Public Safety Committee on Feb. 3rd, 2011

[The Chair, Conservative, Kevin Sorenson]

Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you, Mr. Chair.

If you look at the addition of “whether, in the Minister's opinion”, which is sort of added everywhere--on page 2, it's in proposed paragraphs 10(1)(d) and (e)--there's only one purpose to put that phraseology in. It's to provide extra shielding around a minister's discretion if there's judicial review. That is an attempt to avoid judicial review and to keep judges away from telling the minister that he or she has made a wrong decision, just as they've done, in a number of cases recently, under this government.

So from my perspective, when you look at the purpose of the legislation, which is to “enhance public safety”--that's one of them, at least--it makes no sense to me that.... This is part of what my colleague from the NDP indicated, and he's right. It makes no sense that you're providing further discretion to the minister, in essence allowing the minister to do whatever he or she wishes. If you take out “in the Minister's opinion” in these various clauses, all you're doing here is you're requiring the minister to consider that factor as one of the factors in making the decision.

To take it to a different level, what you're actually doing by adding “in the Minister's opinion” is you're allowing the minister not to consider that factor, which could go against public safety and the best interests of Canadians; secondly, you are taking away and reducing the possibility of judicial review to get around those court decisions that the government doesn't like, based on their previous actions.

So from my perspective, in terms of “a reasonable person”, I don't understand the amendments.

I don't see how in any way it enhances public safety. Secondly, I think it goes against the rule of law.

So I'll be voting against them in terms of the amendments.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Kania.

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

I have a couple of quick points. First of all, the Conservatives propose this change to the current law, to add the words “in the Minister's opinion”, so the change must mean something. They intend to do something by adding those words. Of course they're attempting to take, as Mr. Holland eloquently put it, an objective standard that can be reviewed on an objective basis so that a court would determine in the case of proposed paragraph 10(1)(a) whether the offender’s return to Canada “will constitute a threat to the security of Canada”. They want to inject into that a test of whether, “in the Minister's opinion”, that would be the case.

That leads me to my second point: that concentrates far too much power into the hands of one person, in my respectful submission. The decision then becomes whether the current sitting Minister of Public Safety thinks, and only if he or she thinks, an offender's return to Canada would constitute a threat to the security of Canada. Again, I'm concerned about the review standard being altered by a court on review, which no longer would be able to review whether or not there was some evidence upon which a reasonable person could find that the offender's return would constitute a threat to the security of Canada. It alters that test in some fashion because the Conservatives are injecting the words, so it has to make some difference. It can't be the same.

I also want to point out that in the evidence before this committee, it was my recollection—and Ms. Campbell or somebody else can correct me—that the jurisprudence on the reviews of the minister's decisions has not established a record that shows there's a serious problem of the courts overturning ministers in this country. I don't think that's the case. I think there has been a small number of cases that have gone to judicial review and a very small number of the ministers' decisions have been overturned. That is my recollection of the evidence.

I also just want to direct a few comments at the comments of Mr. Rathgeber. Herbert Spencer has a famous quote about the problems with contempt before investigation. I would amend that to say that there should be some contempt about voting before listening to debate, because he's already indicated that he's going to vote against every amendment before he's even heard them.

I can tell that's an uninformed decision because he said there are 12 or 13 factors for which this legislation would give discretion to the minister. If he actually read the amendments, he would see that the amendments seek to remove at least four of those criteria. So it's not 12 or 13; we seek to cut down the criteria. I would urge him to keep an open mind and listen to the debate and discussion on each amendment, as I think all of us should do. We should be respectfully listening to all the points being made and considering all the amendments.

I just want to say again, and finalize my comment about Mr. MacKenzie, that nothing in my comments suggests that I know or don't know what a judge is going to say or do. Now, I know that Mr. MacKenzie is not a lawyer, and I used the phrase “canons of construction”, so I'll tell him what that means.

In law, there are rules of statutory interpretation. This is what you learn when you go to law school, and you learn how judges will interpret legislation. There's a series of rules about that, and one of them is that they will give meaning to every word in legislation. All I'm pointing out is that when you put words into legislation that say “in the Minister's opinion”, you alter the way a judge will read that clause. They will compare old legislation to new legislation and notice that Parliament added those words.

