House of Commons Hansard #40 of the 37th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was foreign.


International Transfer of Offenders Act
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12:20 p.m.

Toronto Centre—Rosedale


Bill Graham for the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness

moved that Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, be read the third time and passed.

International Transfer of Offenders Act
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12:20 p.m.



Yvon Charbonneau Parliamentary Secretary to the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness (Emergency Preparedness)

Mr. Speaker, I am pleased to speak today to Bill C-15, the International Transfer of Offenders Act, at third reading stage. After second reading and consideration in committee, this bill has received strong support from all members who have taken part in this debate so far. Now is the time to move on to the third and final stage.

The current Transfer of Offenders Act came into force in 1978, following a United Nations meeting where member states agreed that international transfers were desirable because of increasingly greater mobility and the need for countries to cooperate on criminal justice matters.

Since 1978, only technical amendments have been made to this act. Policy issues relating to international transfers have expanded due to Canada's greater experience with treaties and legislative amendments brought about by the Corrections and Conditional Release Act in 1992, Bill C-41 on sentencing in 1995, and Bill C-45 on sentence calculation reform in 1996.

Bill C-15, which we have before us for third reading, would modernize the legislative framework authorizing the implementation of treaties, including multilateral conventions on the international transfer of offenders. I am particularly proud to sponsor this bill because of its objectives relating to public safety and the humanitarian objectives it will advance.

The purpose of this bill concerning the transfer of offenders and related treaties is essentially humanitarian. Canadian citizens are often imprisoned in countries where they are unfamiliar with the language and culture. Furthermore, it is not unusual for the places where they are held to fall short of even the most rudimentary Canadian standards for health, hygiene and safety. The isolation felt by Canadians in these difficult conditions of detention adds to the hardship they face, especially without regular contact with family and friends. Awareness of these conditions also causes suffering to the offenders' families in Canada.

This legislation has another important goal. It will contribute to protecting Canadian society. For offenders who are serving prison terms outside Canada, rehabilitation may be impossible. Often, the countries where they are imprisoned do not have any treatment programs or parole systems. In addition to this shortfall, there is the lack of direct support by family and friends, which is often the key to reintegrating offenders into society. This lack of programs and support reduces their chances of long term rehabilitation, and this has an impact on public safety. That is why it is so important to be able to repatriate Canadians.

The International Transfer of Offenders Act will also contribute to the administration of justice. Canadian offenders who are returned to Canada must serve their foreign sentences right to the end. When they arrive in Canada, they come under the authority of the Correctional Service of Canada, or a provincial corrections service, which is responsible for their gradual and controlled reintegration into society. This solution is preferable to deporting offenders to Canada at the end of their sentences. If they are deported, they arrive here with no correctional monitoring and no help in reintegrating into society.

Most states recognize the importance of cooperation in criminal justice matters.

The states enforce criminal laws and sentences to dissuade people from committing illegal acts. However, offenders do not escape justice by purging the remainder of their foreign sentence at home. The international transfer of offenders program allows countries to do this.

In its consideration of this legislation, the government consulted 91 private and governmental organizations. These consultations and consideration confirmed the need to clarify and update the current Transfer of Offenders Act, which, as I mentioned, dates back to 1978.

This resulted in proposals to amend the legislation that would reflect traditional international treaty principles, close identified gaps, ensure consistency with other legislative provisions, and improve efficiencies of the transfer of offenders.

For example, Bill C-15 would integrate a clause stipulating that the purpose of this new legislation is to contribute tothe administration of justice, the rehabilitationof offenders and their reintegrationinto the community by enabling them toserve their sentences in the country of whichthey are citizens. This important characteristic would clarify the intended purpose of this legislation. It would contribute to the interpretation of the legislation and to ensure parliamentary endorsement of the approach and policy behind legislation.

The voluntary consent of the offender to his transfer is also a key principle which, in reality, serves as the foundation for Canada's participation in the international transfer of offenders. This notion is based on the traditional humanitarian objectives of treaties. This is a critical notion, because the prospects for an offender's successful rehabilitation and reintegration would likely be compromised if an offender were forced to transfer against his or her will.

Foreign states may also be less inclined to approve a transfer on humanitarian grounds if the offender has not willingly consented. This is why Bill C-15 would reflect this important principle.

To ensure truly informed consent, the bill provides that Canadian authorities must explain to offenders how they would serve their sentence upon their return to Canada. In this context, the bill also provides that Canadian authorities must give to any foreign offender who asks for a transfer to his country of origin information provided by that state and describing how the offender would serve the rest of his sentence in that country.

