Public Safety Committee on Feb. 3rd, 2011

[Andrew Kania, Liberal, Brampton West, ON]

How do you know? It's not a law yet.

[Michel Laprade]

--the legislation has a purpose and an objective.

[Andrew Kania, Liberal, Brampton West, ON]

Read it. You're a lawyer.

[The Chair, Conservative, Kevin Sorenson]

Let Mr. Laprade continue.

[Michel Laprade]

The legislation has an objective and a purpose. You can't simply create through a basket clause, the one we have, a clause that would put the minister outside of the legislation so that he could make decisions that are not at all in line with the object, the purpose of the act itself, which is international transfer and the context in which it works. I don't think this concern you have would appear.

[Andrew Kania, Liberal, Brampton West, ON]

Ms. Campbell was asking—

[The Chair, Conservative, Kevin Sorenson]

Very quickly, Mr. Kania. Then we'll go to Mr. Davies.

[Andrew Kania, Liberal, Brampton West, ON]

Ms. Campbell was passing the question to you, to go back to my original question, which was, if we eliminate (l)...because your analysis was that the problem with “may” and “shall” was because of (l). If you eliminate (l), then I assume, based on your first analysis, that you're okay with keeping it a “shall”.

[Michel Laprade]

If you eliminate (l) in the drafting the way it is, technically you can stay with “shall” and the courts will still interpret the legislation as being non-exhaustive. Still, they'll say, it is non-exhaustive and the minister can take any factor he considers relevant insofar as it is in line with the object and purpose of the act. That's what the courts have already said about the legislation as it exists now, so it won't change.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Laprade.

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Well, I am reminded of the old adage that one can ask three lawyers and get 10 different opinions. I think it's a healthy discussion we're having, and I think there's some validity to everybody's points.

I want to reassure Mr. Laprade—this is my amendment—there is nothing whatsoever in my amendment that is intended, by changing “may” to “shall”, to try to direct a particular outcome. So I was a little bit puzzled by your opening comments that responded to that, because that's certainly not what anybody on this side of the table is saying.

The bare question is a bare legal one, which is, do we as legislators want to draft legislation that requires a minister to address their mind to certain factors or leave it open to their discretion about whether they address their mind to certain factors? That's it.

I've been dealing with “shall” and “may” for 20 years in my legal career, and that is an absolutely legitimate question and one that is very well substantiated in law. Again, I want to emphasize Mr. Kania's point, again expressing that requiring someone to consider a factor doesn't mean that they can be overturned for anything unless they don't address their mind to that factor. It's just that the courts would be reviewing to make sure that the minister did in fact address their mind in good faith to the factors listed. It doesn't mean that the factors are present; it just means they addressed their mind to it.

I just want to say as well, because you have brought up the connection between “shall” and (l)...the first thing I want to tell you is the NDP does have an amendment to eliminate (l). Number two, the thing about (l) is—and here is one of my positions, which I won't go into too much detail—

[The Chair, Conservative, Kevin Sorenson]

Very quickly, Mr. Davies, because we will have time to debate (l) when we get there—

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, but with respect, Mr. Chairman, Mr. MacKenzie asked the counsel to comment and he brought it up, so I can deal with it.

Frankly, we don't need any of the other factors: just keep in (l). Why don't we just say.... If an application for transfer comes in, how about this: “The minister may consider any factor that the minister considers relevant”? Boom, we're done. You don't need anything else.

I also want to comment to Mr. Kania that although I agree with him in substance, there's something I disagree with him on. I want to say this: there is a slight difference, but a pivotal and profound difference, between wording a basket clause that says “and any other factor that is relevant” and a clause that says “and any other factor that the Minister considers relevant”. Those are two different things, because the first one, relevance, which is a very well-established test in law, establishes an objective test and an objective review. The second one places an objective review on a subjective decision.

Now, I've done a lot of administrative law in my time, and I can tell you that you're right: that doesn't give licence to the adjudicator to come up with any perverse, irrational factor and call it relevant. The courts will always review, but it lowers the test when the test is one of someone asking if this is a relevant factor or not, or did the minister consider this to be relevant? They will give more deference to a minister if they apply their subjective discretion in terms of determining what's relevant.

Still, of course, I agree with you, with the overriding review to make sure that it's not perverse or irrational or bearing no resemblance to the decision under question. I appreciate your remarks to us today, but with respect, I don't think any of that changes the fact that the bare question before this committee is this: do we want to require the minister to consider factors or do we want to leave it open to their discretion whether they consider them at all?