It is as predictable as rain in Vancouver in February that they will determine from Parliament an expressed desire to alter the test from an objective one to one of the minister's subjective opinion. I argue that having one person in Canada, no less than the Minister of Public Safety—not the Minister of Justice but the Minister of Public Safety—make a determination upon where someone is incarcerated or whether a Canadian citizen has the right to come back and serve his or her sentence in a Canadian prison, whether that's desirable or not, is an unwelcome and ill-advised development in our law.

[The Chair, Conservative, Kevin Sorenson]

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Mr. Chair.

I'd like to respond to Mr. Davies. First off, he's a bit dangerous when he talks about people not reading all of his amendments. I would suggest to him the same might be true of a budget: that when you decide to vote against a budget before you've read it, it might be a little off.

I would also say that he's absolutely right: I didn't go to law school. But I know that one thing they don't teach you in law school is common sense, and some of this stuff is pure common sense. The courts are frequently able to judge things in a common-sense way.

But I think what you're—

[An hon. member]

Frequently...?

[Dave MacKenzie, Conservative, Oxford, ON]

Well, don't sell the judges short in this country.

What I would like you to do, Mr. Chair, is ask the members, the officials here.... Because I think one thing is that this has got way off base. The coalition members on the opposite side take this as purely a Conservative partisanship thing. I know that when the Liberals were in power, they approved virtually 100% of these applications. But when we start to apply the law as it is written, there will in fact be times when people will take a matter to the court. If you always say “yes”, obviously you'll never have a judicial review. So when we started to apply some of these things that were in the legislation.... Now, this is an attempt, I would suggest to you—and the officials can give you a far better view of it—to put into context how Canadian society is best served, taking victims into account.

I haven't heard one word about victims in Canada. It's always about criminals outside Canada who want to come back. This whole thing takes into account the concern of victims and people in this country. But I wonder if the officials.... It's always being put in the context of the minister, but in fact it's broader than the minister. We can't look at this legislation or any legislation as a current minister, a previous minister, or a future minister...it's in the context of the Government of Canada. I'm wondering if the officials could give us a little background to that.

[The Chair, Conservative, Kevin Sorenson]

Okay.

Ms. Campbell, and then we'll come back to Ms. Mendes.

[Mary Campbell]

I have a couple of points of information. In terms of the judicial reviews to date and where the government or the courts have ruled, I think the figures that we gave at a previous session were that six applications for judicial review were dismissed, which means the government was successful, and in four cases the applications were granted. That was since 2004 in the Federal Court in a total of 10 cases. We just had five decisions yesterday in which two of the applications were dismissed and three of the applications were granted, so it's probably about a 50-50 split.

On the issue of ministerial decision-making, I guess my perspective comes from having done this job since 1985. I've had responsibility for international transfers in the department throughout that time period, so I've seen many, many decisions on or discussions about transfers during those decades.

I think as a public servant I go back to section 6 of the existing act, which states, “The Minister is responsible for the administration of this Act.” It is the minister. the minister, of course, is always provided with advice, but I think there's a difference between, if I may, a minister's personal opinions and the minister acting as a minister of the crown.

Without revealing too much--at least prior to publication of the book, there have been occasions when a minister has perhaps expressed more of a personal opinion. I can assure you that officials have the obligation and are very quick to advise the minister about the parameters that surround his or her decision-making. So it's not, if I can just be clear, a minister sitting alone making a personal decision about something. It is a minister operating as a minister of the crown in conformity with the law.

On the addition of the words “in the Minister's opinion”, clearly, reasonable people can disagree about the impact of that on the test, but I think it's really to clarify that it is the minister who is responsible for this act. It is the minister who must make the decisions and will be guided by advice. Mr. Laprade has just pointed out a portion of a judgment from yesterday that states, in one particular case, “While the Minister is not bound by his Department’s advice, it is incumbent on the Minister to advance his reasons for coming to a different conclusion”.

So even if the minister takes a position, which happens occasionally, that is contrary to advice, nonetheless in the ITOA situation the courts have said it must still be reasonable and rational, and conform with the case law. So all I can offer from our perspective is that this was really a clarification. I appreciate the point that, yes, courts do ask why something has changed--there must be a reason. Sometimes the reason is a rather large substantive one. Sometimes the reason is really a clarification, in my experience. I don't know if there's anything else I can offer that would help.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Ms. Campbell.

We'll move to Ms. Mendes.

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

Thank you, Mr. Chairman.