The current Transfer of Offenders Act does not provide for the transfer of young offenders who are on probation. This omission is not compatible with the provisions of the act. Indeed, the act authorizes the transfer of adult offenders who are on probation, or who are serving a term of imprisonment. Bill C-15 would correct this inconsistency by making young offenders who are on probation eligible for a transfer.

The current Transfer of Offenders Act does not provide for the transfer to Canada of children who may be serving a sentence abroad. Bill C-15 would correct that by authorizing the transfer to Canada of children of Canadian origin who are under 12 years of age and who are being detained abroad. The bill also provides that, following their transfer to Canada, children would not be detained under the terms of their foreign sentence. Instead, they would be covered by the legislation dealing with the well-being of children in the relevant province or territory. This is an illustration of the humanitarian nature of the bill.

These provisions would broaden the scope of the offender transfer system and advance the primary objective of this legislation.

At this time, Canada may enter into a treaty for the transfer of offenders only with recognized foreign states. Recent international events such as the dissolution of the U.S.S.R. and Yugoslavia highlight the need for a transfer mechanism for Canadians serving sentences in jurisdictions not recognized by Canada as foreign states.

In these cases, a considerable amount of time must pass before the jurisdictions are formally recognized as foreign states. Consequently, Canadians incarcerated and serving sentences in these jurisdictions do not have access to the international transfer process when a treaty does not exist between Canada and a foreign state or when one has been negotiated but ratification is still years away.

In all these cases, there may be compelling reasons to return an offender to the home country. That is why Bill C-15, clause 31, which is a major clause in this bill, provides for the negotiation of administrative arrangements with a foreign entity or non recognized state, in order to render the transfer system more sensitive to the international situation. It would allow Canada to transfer its citizens back home under the authority of Correctional Services Canada, which would be responsible for the gradual and controlled reintegration of these offenders into Canadian society.

Most offenders benefit from transfer agreements. Although the number of entities having signed and ratified treaties or conventions on the transfer of offenders is still limited, it is increasing. Serving a sentence in a foreign country adds to the seriousness of the sentence and often denies the offender access to the correctional programs and community support that are essential to his reintegration. It is not in society's best interest for things to continue this way.

The Transfer of Offenders Act and the treaties and conventions implemented by that act have achieved their goal and continue to play an important role in Canada's international relations. Major progress has been achieved in prisoner transfers. Every year, about 85 Canadians are transferred to Canada under a treaty or a multilateral convention for the transfer of offenders. Since 1978, more than 1,000 Canadians have been repatriated and more than 100 foreign offenders transferred to their country of origin. Once again, while these numbers are not large, they will surely increase once this bill is in place.

I would like to highlight the need for more flexible legislation to advance the humanitarian objective Canada has in mind with this bill on the international transfer of offenders. The need for more cooperation between countries as far as criminal justice is concerned is obvious, as is the need to protect the public by reintegrating offenders into society safely and gradually, and with proper monitoring.

Bill C-15 would meet all these needs by reflecting the traditional principles of international treaties, remedying detected shortcomings and ensuring consistency with other legislative measures. This bill would contribute, among other things, to expanding the system to a wider range of offenders and including more entities within the category of those with whom Canada could enter into transfer agreements.

For all these reasons, I urge hon. members to support Bill C-15 at third reading.

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12:35 p.m.

Canadian Alliance

Kevin Sorenson Crowfoot, AB

Mr. Speaker, I rise today to debate Bill C-15, amendments to the transfer of offenders act. This legislation was first introduced as Bill C-33 in the last Parliament and was debated almost a year ago.

In fact, I stood in the House on April 29, 2003, condemning the Liberal government because it came forward and provided less than 24 hours between the time we received a copy of the bill and had a first chance to look at the legislation and the time we were asked to first stand and debate the bill. It was less than 24 hours later that we were asked to debate the bill.

I said that the government's move to force debate was “indicative of its inconsideration” for Parliament and of its “disrespect” for Parliament and also for the opposition. It was totally inconsiderate of the government to provide so little time for us to digest the content of this legislation before initiating debate. In my mind, the only rationale for such inconsideration and such an irresponsible move was that the government was devoid of any other meaningful legislation. In other words, I said then, the government's agenda was “empty”.

Now, a year later, the agenda remains that way because this government has yet to seek a mandate to govern. Quite obviously the government is in neutral, or worse, it is coasting backwards. It is losing ground. Nothing has changed since April 2003, when the Prime Minister, then only a leadership hopeful, said:

But in recent times a kind of complacency--a certain amount of drift--has set in. We've lost some of the energy and enthusiasm that Canadians are looking for.