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chairman.

Mr. Laprade, looking at the bill as a whole, I see that there is no criminological analysis. And, in fact, a number of bills reflect the same trend.

In terms of transferring inmates from one country to another, or even from one institution to another inside Canada, the risk analysis is not as for a transfer of offenders from an institution to the outside; it just isn't the same.

In this bill, based on the underlying risk analysis, it's as though inmates in foreign institutions were being paroled. An example is paragraph 10(1)(h) which talks about “whether the offender has refused to participate in a rehabilitation or reintegration program”. That is a risk assessment factor for parole, not for transfers from one institution to another. In fact, “whether the offender has accepted responsibility for the offence” is one of the criteria typically used to assess the risks associated with parole.

Not only is the bill problematic because of the subjective nature of the power and duties associated with it, but some of the factors listed have absolutely nothing to do with the kinds of things that should be considered, from a criminological point of view, when an inmate is transferred from one institution to another. And yet these factors are extremely relevant in any risk analysis associated with parole. That is already stated in the Corrections and Conditional Release Act. Officers do that on a daily basis, assessing the degree to which there is recognition of the offence committed, participation in programs, and so on.

In my opinion, this bill has basically missed the boat in terms of criminological analysis. I am not blaming you in any way for that; it may have nothing to do with you. I'm sure you only follow the instructions you're given. But it is systematic, Mr. Laprade. That lack of criminological analysis is evident in every single bill tabled by the government. It might be a good idea to have a criminologist on the team. It might result in better bills, from both a criminological and legislative standpoint.

Personally, as a criminologist, I believe this bill requires a great many amendments, particularly with respect to powers and duties.

Thank you, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Did I see a hand over there? Mr. Rathgeber?

I don't have anyone else on the speaking list here, so are we ready to deal with this?

We do have the one just on the wording. This is a subamendment that we would have to deal with in the amendment, and that is Ms. Mendes' subamendment dealing with the French, as Madame Mourani said, to make it come into line with what is in English.

So the first vote will be on that subamendment to have the wording be the same as the wording would be in English. Are we all in favour of the subamendment, Ms. Mendes' subamendment to Mr. Davies' amendment?

(Subamendment agreed to)

Are we ready for the question on the amendment? Shall the amendment carry?

(Amendment agreed to on division)

For NDP-2, it's the same as L-1.

You guys are working together again, I can see. You have basically the same amendment here, which is good.

I'll have Mr. Davies speak to NDP-2.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

I do have to correct you. The Liberals and NDP were not working together on this. We just happened to come to the same conclusion on this.

In keeping with, and flowing from my comments already made, the purpose of this amendment is to strike the words “in the Minister's opinion”, which is what the Conservative amendment seeks to do, in that it seeks to inject into the consideration process the words “in the Minister's opinion”.

Once again, what we would like to be considered is an objective standard, not a subjective one. In the case here of proposed paragraph 10(1)(a) under consideration, the clause would require the minister to consider whether, as it presently reads, “in the Minister's opinion, the offender's return to Canada will constitute a threat to the security of Canada”. With respect, I think it is a dangerous and inappropriate amendment to start changing the consideration of a factor that can be reviewed on an objective standard, to start changing that to a subjective one.

Again, I've done a lot of administrative law and judicial review cases in my life, and I know that if this change were allowed to go forward as the Conservatives propose, and this came before a judge upon review, the first question they would have is whether the judge is influenced or not by Parliament's deliberate decision to inject the words “in the Minister's opinion”. I know there are canons of construction in law, that words are put in legislation, and they must be given meaning.

Another canon of construction is that Parliament intends what it says. So if we change it to say “in the Minister's opinion”, then what we are doing is watering down that objective test and injecting an element of subjectivity. The question then becomes whether or not the minister's opinion is something that is reviewable.

Once again, as I said before, I don't think that gives the full gamut. It doesn't open up the door to any item that the minister could consider. It still would be I think circumscribed, as has been said by Counsel Laprade, by factors in law that can't be perverse and can't be irrational, but certainly it widens the test to what a particular minister of the day may subjectively think or not, and that is unfair. I think it also will affect the ability of our courts to review these decisions on the basis of fairness.

I would urge my colleagues to uphold an objective standard in law, one that allows the minister to make a decision, but to have that decision reviewed on the basis of objective evidence and objective reasoning, not on one person's opinion.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Chair, I respect that Mr. Davies has been a labour lawyer for a long time and has appeared before many judicial bodies, but I really, with all due respect, don't think that he should determine what a judge would or wouldn't say. I know that I've had the opportunity to be on the other side a few times, and lawyers tend to argue both sides so the judge makes up his mind. It shouldn't happen in this body that we determine what judges would say.

