration by the minister.

The next factor would be whether the minister thinks that the offender's return to Canada would endanger public safety, including the safety of any person who is a victim, or the safety of any member of the offender's family, or the safety of any child, in the case of an offender who has been convicted of a sexual offence. I don't want that to be an optional consideration by the minister. That should be a mandatory consideration of the minister.

There's nothing in this bill that says the minister has to take an inordinate amount of time to consider these things, but the minister must, in my view, spend at least some time addressing their mind to whether those factors are in play or not when we consider whether an application for transfer should occur.

I know that we want to get this bill through today, so I won't speak for a long time on this, but in my respectful submission, the legislation's language as it currently reads, which requires the minister to consider factors, I think is appropriate. I would urge my colleagues on this committee to retain that language by changing the “may” back to “shall consider the following factors”.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Ms. Mendes, and then Mr. Holland.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

I have a comment to make on the French translation of the amendment. I think it should be “le ministre doit tenir compte” and not “tient compte”. It's not in the present. The right wording is “doit tenir”. I think that properly reflects the meaning of the change proposed. This is strictly a translation issue.

[The Chair, Conservative, Kevin Sorenson]

Mr. Holland.

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

Thank you, Mr. Chair.

Just in a generalized sense as we go forward, I, too, share the concern with the word “may”, because it leaves it too open-ended. I think if there's a purpose to the bill--to provide direction to the minister--then what's the point of having a whole list of conditions that the minister should consider if he doesn't have to consider them? The bill might as well say, “Minister, do whatever the heck you want”.

There would be a number of examples, I think, where we have to be more clear in the fact that the provisions of this bill need to be adhered to and followed and that the minister must have some of the reasons that are explicitly mentioned in the bill in order to take action.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Mr. Rathgeber, and then Mr. MacKenzie.

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

I'm opposed to this proposed amendment put forward by Mr. Davies. It appears to me that the purpose of the bill...and as Mr. Davies outlined in his dissertation or his comments, every case is very specific, and there's a whole list of factors that may be considered. Not all factors are going to be relevant, even remotely, in all cases.

One of the factors that has been included in this new legislation is, for example, the health of the offender and whether that offender may need treatment. That's not going to be relevant in, I would suggest, most cases. So I think the discretionary “may” is more appropriate than the mandatory “must”, and I'll be encouraging members on this side of the table to vote nay.

[The Chair, Conservative, Kevin Sorenson]

Madame Mourani, and then Mr. MacKenzie.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chairman.

First of all, we are in favour of the amendment, simply because “peut tenir compte” leaves room for arbitrary and subjective decisions, and all kinds of “environmental” circumstances. I've given you some examples. We have discussed this in committee.

I would go even further. It may even open the door to corruption. We assume that everyone is well-intentioned. However, supposing someone incarcerated abroad applies for a transfer and his family happens to make large donations to a political party. Could that be a factor? No, but things like all the items listed in the bill could be used—for example, the ability to consider human rights. Just about anything could be used to justify that person's transfer to Canada, even though there are actually other goals.

And finally, the verb “pouvoir”, in the phrase pouvoir tenir compte”, already introduces an element of arbitrariness, subjectivity and “human nature”, so to speak.

Mr. Chairman, I want to state clearly that we intend to vote in favour of the amendment. My colleague, Ms. Mendes, is absolutely right. The French translation should be “doit tenir compte”.

[The Chair, Conservative, Kevin Sorenson]

All right.

The difference in translation has been noted at the table, and that is a point they're going to look at.

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

I wonder whether these amendments are actually in order. The bill has received second reading; therefore, amendments must be within the scope of the bill. The House has approved the principle that the minister should have discretion by approving the words “in the Minister's opinion” throughout the bill, and both amendments remove those statements.

It is legitimate to canvass issues related to factors that should be given as amendments, but I would argue that the removal of the discretion is beyond the scope of the bill. If you look at the amendments, the minister, to make positive findings of certain outcomes and to grant the transfer of those findings are not made...the problem is that these cases are not adversarial. Only one party is heard from in these cases, and that is the applicant. Therefore, there is no one to test the applicant's case and no one who has an interest in presenting contradictory facts.

Under the amendments, an applicant would be returned to Canada based upon a bare-bones application, because the minister does not have the basis to make a finding that something will happen, and requiring that would take some tests.

In addition, Mr. Chair, I'm wondering if we could hear from the officials at the table about how the process works, in fact, about the mechanics of the process. That might be enlightening to all of us in regard to when applications are made to the minister.

[The Chair, Conservative, Kevin Sorenson]

To our experts at the table, the question--

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

Point of order.

[The Chair, Conservative, Kevin Sorenson]

Mr. Holland.

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

The point of order is simply that I believe a point of order has been raised that is rather material to our debate and to the proceedings. I wonder if we can get a ruling on the contention of Mr. MacKenzie. I certainly wish to speak on it as well. But I think it would be important for us to get a ruling from the chair as to the admissibility of amendments submitted before proceeding. I think that's a fairly major point and needs to be clarified before proceeding. I don't know, Chair, if you will permit me to speak to that or if we're considering it.

Mr. Chair, what's the purpose of the committee meeting, if not to place what I think are relatively minor amendments that keep within the spirit of the legislation? As I understand this legislation, it's to provide direction under which cases detainees are or are not to be transferred. The stated purpose of the bill is to augment public safety. The concern being expressed, I think, by many members around the table is that arbitrary discretion on the part of the minister--not discretion, period--is what is at concern. If the minister has strong and compelling reasons, as outlined in this bill, to not grant a transfer, then so long as they are following the provisions of this bill, there isn't an issue.