He was talking about Parliament. The member for LaSalle--Émard, now the Prime Minister, after months of silence on his government's agenda and his own plans for moving the country forward, at that time was chronicling his predecessor's lack of achievement and inaction.

Pointing toward Ottawa's strained relationship with the United States administration over the war in Iraq, the lack of focus on the waiting lists in the health care system, and the outbreak of SARS, the member for LaSalle—Émard said that these areas required immediate attention.

Well, Mr. Speaker, this Prime Minister has now been the Prime Minister for over four months and he has not moved the agenda forward at all. We are still in limbo because, again, this Prime Minister does not have a mandate to govern.

With regard to the legislation before us today, Bill C-15 repeals and replaces the old Transfer of Offenders Act to expedite the transfer of Canadian citizens serving sentences in penal institutions abroad from those institutions to penal institutions in this country. It also provides for the expedited transfer of foreigners serving sentences in Canada to their home countries.

Bill C-15, in my opinion, is nothing more than a reaffirmation that public safety and the rights of the victims are not priorities at all with the government. Bill C-15 is but one more attempt by the government to tip the scales of justice in favour of the offenders.

Clause 3 of Bill C-15 states:

The purpose of this Act 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.

In a press release on Bill C-33, the former solicitor general stated that the Transfer of Offenders Act was more than 20 years old and only authorized the transfer of offenders between Canada and recognized states. Furthermore, he stated:

...this bill is significant from a humanitarian perspective. Conditions of confinement in some countries impose severe hardships on Canadians.

If Bill C-15 were about humanitarian efforts, if it were to ensure that Canadians would not be subjected to inhumane treatment, we would support the bill. We would support it because the fundamental principle within our justice system is the right to a fair trial and the right to humane treatment. However, as members will note, even if we look at the summary of Bill C-15, that is not what this is about.

If we look at the purpose and principle section of Bill C-15, the legislation is not about humanitarian efforts. This legislation is not only about allowing Canadian citizens who commit crimes in other countries to serve their sentences in more humane prisons, it is about bringing them home and, in some cases, putting them in prisons that are club fed types of institutions, resorts. It is about reducing the sentence imposed by another country.

Bill C-15 sets an alarming precedent in its attempt to impose the norms of the Canadian criminal justice system upon crimes committed and adjudicated somewhere else.

Clause 14 reads:

Subject to subsection 17(1) and section 18, if, at the time the Minister receives a request for the transfer of a Canadian offender, the sentence imposed by the foreign entity is longer than the maximum sentence provided for in Canadian law for the equivalent offence, the Canadian offender is to serve only the shorter sentence.

This is because under clause 13 it states:

The enforcement of a Canadian offender's sentence is to be continued in accordance with the laws of Canada as if the offender had been convicted and their sentence imposed by a court in Canada.

In essence what we have here is that a Canadian citizen could go to another country, commit a crime for which there would be a much more substantial penalty, and be transferred home to serve a lesser sentence. What this could amount to is immunity of Canadian citizens. In my opinion, that is wrong. It flies in the face of recent Supreme Court of Canada jurisprudence.

In Kindler v Canada, Justice McLachlin, writing for the majority, observed:

The simple fact is that if we were to insist on strict conformity with our own [criminal justice] system, there would be virtually no state in the world with which we could reciprocate. Canada...would be the loser.

Furthermore, in the United States v Burns, the Supreme Court of Canada made the following observation:

A competing principle of fundamental justice is that Canadians who are accused of crimes in [a foreign jurisdiction] can ordinarily expect to be dealt with under the law which the citizens of that jurisdiction have collectively determined to apply to offences committed within their territory, including the set punishment.

I agree that if a Canadian citizen commits a crime in another country, that person should pay the price--

International Transfer of Offenders Act
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12:45 p.m.

The Acting Speaker (Ms. Guay)

The hon. member for Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans on a point of order.

International Transfer of Offenders Act
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12:45 p.m.


Michel Guimond Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC

Madam Speaker, I apologize for interrupting my colleague from the Conservative Party of Canada, but I would like you to verify whether we have quorum.

And the count having been taken:

International Transfer of Offenders Act
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12:45 p.m.

The Acting Speaker (Ms. Guay)

We have quorum now. Resuming debate. The hon. member for Crowfoot.

International Transfer of Offenders Act
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12:45 p.m.

Canadian Alliance

Kevin Sorenson Crowfoot, AB

Madam Speaker, I agree that if a Canadian citizen commits a crime in another country he or she should pay the price imposed by that country and not by this country, a country that is well-known under this government for its bleeding heart approach to justice.

