I was well aware of that, Mr. Speaker, but it was disrespectful to us.
Now, I am pleased to speak today on Bill C-33, An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences. I am pleased to speak as the Bloc Quebecois critic on matters relating to the solicitor general.
We are in favour of this bill—in principle, and I emphasize “in principle”. The aim of the bill is to establish procedures for transferring offenders to Canadian correctional institutions for humanitarian purposes, and we agree with this.
Nevertheless, we have reservations when it comes to implementing the Youth Criminal Justice Act. Despite the recent opinions of the Quebec Court of Appeal in this matter, the federal government has decided to sentence young people of 14 and 15 as adults. I will take a closer look at this a little later in my speech.
Naturally, we are in favour of bringing criminal offenders back here, when one considers the prison conditions in some parts of this planet. These transfers, therefore, should take place in a spirit of close cooperation among the countries signatory to the treaties and administrative agreements. These transfers take place within a specific and comprehensive administrative framework. The guidelines for implementation are specified in the present bill.
A standard agreement would be set up, with a quick, simple administrative framework for transferring persons found guilty of criminal offences in a foreign country. The same would be true for foreign nationals in Canada.
The aim of the bill is to facilitate the transfer of foreign offenders to their country of origin, and Canadians imprisoned abroad back to Canada, in a quick and simple way.
Modern means of communication and transportation clearly make it easier to set up an efficient administrative framework in order to achieve the humanitarian objectives of this bill. As access to means of communication and transportation become easier, crime also becomes more international and that is why we must find transborder methods to meet these specific needs.
Increasingly, criminal policy refers to social reintegration as the key factor in offence resolution, and that is why it is increasingly necessary and essential to transfer offenders to achieve this goal.
There are also humanitarian considerations when transferring an offender. So, the parties will take into account communication difficulties resulting from linguistic barriers, alienation from culture and local customs and the lack of family contact. All these factors have a negative effect on offenders with regard to their sentence.
We can, therefore, conclude that repatriating offenders holds a certain interest for both offenders and the government, as well as for society.
Respect for the sovereign rights of states must take precedence. That is why the consent of the parties is required under the bill. Convicted offenders must also consent to being transferred. Bill C-33 is therefore solely a procedural instrument. Furthermore, much of the bill deals with the congruency of sentences handed down abroad and those handed down in Canada. The Council of Europe adopted its Convention on the Transfer of Convicted Persons, in 1983, in Strasbourg.
There are various parallels between the Council of Europe's convention and the bill before us. First, there is the need for states to collaborate and, second, the need to ensure the social reintegration of offenders. I should add that the convention fully respects the national laws of each member state.
In fact, article 13 of the convention states that the sentencing state alone shall have the right to decide on any application for review of the judgment.
Earlier I mentioned that the Bloc Quebecois has some concerns about certain provisions of the bill. I am thinking of clause 18, which stipulates:
A Canadian offender is deemed to be serving an adult sentence within the meaning of the Youth Criminal Justice Act if
(a) the Canadian offender was, at the time the offence was committed, from 14 to 17 years old; and
(b) their sentence is longer than the maximum youth sentence that could have been imposed under that Act for an equivalent offence.
We do not support this provision. We believe that the chances are high that 14- and 15-year old adolescents are serving sentences that are far too heavy.
I mentioned that the Court of Appeal of Quebec gave its opinion in the case of the Government of Quebec's order regarding the reference concerning Bill C-7 on the youth criminal justice system. According to Quebec's Attorney General, the breaches of freedom and psychological welfare that result from criminal charges against a minor are exacerbated by the system that presumes subjecting youth to adult sentencing.
This procedure violates that presumption of innocence, guaranteed under paragraph 11( d ) of the Charter and recognized by the Supreme Court as a fundamental principle that is protected by section 7.
Paragraph 11( d ) of the Charter establishes the right:
to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Quebec's Attorney General also argued that the procedures involved would be similar to those used in declaring someone a dangerous offender, in that they cause similar harm.
The Youth Criminal Justice Act therefore violates the freedom and safety of adolescents, which contravenes the principles of fundamental justice because it does not specifically require that the factors that the court must weigh when determining whether an adolescent should be subject to adult sentencing must be proven beyond all reasonable doubt. This is found in subsection 73(1) of the act.
The Attorney General of Canada argued that the new legislation, which is an exception to the adult criminal system, is in line with an approach that balances the interests of society and those of adolescents in such a way as to make the taking into account of the specific situation of adolescents a major consideration. In response to the question raised by the Attorney General of Quebec, whether the elements set out are indeed principles of fundamental justice, the five judges of Quebec's Court of Appeal agreed that they were.