If, on the other hand, the minister decides for arbitrary reasons that are not contained within this bill to not offer the ability of a transfer to take place, that's another matter. So therefore, I think, amendments in this regard are very much in order and very much need to be introduced, because, look, without going into debate ad nauseam...very quickly, the point of the matter remains that these are not people being transferred from foreign prisons onto the streets of Canada. There seems to be an effort on the part of the government to display this idea that these prisoners are going to be dumped onto the streets of Canada and that the whole purpose of the transfer is to keep people incarcerated. That's not what's at issue here.

The issue is where people are going to spend the time in which they are incarcerated, where they will in fact be incarcerated, and whether or not once they are out they're even going to have a record. We know if somebody is incarcerated in a foreign jurisdiction that their success in terms of rehabilitation...the rate of reoffending is higher when that incarceration doesn't take place in Canada. We also know that somebody who is transferred to Canada, spends their time in a Canadian prison, and is then released will have a record, and there will be the opportunity to follow up on that. That is not the case with somebody who has not spent their time in Canada.

So if the genuine purpose and intent is to augment public safety, then we have to be very careful under the conditions in which the minister uses this ability to transfer. On that basis, I would submit to you, Mr. Chair, that these amendments are essential to the stated purpose of the bill, and that what is being attempted in the amendments is not to eliminate the discretion of the minister, but rather to scope the discretion of the minister such that it is targeted at things that will actually and meaningfully meet the title of the bill.

[The Chair, Conservative, Kevin Sorenson]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Although I know this is not determinative, the summary says: “This enactment amends the International Transfer of Offenders Act to provide that one of the purposes of that Act is to enhance public safety and to modify the list of factors that the Minister may consider in deciding whether to consent...”.

The two major purposes of the bill, I would argue, are to enhance public safety and to modify the list of factors.

When we take the first purpose of the act—and I'm speaking to Mr. MacKenzie's proposition that my amendment is not in keeping with the purpose of the bill—if one of the purposes of the act, as stated in the summary, is to “enhance public safety”, how do we enhance public safety by agreeing to an amendment that allows the Minister of Public Safety to ignore whether or not an offender's return to Canada will constitute a threat to the security of Canada? How does it enhance our public safety by giving the legislative power to the minister to say, “I'm not even going to think about that”? How does it enhance public safety to give the minister the legislative power to ignore whether an offender's return to Canada will endanger the safety of any person who is a victim?

That's what the Conservatives want to do. They want to say: “No, we want to make it so the minister doesn't have to consider those things”.

It's the NDP, and if I can boldly state what I'm hearing from the Liberal Party and my colleagues in the Bloc...we're the three parties that are saying no, the minister must consider those things. He must consider whether or not there is threat to Canada and whether victims may be harmed by the transfer. I would argue that our amendment is consistent with the very purpose of the bill, which is to enhance public safety, and the Conservatives' position is actually violative of the purpose of the bill, which is to enhance public safety.

I also would argue, again, that the second purpose of the bill is to modify the list of factors. So if we're modifying the list of factors—if that's the purpose of the bill—then going that step further and saying that we don't think it's too much to ask that the minister should consider, must consider, those factors we're modifying is consistent with that purpose as well.

Last, I would say what is going to come out I think throughout all of the amendments that the New Democrats are going to propose. We heard evidence before this committee--and I don't think it was contradicted--that public safety is enhanced by the transfer of offenders to our countries. We heard evidence that if you keep an offender serving their sentence in another country for their full sentence, they are coming back to Canada, and they will come back to Canada in some cases without our even knowing if they've been convicted of a crime, and without us having any ability to supervise them in the community.

We heard a lot of evidence that by facilitating the transfer of a Canadian abroad and getting them into our—

[The Chair, Conservative, Kevin Sorenson]

Mr. Davies, as much as your debate continues on your amendment, we are really debating the point of order as to whether or not it's in order.

You still are within the realm. I am going to give you the opportunity at the end, because it's your amendment, to have some concluding comments.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

I'll just wrap up my sentence, then, and then I'll certainly defer. It has to do with the discretion, because what I am saying is that by requiring the minister to consider factors, it will compel consideration of the broad range of factors that go into whether a transfer occurs.

The transfer, as I was arguing, does enhance public safety, because when those people come back to Canada and they come into a Canadian prison, we know of their criminal record and we have the opportunity to give them programs. We also have the opportunity to apply conditions and supervise them in the community, which, I argue, is preferable to letting them walk into our communities without any conditions at all.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

Mr. Rathgeber.

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

Again, Mr. Chair, I encourage you to strongly consider Mr. MacKenzie's recommendation that this amendment is out of order, and to hear from Ms. Campbell, if necessary.

Mr. Davies' amendment, although I think it is well intentioned, is going to lead to all sorts of judicial review applications, because there are some factors that are simply not applicable in many cases.

Again, I look at proposed paragraph 10(1)(g) “the offender's health”. If there are no health issues to be raised, the minister cannot possibly consider that factor. Therefore, it's going to invariably lead to a judicial review application saying that the minister didn't consider all the things he was required to consider. But in many, many cases he will not be able to.

So I think Mr. MacKenzie is correct. I think this amendment is out of order. I would really like to hear from Mrs. Campbell on this point.

[The Chair, Conservative, Kevin Sorenson]

As far as hearing from Ms. Campbell goes, that may be not so much a point on the admissibility of the point of order. Certainly, before we vote on whether it should carry, you may ask for Ms. Campbell and I would go for that.

But we're dealing with Mr. MacKenzie's point. Is there anyone else on the speakers list?

Mr. Kania, do you want to speak on the point of order or on the amendment?