The former solicitor general's press release also stated that “society is best protected when offenders participate in correction programs in Canadian institutions and communities and when their release is supervised”.

I disagree. Society is best protected when offenders spend an adequate period of time incarcerated to prevent others from being harmed and for allowing rehabilitation to effectively occur.

The government is not concerned or interested in preventing Canadians from being harmed. It is not interested in putting in place adequate penalties that act as deterrents. It is not interested in restitution being made to victims.

The Liberal government is only concerned about treating offenders as poor, misguided persons who are somehow not responsible for the crimes regardless of how heinous or how terrible those crimes have been and how many victims they have left scarred, sometimes for life.

On the subject of victims I must point out that under clause 8 of Bill C-15 the consent of three parties is required for a transfer: the consent of the offender, the consent of the foreign country or entity and the consent of Canada. Nowhere in the bill do we see that the consent of the victim is required. In other words, if a child is raped in this country and a foreign entity requests the transfer of the offender, the victim and the victim's family have absolutely no say in the transfer and, therefore, no say in the parole assessment and decision, and they are not apprised of when the offender is released in the foreign country. I see no provisions for this in Bill C-15.

In 2003 the Department of Justice introduced the Canadian statement of basic principles of justice for victims of crime in which it states that the need for victims should be taken into account in the criminal justice system. Consequently, these needs should be taken into account in the decision of whether a transfer is or is not warranted.

Subclause 10(4), in reference to young offenders being transferred, clearly states:

In determining whether to consent to the transfer of a Canadian offender who is a child within the meaning of the Youth Criminal Justice Act, the primary consideration of the Minister and the relevant provincial authority is to be the best interests of the child.

In other words, if a 17 year old goes to a foreign country and rapes an 11 year old, for which the punishment in that country may be fairly substantial, the person would be transferred here and given the maximum of three years. What about the 11 year old victim? What is in the best interest of this victim? What is in the best interest of closure for the victim and closure for the victim's family? What is in the best interest of society or the best interest of our children who may become the next victim of this offender? Where is the consideration for public safety?

In closing I would like to point out another aspect of the bill that is, in my opinion, in question, and that is clause 38, transitional provision, which reads:

This Act applies in respect of all requests for transfer that are pending on the day that this section comes into force.

In other words, the bill would become retroactive. We will push the bill through and make it retroactive to effectively deal with all of those who are facing this kind of incarceration in other countries at the present time.

Why is it that when an act favours the offender, the one who has committed the crime, that it can be retroactive but when retroactivity does not favour the offender, such as in the sex offender registry or the DNA data bank, it is not retroactive?

We can draw some very conclusive reasons. The government is more concerned about the rights of the offender than it is about the victim. It is more concerned about the offender, the one who has caused sorrow and pain, than it is about the one whose family has been victimized.

We cannot support the bill for those reasons. It is unjustly unbalanced in favour of the offender over the victims and over the protection of society.

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12:55 p.m.


Michel Guimond Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC

Mr. Speaker, I am pleased to speak to Bill C-15, which, the House will recall, was introduced by the former solicitor general, the current member for Malpeque, on April 28, 2003. The purpose of the bill at that time was to replace the old Transfer of Offenders Act. The Transfer of Offenders Act has been in effect for over 20 years.

I would like to say as I begin that the Bloc Quebecois will oppose this bill. I shall explain the reasons. We must admit, however, that there are certain elements in the principles of the bill with which we agree. I will talk about them after I have listed the main reasons that we cannot support the bill. In short, the Bloc Quebecois will oppose it.

We know that the bill proposes substantial amendments to the current act; in section 3, it clearly states that the primary purpose of this act 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 Canada or in their country of origin. Later provisions of Bill C-15 set out the conditions and procedures used to achieve this purpose.

The fact that this bill is directed towards facilitating this administrative procedure is totally desirable and the Bloc Quebecois will be supporting the guiding principle.

In brief explanation of what this bill contains, I will say that clauses 4 and 5 list the criteria for eligibility to make a request for transfer.

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.

Once again the Bloc Quebecois, which regularly reaffirms Quebec's jurisdiction in a number of areas and which condemns federal interference in those jurisdictions, agrees with this section that consent will be required before any transfers to Quebec can take place.

The assessment criteria are set out in clause 10 of Bill C-15. As stated in this clause, it is up to the minister to assess the factors related to the transfer. It is also a matter of 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. In light of the events of September 11, 2001, the whole notion of whether an offender is likely to subsequently commit acts of terrorism becomes important.

Paragraphs 3 and 4 of this clause address factors relating to assessing requests from young offenders. Clause 11 stipulates that requests must be in writing and refusals must be justified.