I would like to come back to one of the goals of these amendments to the act, which is to enhance public safety. It seems to me this is a proven fact and not simply wishful thinking on the part of more liberal parties, if you will. Public safety is far better served when you retain the ability to support, supervise and, especially, rehabilitate offenders. We're talking about offenders who committed crimes abroad, not in Canada—obviously. The victims Mr. MacKenzie refers to are not in Canada; they are in other countries. We may well sympathize with the victims, but it's important to remember that our government is responsible for its own citizens, whether they are offenders or not. If we bring them back to Canada when they are still serving a prison sentence, we have an opportunity to rehabilitate and supervise them. If they come to Canada once they've already served their sentence, we no longer have any trace of them. That argument has been made I don't know how many times. So, I really do not see how the amendments proposed by the government will enhance public safety. I just don't get it. On the contrary, they will do away with any opportunity to follow up on offenders who committed offences abroad and then return to Canada.

I'm finished.

[The Vice-Chair, Liberal, Mark Holland]

Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you, Mr. Vice-Chair.

I wanted to speak about something Mr. Davies said about Mr. MacKenzie.

I'm actually going to come to your defence a little bit, Mr. MacKenzie, because, although you're not a lawyer, obviously you've had a very distinguished career as a police officer and a police chief. So I have no doubt that you are aware of legal interpretation in construction of the law.

I must say--and I mean this as a compliment to you--that I think you probably have some difficulty championing and carrying some of this legislation forward because of your reasonableness. I think this is one of those pieces of legislation.

As for comments like “nobody's talked about the victims in Canada”, well, for these people the victims are abroad. To me, when you say, “victims in Canada", and that we're not considering them...they're not in Canada.

Let's look at the analysis of this legislation. You're taking somebody who's incarcerated abroad and you're seeking to transfer them back to Canada, to a prison. We're not releasing these people onto the street. We're putting them from jail to jail. In terms of a public safety analysis, I truly don't understand what the problem is.

When you talk about the benefits of transferring them here, you have things like their families being able to see them and all of that, which I think helps with the larger goal of trying to rehabilitate these persons. Because, by and large, almost all of these persons will be released into Canadian society at some point in time. So if they're going to be released into Canadian society we need to make sure they get proper rehabilitation, which will not occur in many jurisdictions abroad.

The other point that has been raised numerous times is that of having a criminal record. If they are incarcerated, bear their entire sentence abroad, and have no criminal record when they come back to Canada, we can't control them in any way. It's better, in my view, if these prisoners--unless there's a really strong reason--are brought back to Canada, rehabilitated, and released under our system. They have parole and they are controlled, and we at least then, I believe, are actually protecting Canadians in a responsible manner.

The philosophy of this legislation, to be honest, is that one side of the table wants to keep the people abroad and not bring them home, and this other side of the table believes it's better--with some exceptions, obviously, if there are public safety issues--to bring them home, rehabilitate them, and make sure that we have controls upon them when they're released into society. That's the best way to protect the Canadian public. I think that's the clear philosophical difference.

You're allowed to believe that. We don't believe that, and you know it, but when we look at these various arguments used in support of your position, I don't think they're actually rational, especially when you talk about victims, because the victims are abroad.

Thanks.

[The Chair, Conservative, Kevin Sorenson]

I guess therein lies the debate of what the bill is and whether or not it should be gutted.

We'll move to Mr. Davies, Mr. McColeman, and Mr. Norlock.

[Don Davies, NDP, Vancouver Kingsway, BC]

Well, I think it's important to shift this debate into what I think we all agree with. I think everybody around this table agrees that we should have an International Transfer of Offenders Act.

I can speak for the New Democrats and say we also agree that when someone been convicted of a crime abroad, there should be a process for determining whether or not they are a suitable candidate to serve their sentence in Canada. In that regard, Mr. MacKenzie said he hadn't heard a word about victims, but I actually have spoken about victims in the debate. Even today, I opened up my comments by saying that proposed paragraph 10(1)(b), which sets forth three different criteria that should be considered when determining whether an applicant should be able to serve their time in Canada, specifically relates to whether or not transferring that person to a Canadian prison would have a dangerous impact on victims.

I think in some cases there could be victims in Canada. Most of the time I think victims would be abroad, but there could be victims in Canada as well, if someone is sentenced abroad. The New Democrats think that is a valid consideration to take into account, and if that person does constitute a threat to the safety of those victims, then on that, I have no problem with the minister turning down that application.