On page 63 of this opinion, we read that the expression fundamental justice in the context of section 7 is not limited to rules of procedure, but includes substantial principles. This means that to withstand Charter scrutiny any psychological security violation must be fundamentally warranted not only procedurally but also in relation to the objective, in accordance with the basic tenets of our legal system.
The Quebec Court of Appeal judges added that there is a wide consensus about these elements because of the essential role they play in the Canadian legal system. Their vital importance has been recognized ever since the very first legislation on the subject-matter. Over time, the details were worked out to meet the particular situation and needs of adolescents more and more specifically.
I also want to draw attention to what Justice L'Heureux-Dubé wrote in the 1989 Supreme Court decision in R. v. M. (S.H.), 2 S.C.R., on page 446:
[This brief legislative history of] the provisions of the Young Offenders Act amply demonstrates that for nearly one hundred years Parliament has committed itself to the separate treatment and rehabilitation of young persons involved in the criminal process.
I read further:
The underlying philosophy has been from the beginning that it is in society's interest to assist young offenders “to strengthen their better instincts”. An attempt is made through the legislation to “prevent these juveniles to become prospective criminals and to assist them to be law-abiding citizens”.
Unfortunately, this government has chosen to ignore this legacy and expertise by doing away with the Young Offenders Act and replacing it with a piece of legislation that is pretty shaky in terms of its wording, as demonstrated by the Court of Appeal of Quebec, and questionable where its rehabilitation objectives are concerned.
The Bloc Quebecois took a clear stand against this new legislation, which disregards nearly 100 years of history and practice, and opens the door to challenges.
The Bloc Quebecois opposed the Youth Criminal Justice Act, and the Court of Appeal of Quebec recently proved us right. We will continue to be vocal opponents of this poorly worded legislation whose sole purpose was to clumsily reassure the public.
In the reference in question, the Court of Appeal of Quebec reviewed the provisions giving effect to the presumption of adult sentences for designated offences.
It is clear that the provisions of the new legislation on youth offenders broaden this assumption, in that it will now apply to adolescents aged 14 and 15. On page 67, the court said:
Although the presumption may be set aside and the court may retain greater discretionary powers with respect to the appropriateness of imposing such a sentence rather than an adult sentence, it is no less true that the legislator has clearly indicated in sections 62 and 72 that the usual sentence applicable to designated offences is that imposed on adults guilty of the same offences. It also sends a clear message to the population as a whole that, in general, adolescents are dangerous criminals if they are 14 years of age or older when they commit certain offences. In other words, applying adult sentences has the effect of stigmatizing the adolescent guilty of a designated offence.
I still remember my remarks on Bill C-7 on young offenders, when I wondered about the real purpose of the bill. I remember that I said the bill was clear on one issue, that Canada did not want young people any more, only adults.
They were presenting us with a bill that completely eliminated one segment of our population in order to comfort society and give it a false sense of security, by saying that there is no more juvenile delinquency, because it would be transformed into adult delinquency, much tougher and much more punitive.
I also asked myself why society was the intended target of this bill, when the true client group for the bill ought to have been young offenders. Did the government really believe that it could deal with juvenile crime by giving the public a false sense of security, when the real issue was to lower the crime rate among young people?
Bill C-7 had its objectives backwards. The government had completely forgotten whom this bill was for. Should we rehabilitate young offenders or should we give an illusion of protection to society by lowering the age at which adult law applies?
Now, in reading this bill, and clause 18 in particular, I realize that my questions are still valid.
The Quebec Court of Appeal has provided us with several responses that, it must be said, clearly rankle the Liberal government. The Court of Appeal was categorical. The imposition of an adult sentence is not essential to achieving the goal of the Youth Criminal Justice Act.
On page 69 of the opinion, the Court of Appeal judges analyzed these provisions and concluded that, in this respect, clearly, the new legislation presumes that adult sentences be applied as a general rule. From now on, this legislation places upon minors the onus of demonstrating why an adult sentence should not be imposed.