Clause 12 of Bill C-15 would make verification of the offender's consent the minister's responsibility.

Clauses 13 to 15 deal with the continued enforcement of offenders' sentences, with the purpose of complying with the criminal law of foreign countries, a principle with which we agree. The rule of law must be upheld.

Clause 16 sets out conditions for probation and the related equivalency.

As for clauses 17 to 20, they deal 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 clauses. Expert advice could certainly enlighten us, especially in the context of the opinion of the Court of Appeal of Quebec. That is the position of my party.

I thank my colleague, the member for Saint-Hyacinthe—Bagot, for giving me the opportunity to speak to this important bill. The member for Saint-Hyacinthe—Bagot, who is a public safety critic, had the opportunity to say—and he will also have the opportunity to repeat—that the Bloc Quebecois is against Bill C-15. I will explain why.

We cannot be in favour of this bill since, despite the recent opinion of the Court of Appeal of Quebec in the Government of Quebec's order regarding the reference concerning Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other acts, the federal government decided to go ahead and impose adult sentences on young persons.

In the context of this debate on Bill C-7, I would like to take the opportunity in this House to acknowledge the work the Bloc Quebecois has done on the bill and to remind hon. members of the work of our former colleague and Bloc Quebecois member for Berthier—Montcalm, who literally went crusading to every corner of Quebec, where Quebeckers reaffirmed his opposition to the treatment of young offenders.

The Quebec Appeal Court ruled that the provision in Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other Acts which established that adult sentences could be imposed on young offenders aged 14 and over, rather than 16 and over, for serious crimes, contravened the Canadian Charter of Rights and Freedoms. The court ruled that this provision violated section 7 of the Charter, by requiring the young offender to prove he should not be sentenced as an adult.

Hon. members will understand the importance of what is termed in law the burden of proof. The burden of proof is on the young person to convince the court why he ought not to be sentenced as an adult. The Quebec appeal court judges found that this presumption constitutes a breach of the rights, freedom and psychological welfare of young offenders and does not conform to the principles of fundamental justice.

Bill C-15 provides that young offenders aged between 14 and 17 transferred to Canada will automatically be deemed to be serving an adult sentence, as defined in the Youth Criminal Justice Act, if their sentence is longer than the maximum youth sentence that could have been imposed in Canada.

This is where we have a problem. We in the Bloc Quebecois feel this clause contravenes the very principles set out by the Quebec appeal court and thus violates section 7 of the Charter.

In conclusion, the Bloc Quebecois will be unable to support Bill C-15, which includes provisions that are in contravention of the Charter and impact negatively on young offenders' rights.

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1:05 p.m.



Larry Bagnell Parliamentary Secretary to the Minister of Indian Affairs and Northern Development

Mr. Speaker, in recognition of National Volunteer Week I want to congratulate the thousands of volunteers in my riding of Yukon for all their help.

The second previous speaker in this debate suggested that the government had no agenda with regard to Bill C-15. It is fairly ironic that party would suggest such. The reality is that party has no agenda. That is why those members are frightened to go to an election.

Since we came back after Christmas, those members have had very few questions with regard to taxes, debt, foreign aid, or social programs. They have had few questions with regard to helping businesses. They have had few questions with regard to anything.

That party has no agenda. The media is finally realizing that the king has no clothes. The Conservative Party has no platform or policies. When we ask the ex-progressive conservatives to name one single policy that the new combined party has adopted, they cannot name one. They have the old polices of the Alliance. Because no one can agree, how can they put a policy program forward to the public? I sympathize with the difficult problem they will have in coming up any kind of policy. I am sure they will not have any questions in question period and will keep trying to avoid an election until they come up with some kind of policy.

The throne speech contained very vibrant policy. Once again they could not ask questions about it in question period or criticize it because it was popular. There was a whole section on social programs for aboriginal people. There were three different initiatives included for disabled people. Early childhood education was also included in the throne speech. Also included was the broad theme of the new economy in the modern world which included initiatives in learning, skills, and innovation.

The third broad topic on the agenda that those members say we do not have is increasing Canada's place in the world. This includes increasing our foreign aid and our role in both Afghanistan and Haiti.

There is also the important new bill regarding Africa. Canada is the first country in the world to deal with the tricky regulations and patents of multinational drug firms, which will make it possible for people with disease in Africa to receive more relief than they otherwise would. Other countries agree that Canada has taken a leading role in the world. We received feedback from people in my riding and from other ridings about that bill and made important amendments to it to ensure that it would work and be effective.

With regard to environmental contamination, the government has included a contaminated sites bill, which will involve the biggest expenditure in the history of Canada. How can those members say the government has no agenda?