Equally, I think, it's fair enough for a court, if in fact it gets to that point, to consider the relevancy of what the minister would certainly consider. These are not black and white issues. These are issues that are in fact determined on the basis of opinion, but they're based on opinion given by officials who study them based on the law that's there.

I know the coalition will talk about the Conservatives, but these are laws to be put there for the Government of Canada, for the minister of the time. He makes that stretch that it's the Conservatives. It may or may not be his party at some time. It might be a coalition party. Who's to know?

At least those are the issues that the officials who make the references and the recommendations to the minister would have as part of their tool box, if you will. I think it's logical. I don't think we should look at them in terms of total black and white. I think the officials could tell you that they look at these issues as being what they would then pass on to the minister as a recommendation.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. MacKenzie.

Go ahead, Mr. Holland.

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

Thank you, Mr. Chair.

I'm not so sure that it's us working closely together or that the flaws are so self-evident that they write themselves....

I'm also not sure, when Mr. MacKenzie refers to coalitions, which coalition he's referring to. Is it the Conservatives and the Bloc currently working on the pardon issue or the...?

[The Chair, Conservative, Kevin Sorenson]

Just continue on the actual amendment, Mr. Holland.

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

I'm just curious. I'm just curious about his wording.

In any event, look, I think in a generalized sense that the point to be made here is that when you take a look at the wording without “in the Minister's opinion”, it's then left up to the courts to use a reasonable person.... The court defaults to an ordinary, average, reasonable person on whether or not they could come to a conclusion, with the facts in front of them, that the person represents a risk. The only reason you would insert “in the Minister's opinion” is to lower that threshold; it would lower it from being in the mind of a reasonable person to being in the mind of the minister.

Now, what you're asking the court to do is to determine whether the minister feels that there is a threat. To use an extreme example, if you have a minister who is particularly paranoid and legitimately afraid of everything—actually, we don't have to think too hard to think of that example—and who sees scary things all the time everywhere, all of a sudden, the courts could say well, yes, in his mind, pretty much anything is scary. Now obviously I'm joking to illustrate a point, but the point does remain that it significantly lowers the bar.

This gets me to the point more broadly that Mr. MacKenzie made earlier on about the admissibility of our amendments. I begin to wonder if the real purpose of the bill is not in fact its stated purpose but is to simply lower the bar, so that you don't have to worry about so many court challenges. I wonder if the real purpose of this bill is to in fact give the minister a much freer hand to do whatever the minister wants.

Because to go to the point that Mr. Kania was making earlier, with all due respect, if the minister has anything that really is in his or her mind, this bill allows the minister to feign concern in any particular area, provide some evidence that it is the concern, and make it almost impossible to challenge that decision. It builds a fortress, a wall, a castle, around the decision of the minister, with very little placed before it. It gives the minister the ability to put ironclad protection around what he or she decides is or is not important. That, in my opinion, is a very different objective than the stated objective of this. Maybe that's why we have a difference on whether the amendments are or are not admissible.

As a general comment going forward--and I won't make it again--I think it's extremely important for us to not lower that bar. Let's keep it at the bar the law keeps it at, which is “in the mind of a reasonable person”. Would a reasonable person ascertain these factors to be relevant to deny a transfer? That's an appropriate and intelligent bar to set. To lower it makes, in my opinion, no sense.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Holland.

We'll go to Mr. Rathgeber.

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

Thank you, Mr. Chair.

I'd just like to advise the committee that I will be voting against all of the proposed amendments by the NDP and the Liberals, but I will only state my objections once, for the record.

The purpose of this bill is to replace four mandatory requirements for the minister with 12 or 13 discretionary considerations for the minister to consider if he or she deems those considerations relevant. Almost all--or perhaps all--of these proposed amendments remove ministerial discretion and make the 12 or 13 or 14 considerations mandatory. I would suggest to the committee that the proposed amendments are completely negative to the intent of the bill as referred to the committee by the House.

However, as the chair has ruled the first amendment in order, I suspect that a similar ruling would be forthcoming with respect to the rest of the amendments. But I believe that all of these amendments defeat the initial purpose of the bill, which was to give the minister discretion with respect to 12 or 13 factors. The amendments clearly are trying to remove that discretion and I'll be voting against each and every one.

With those objections on the record, I will defer back to the chair.