The Quebec Court of Appeal added that Supreme Court case law is, however, clear. Section 7 of the Canadian Charter of Rights and Freedoms states that, during sentencing, the onus is on the Crown to establish beyond all reasonable doubt the aggravating circumstances surrounding the commission of an offence. Paragraph 724(3)( e ) of the Criminal Code requires the prosecutor to establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
Subsection 72(2) of the new Youth Criminal Justice Act, therefore, violates the rights guaranteed under section 7 of the Canadian charter in that it places on the young offender the onus of proving the circumstances surrounding the commission of the offence, the lack of a previous record at the time of the exemption, as well as the other factors listed in subsection 72(1).
The onus should instead be placed on the prosecutor who wants the court to impose an adult sentence to show the fitness of such claims in terms of the factors set out in subsection 72(1), once a request has been made. The prosecutor should also have to prove the existence of facts justifying the imposition of an adult sentence. Once this has been done, the courts could decide whether to impose such a sentence on a young offender.
The judges add that even the presumption of this imposition is a violation of the rights to freedom and the psychological freedom of adolescents, which does not conform to the principles of basic justice.
However, the problem posed by various provisions of Bill C-33, under debate, is that the 14-year-old or 15-year-old adolescent who has been sentenced abroad automatically falls under this imposition provision, no matter what the circumstances.
Not only does the adolescent fall under the adult sentencing system, he cannot even propose any evidence to the contrary that would limit application of this presumption.
Automatic application of this presumption is discriminatory in that it creates different categories of adolescents. Some will therefore feel the effects of the presumption, and will present evidence to the contrary, and others will not be able to do so, since they were convicted in another country.
There is one interesting point to which I would draw your attention. At the time of the Summit of the Americas in Quebec City, the Government of Quebec followed the minimal rules for detention according to the rules adopted by the first United Nations Congress on the prevention of crime and the treatment of offenders, held in Geneva in 1955, and approved by the Economic and Social Council in Resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.
Among the preliminary observationswe read:
The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.
In view of the great variety of legal, social, economic and geographical conditions of the world, it is evident that not all of the rules are capable of application in all places and at all times.
They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations
I would also draw your attention to one specific rule which addresses the treatment for children, It is 5.2, which reads:
The category of young prisoners should include at least all young persons who come within the jurisdiction of juvenile courts. As a rule, such young persons should not be sentenced to imprisonment.
This in an international principle we are in the process of reshaping to suit ourselves, in order to be able to work around it. It is inconceivable that someone could not be aware that this was what was being done. We must not lose sight of the fact that we are all answerable to the public.
I would like to know how the Liberal government could justify such a discriminatory and harmful application of these provisions regarding adolescents, without feeling any public backlash.
We cannot pull the wool over the eyes of the public like this just to please the government. The impact is far too great to be ignored. I would therefore ask the government to review certain provisions of Bill C-33 to allow for a fair and equitable application for everyone, including adolescents aged 14 or 15.
We have an established principle here whereby everyone is equal in the eyes of the law. Yet, this principle of equality before the law would not apply in the present case. How would sentencing be determined when some of the criteria are not admissible?
Members must carefully study all of the provisions contained in Bill C-33 in committee. The scope of some of these provisions is enormous and they must be paid careful attention, which is what we will do in committee.
As I mentioned at the outset, we support the humanitarian principle of this bill, and as I have just demonstrated, we need to make the necessary amendments to ensure it is applied fairly and equitably and that it respects the principles of fundamental justice set out in the charter.
A second aspect that concerns me is that of the availability of resources. Individuals must not be refused a transfer simply because the entity that will hold them does not have the money needed for transportation and to accommodate them in a correctional centre.
Like the firearms program, we believe that the federal government must make a clear funding commitment that is appropriate, so that Quebec and the provinces can act accordingly when it comes to carrying out transfers.
Not only does the presumption that we are denouncing not meet the requirements of fundamental justice, it has negative consequences when it comes to reintegration. Clearly all legislative provisions from now on must respect the requirements of the charter, both in their implementation and in setting goals.
We must not wait for the courts to correct this glaring shortcoming. The decision must be a legislative one, and it is up to us as parliamentarians to rectify the situation before it gets any worse. This is one aspect of the issue that we can discuss in more detail in committee.
The bill proposes substantial amendments to current legislation in that it clearly states in clause 3 that the first objective is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.
Bill C-33 then lists the conditions of application and mechanisms of application for this worthwhile objective.
I have had occasion to handle requests from constituents in connection with this purely administrative operation. In each case, the motivation behind their requests was humanitarian, health-related, or harsh conditions of detention.
The fact that this bill is directed towards facilitating of this administrative procedure is totally desirable and the Bloc Quebecois will be supporting the guiding principle. I must reiterate that we plan to study this bill thoroughly in order to make the essential adjustments to bring it in line with charter requirements, in compliance with the recent Quebec Appeal Court opinion.