The government included in the Speech from the Throne very creative initiatives relating to the voluntary sector. We have added to our research agenda. We have provided a new deal for communities by giving them relief from the GST. We have formed new partnerships, not only with municipalities, but with the aboriginal people, as members saw on Monday with the historic meeting with aboriginal people.

I do not think the Conservative Party should suggest that the government does not have an agenda when it has been unable to demonstrate in question period all year that it has one. It has been unable to demonstrate that it has anything new from the old Alliance party. We would appreciate it if those members would refrain from making such ironic and inaccurate statements.

We are debating the transfer of offenders act today. In fact we have debated a number of acts all week so I do not know how the Conservative Party can say that we have no agenda. The House has been full. We debated the Westbank self-government agreement. We debated the Tlicho land claim and self-government agreement. We debated a number of smaller bills in between. Today, there are four or five bills waiting. The financial institutions act is waiting for discussion.

I do not know where those members could possibly have dreamt up the idea that the government has no agenda. If they would be a little more cooperative, we could get a lot farther in our agenda. If they would like to challenge that statement, I could tell them the number of times they have used obstructionist methods since Christmas which have actually delayed our agenda. They obstructed good bills which would help Canadians and wasted several days of Canadians' time by delaying them. I will not go into more of these until they challenge that assertion.

On the Transfer of Offenders Act, this act provides for the implementation of treaties with other countries for the international transfer of offenders. The purpose of the act and the treaty signed between Canada and foreign states is essentially humanitarian. It allows for Canadians convicted and detained abroad under difficult conditions to serve their sentences at home, and for foreign nationals to return to their home countries.

The Transfer of Offenders Act serves public protection purposes. It allows offenders to serve their sentences in Canada and to be gradually released into the community. Otherwise, they would simply be deported at the end of their sentences.

For Canadians, primarily their highest priority is not revenge, it is rehabilitation. What they would like to see is that they will be safe in the future, and that the person will no longer reoffend. We obviously do not have all the answers yet because of the high rates of recidivism. It involves a very thought out process in the treatment of offenders, reintroducing them into various stages of society, halfway houses, and training to ensure that it is not a huge, impossible leap back into society. We want them to integrate slowly and effectively, under more and more reduced supervision, so that we can protect Canadians and ensure that they are safe when they ultimately have their total freedom.

That would not happen without the Transfer of Offenders Act. What would happen is that the person convicted of a serious crime in another country would serve whatever the length of the sentence was in that country. A number of countries do not have any rehabilitation programs, education programs, or reintegration into society programs because the offenders are not even of the society into which they are going to have to reintegrate. They would be dumped back into Canada the day they got out of prison as hardened offenders. Then, we would all be at risk.

By allowing Canadians to be transferred back, they can go through our system. We can help them out through training programs that are relevant in Canada, in social support, in anger management training, in interpersonal relationship training, and all the programs that they would need to successfully reintegrate into society.

Then they can go into partial reintegration with probation, with halfway houses or whatever the system feels would be most effective to ensure that under partial supervision they could slowly integrate under careful, watchful eyes, and take remediation steps. This way Canadians will be safe. That is one of the advantages of the Transfer of Offenders Act.

This act is in place today, but we are talking about some amendments. There have been no major amendments since its proclamation in 1978. Only technical amendments have been made to it, and substantive issues were identified. We did some consultation, and through those consultations these issues were documented. We put out a consultation document in 1997. There was then a comprehensive review which revealed that the Transfer of Offenders Act was in need of modernization and clarification.

The consultation was fairly broad. There were 91 private sector and government agencies consulted. Overall, the majority of the agencies responded to the consultation document, reacted favourably to the consultation questions, and expressed support for the proposals set out in the document.

I want to outline what some of these proposals were. To make it easier to understand for people watching at home who may have just tuned in, I am going to break them down into different categories so they are easier to follow.

The first category contains proposals that reflect the traditional treaty principles in order to broaden the act out and have a better description of those principles of the treaty that it is meant to fulfill. We are going to incorporate a purpose clause and principles, such as non-aggravation of sentence, dual criminality, adaption and continued enforcement that support the legislation's purpose.

The second thing we are going to do is add a new information sharing requirement. The person designated by the minister and the authority responsible in the province or territory for the administration of prisons would have the duty to inform a foreign citizen under its jurisdiction of the existence and substance of an international transfer treaty between Canada and the country of that person's citizenship.

We can understand how people would feel in a foreign country where they did not understand the language. In some countries people would probably be treated very badly after having committed a crime. Some countries do not have full human rights, where one would have no idea of the jurisprudence. That is difficult even in Canada, if one is not a lawyer, but imagine how difficult it would be for someone to understand the laws of another country if for some reason a person ended up, rightly or wrongly, in one of their jails.