Really, the question before us is one of structure and how we get a fair process to answer that question. I agree with Ms. Campbell and stand corrected that it is the Minister of Public Safety who administers this bill. I respect that, but from a structural point of view it is, in the New Democrats' point of view, neither healthy nor desirable to have power concentrated in one person's subjective opinion.

I want to conclude by saying, again, that the basis of the New Democrats' position is that offenders who represent a threat to the security of Canada or a threat to other Canadian citizens, whether they're in prisons or outside prisons, and whether or not those people have any other factors that are listed in the act that would preclude them from being suitable candidates to serve their time in prison, should be precluded from being transferred. But what we must keep in mind, as I said earlier, is that a person who is convicted of a crime abroad, if they are released from prison, will come back to Canada.

I was moved by the evidence I heard, which was that when this happens, if they've served their time and we don't transfer them to Canada, we run the risk of having them come back into Canada without our knowing that they've actually been convicted abroad. We run the risk of having those people come back into our communities without our having any knowledge or information that they're there. They could be sex offenders. We wouldn't even know that. We also lose the ability to ensure that they have access to rehabilitation programs in prison. Last, we don't have any ability to put them under supervision in the community as part of their sentence.

All of those things add up to one thing: that not transferring offenders in many cases will make our communities less safe and more dangerous places. That's what is fuelling the New Democrats. There is no desire to gut any bill. There's a desire on the New Democrats' part to strengthen public safety, and also to make sure we have a fair, judicious approach that gives the minister the ability to make the appropriate decision, but also makes sure that it's administered in a fair and judicial manner.

The amendments that have been proposed by the government in this respect do two things, in the New Democrats' opinion: they make our communities less safe, and they replace a judicious, fair standard with one that is subjective and concentrates power in the hands of one person.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

Mr. McColeman.

[Phil McColeman, Conservative, Brant, ON]

Well, I'm not a lawyer, and everybody knows that. I'm a contractor, and it's interesting to me to listen to the debate today and to hear some of the comments, such as the one Mr. Kania made, about the philosophical differences and the fact that we want to just keep convicts in prisons abroad, which is so far from the truth that it's ridiculous to contemplate.

It's interesting to listen to the experts who have come to tell us about the court system that has rendered decisions and about using case law as the guiding principle for the enhancements to the minister's ability to handle all types of situations. Taking partisanship right out of it, we should listen to what that case law is and what those decisions are, because they're done impartially. They're done by judges who are not able--and to my knowledge are not supposed to--to take any particular philosophical ideological point of view, but who are to listen to the evidence and decide whether it's in the best interests of our country to allow someone to come back or not. So we have case law.

As I look at this issue today, I can see that the debate is definitely along ideological partisan lines, perhaps for the purposes of political gain—by the coalition, perhaps--but as I weigh how I will vote on this issue, I'm listening to the people who have had the experience. We have someone at the end of the table who has served since 1985 and knows the decisions that have been made. We just had evidence provided to us of the most recent decisions, those just made: that the impartial courts turned down I think two applications and approved three on judicial review.

So what we're talking about here is not concentrating discretion into one person's hands and having him or her administer: it's giving them the enhanced tools to be able to do their job better. It would be like me, in my business, saying that I'm not going to buy the skillsaw and we're going to let everybody still use the handsaw.

I will be supporting this legislation as written, because I've listened to all sides and everybody has put their partisan spin on this. To me, the case law, the experience, the reasons for wanting this, and the enhancements in order to do a better job as the minister and the ministry, all make good common sense.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. McColeman.

Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

Well, the person I wanted first off to hear what I had to say is not in the room, but that's okay. We sometimes compliment each other, but those compliments that just came across a few minutes ago from Mr. Kania I believe to be backhanded compliments, and somewhat condescending, although he may not have meant them to be.

I guess I'm sensitive when I hear people saying that it's unfortunate that you're not a lawyer. One of the great things about this Parliament of ours is that it allows people—

[Don Davies, NDP, Vancouver Kingsway, BC]

Excuse me, Mr. Chairman. I have a point of order.

[The Chair, Conservative, Kevin Sorenson]

Yes.

[Don Davies, NDP, Vancouver Kingsway, BC]

I'm not sure about this, but I know that in the House it is inappropriate to refer to someone not being present in the House. I don't know whether the rule is the same in a committee--

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

If it is, I apologize.

[Don Davies, NDP, Vancouver Kingsway, BC]

-- but if it is, Mr. Norlock just offended that rule.