Clauses 4 and 5 list the criteria for eligibility to make a request for transfer.
We feel the consent requirement set out in clause 8 is essential to the smooth operation of this procedure if it is to respect the principles of fundamental justice.
It is clearly stipulated that the transfer requires the consent of the foreign entity, Canada and the offender. Clause 9 sets out the rules governing the consent of Quebec and the provinces. It is specifically stated that consent must be given before any transfer for which Quebec and the provinces will be responsible.
I am returning to the necessity of having sufficient financial and human resources to make this transfer procedure efficient and timely. We will be addressing this in committee but we hope the minister responsible will commit to eliminating that uncertainty before long.
The assessment criteria are set out in clause 10 of Bill C-33. It is up to the minister to assess the factors related to the transfer. The primary one is whether the offender's return would constitute a threat to the security of Canada. The minister will also take into consideration the offender's intentions of residence, and finally whether family ties are sufficiently strong to warrant granting the request for transfer.
If a foreigner has been found guilty of an offence in Canada, the minister must also take into account the likelihood of the offender's subsequently committing acts of terrorism.
Subclauses 3 and 4 of this clause address factors relating to assessing requests from young offenders.
Clause 11 stipulates that consent or refusal of consent must be justified. The minister is responsible, under clause 12, for ensuring that the consent was given voluntarily.
Clauses 13 to 15 deal with the continued enforcement of offenders' sentences, with the purpose of complying with the criminal law of foreign countries.
Clause 16 sets out conditions for probation and the related equivalency.
As for clauses 17 to 20, they deal more specifically with the terms and conditions for the transfer of young people. The Bloc Quebecois is of the opinion that special attention ought to be paid to these, as I demonstrated earlier in my presentation. Expert advice can certainly enlighten us, especially in the context of the opinion of the Court of Appeal of Quebec.
The Bloc Quebecois will be vigilant when these clauses are considered at committee stage. We hope the minister responsible will make the necessary changes to ensure these provisions reflect charter requirements.
Clauses 21 to 29 have a more technical and mathematical side, in the sense that they set out the criteria for determining equivalent sentences for Canadian nationals abroad who wish to serve their sentences in Canada.
I am quite amazed that only one clause in this bill addresses humanitarian considerations. I would have liked such considerations to be at the heart of this bill. Once again, I think that at committee we will be able to determine the full scope of this clause.
Clauses 31 to 36 deal with procedures for increasing the number of entities participating in these exchanges. The final clauses amend other acts affected by the bill's provisions.
There is one more aspect that ought to receive our full attention. A number of provisions in the present bill deal with implementation of the transfer procedures in cases where a person has been declared not criminally responsible because of mental disorder.
I took an active part in the work of the Standing Committee on Justice and Human Rights when it studied the Criminal Code provisions respecting such persons. The witnesses made it clear that these persons should receive particular attention in that their cases should be dealt with appropriately, and especially in a timely manner.
I believe that the provisions in the present bill ought to reflect the distinctive character of everything having to do with persons who have been declared not criminally responsible because of mental disorder.
I conclude by repeating our agreement in principle with this bill, especially with respect to the humanitarian motivation behind decisions to make a transfer.
However, I emphasize that the Bloc Quebecois will be closely following the work of the House and the committee, in order to ensure that there will be changes made in the provisions relating to adolescents.
These provisions must satisfy the requirements clearly set out by the Quebec Court of Appeal in its opinion on the reference concerning Bill C-7 on the youth criminal justice system.
As I mentioned earlier, offenders must be returned to Canada when the conditions in prisons in some parts of the planet are examined. These transfers must, therefore, be done in a spirit of close collaboration with the states that are signatories of administrative treaties and agreements.
In closing, I would remind the members that, according to the Quebec Court of Appeal, imposing adult sentencing is not necessary to achieve the purpose of the Youth Criminal Justice Act; for this reason, each provision of Bill C-33 must be carefully reviewed, which the committee will duly undertake to do.
The Bloc Quebecois will represent the interests of Quebeckers and Canadians, and especially the interests of our young people, during consideration in committee of Bill C-33.
We support the humanitarian principle behind this bill, but we have serious reservations about the specific applications of some of its provisions. We believe that the bill's humanitarian objective can be accomplished during consideration in committee, while protecting the rights of all individuals, in particular, obviously, of our young people.