Under those circumstances, how would people know what their rights are? How would one know, especially a first time offender who has no experience with the legal system, that there is an international transfer treaty?

We have to guarantee Canadian citizens their rights so that they know that such a treaty exists. We must put that into the law so that they have those rights and it is mandatory that they be informed of their rights.

Canada has the highest standards of human rights. We want to ensure that all our officials in those prisons and institutions are aware of the treaty and of their obligations to tell the prisoners who are residing temporarily in our institutions of their right to be transferred home so that they can start their healing, reparations, reintegration, and move toward being a safe citizens back in their own country.

The next category of amendments is related to new provisions regarding the consent to transfer. For example, foreign offenders in Canada could withdraw their consent to the transfer at any time before the transfer takes place.

Perhaps foreign offenders, for whatever reason, may determine that they would be in danger and may not understand the full consequences of being transferred, but for whatever reason, they would have the right to not have to take that transfer, up to the time when the transfer is made.

The next category of gaps in the Transfer of Offenders Act is a set of proposals to ensure consistency with other legislative provisions. These are more housekeeping tools to ensure the legislation fits in with other legislation.

These proposals would include provisions for the transfer to Canada of young offenders who are on probation, children under the age of 12 years, and the transfer of mentally disordered offenders.

It would add provisions requiring explicit provincial consent for the transfer of Canadian and foreign nationals who are under probation, provincial parole, provincial temporary absence, conditional sentence or intermittent sentence.

As our esteemed colleagues from the Bloc pointed out, it is very important that when there are services that are under provincial jurisdiction, the province should have to provide its consent if it is going to have new costs, new customers, new inmates, or people it has to place on parole or probation throughout its system. This would include all the accompanying remedial activities that could occur which we talked about earlier in this debate.

The third item under this category of consistency provisions will be to incorporate a provision requiring that offenders be informed of the minister's reason for not consenting to a transfer.

Therefore, if prisoners ask for a transfer and it is denied, they will feel they were denied their human rights. They could feel they were segregated for one reason or another. They need to know why the transfer was denied. Of course, there may be legitimate reasons. There could easily be legitimate reasons why one country would not allow the transfer of an offender, either out or into its country. However, the offender has every right to know what those reasons are. One cannot stand accused of a crime or accused of something, or denied a right without being told why this right is being denied.

The fourth provision is under the block of revisions that are to ensure consistency with other legislative provisions. They are provisions to clarify the sentence calculation rules and align the Transfer of Offenders Act with the Criminal Code, the Corrections and Conditional Release Act and other legislation, such as the Youth Criminal Justice Act. In more recent times, some of these acts have been amended, so we have to make the clarification to ensure that the Transfer of Offenders Act matches the other acts in the system.

The fifth item under this group of identified gaps is to ensure consistency with other legislation. It involves adding a new provision to reflect the legal requirement that Canada must take appropriate action upon being advised by a foreign state that it has taken compassionate measures in respect of an offender's conviction or sentence, such as setting aside the conviction or reducing the sentence.

The sixth item under this category of ensuring consistency with other legislative provisions is to incorporate a new provision that would ensure that unless the court declares the transfer of an offender invalid because he or she is not a Canadian citizen, the sentence would be enforceable in Canada. Also, where the transfer is declared invalid, the minister would notify the Minister of Justice for possible extradition and the Minister of Citizenship and Immigration for possible removal of the offender from Canada.

The seventh proposal in closing the identified gaps of the Transfer of Offenders Act and ensuring consistency with other legislative provisions would be to include the considerations for transfer, which are currently set out in the regulations, into the act. This would give more permanency and make it much harder to change. It could not be changed as easily and would give more certainty to those involved.

The last set of proposals that would improve efficiencies include the following. It would remove the reference to schedule and the schedule from the Transfer of Offenders Act. The item is a technical amendment. It would add provisions to allow for administrative arrangements for the international transfer of mentally disordered persons and offenders detained in countries or regions that are not recognized as states, such as Taiwan, Hong Kong or states with which a treaty is not in force.

There are many communities around the world, such as Taiwan and Hong Kong that Canada, although it does not have official formal relationships, with which Canada has excellent diplomatic relationships. We have excellent trade. We have friendships. We have many relatives and immigrant families that have come from those parts of the world and they have close interaction with Canadians and our culture. It is one of the things that makes Canada so exciting and culturally diverse.

There is a lot of interaction among these communities in the world. Because of that, of course, these provisions, which apply to the countries with which we have treaties and other countries of the world that have this legislation, should also apply to these areas where we have a very large amount of interaction, of flow, of interpersonal family connections and friends. Just for efficiency, we would want those provisions of the act to apply.

In summary, I would like to say that looking at this act and making sure that it works well is in the interests of everyone, so that primarily offenders get back to society with the best and safest conditions possible for those other people in society.

International Transfer of Offenders Act
Government Orders

1:25 p.m.


Michel Guimond Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC

Mr. Speaker, I have followed the speech by the hon. member for Yukon attentively. One point struck me particularly. He commented that he found it inconceivable that the opposition members were doing everything possible to slow up passage of a bill like this and implied that we did the same with most bills.

I would like the hon. member for Yukon to explain to us the events of the past three days in this House. We saw the same thing with two bills. I am sure there is a sizeable aboriginal community in Yukon, so I would like to hear his explanation of why the Liberal members literally carried out a filibuster on those two bills, C-11 and C-21. Systematically, these past three days, no one but Liberals spoke, and we in opposition had nothing more to say on those bills, C-11 and C-12. So, is it the opposition who is slowing things down?

I will give the answer myself. This government has a very slim agenda. It has nothing to say, and does everything possible to slow down the few bills we do have before us. I would like to hear his response to that.

International Transfer of Offenders Act
Government Orders

1:25 p.m.


Larry Bagnell Yukon, YT

Mr. Speaker, I am terribly disappointed in the Bloc member. When we want to have aboriginal people speak on our bills, they say we are filibustering. They had their chance to speak to those bills. If they have no interest and do not want to speak to them, that is their problem. Of the last three speakers on the Westbank First Nation, our two aboriginal members and I were refuting problems brought up not by the Bloc members but by the opposition. I am sure that if there are injustices put forward in a bill the Bloc would want the members of the House to hear about that.

I am very disappointed that they would deny our aboriginal people the chance to put their views on bills relating to aboriginal people. There are not that many aboriginal people in the House and they at least should have a chance to speak to those bills.

Also, if problems with bills are brought up, they should not be left without answers A number of solutions were put forward in a very constructive way because people brought forward objections and complaints, but we cannot leave these complaints unanswered for the permanent record on the bill.

They are talking about the legislation we do not have, but I ask them to look at today's order paper. I would be delighted to get through it, but I do not think we are going to get through all the bills, even those on today's order paper. There is a lot of legislation. This comment is not actually levelled at the Bloc members because they did not make the original comment that related to legislation and the lack of legislation. All my complaints were directed at the Conservatives, but if the Bloc wants to be brought into it now, the Bloc was part of that--

International Transfer of Offenders Act
Government Orders

1:30 p.m.

The Deputy Speaker

Whether it gets into it or out of it, let me proceed. It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from February 23 consideration of the motion that Bill C-471, an act to amend the Criminal Code and the Corrections and Conditional Release Act (sexual assault on child--dangerous offenders), be read the second time and referred to a committee.

Criminal Code
Private Members' Business

April 23rd, 2004 / 1:30 p.m.

Vancouver Centre


Hedy Fry Parliamentary Secretary to the Minister of Citizenship and Immigration

Mr. Speaker, I rise today to speak against Bill C-471 regarding dangerous offender designations for repeat sexual offenders against children. This bill proposes to impose mandatory dangerous offender designations against any offender who can be shown to have had a previous conviction for a predicate sexual offence against a child.

My colleagues who spoke on this matter a few months ago have indicated that this particular provision poses a serious problem from a constitutional point of view. I also note that some members opposite have argued that there is no constitutional problem, as the provision allows for the respondent to rebut the presumption that he or she should otherwise be designated a dangerous offender.

While this is an attempt to respond to the obvious charter issues this provision raises, I cannot agree that it in fact overcomes those specific issues cited by the Supreme Court of Canada in the leading cases of R. v. Lyons and R. v. Johnson.

These cases discussed the ability of the Crown to impose an indeterminate prison sentence while remaining within our Constitution. Our Constitution has entrenched in it fundamental principles of justice. The court made it clear that if the Crown seeks to impose an indeterminate sentence in order to protect society in addition to the regular sentence available for the specific crime the accused is convicted of, then certain principles had to be followed.

In the first place, the burden must be on the Crown to prove that the individual before the courts is in fact a clear danger to commit a violent offence. Second, if that burden is met within the specific requirements of the dangerous offender provisions, the Crown must also meet the burden of demonstrating that the particular risk posed to society by that particular offender cannot be managed by any other method available, in particular the new long term offender designation in section 753.1.

In effect, the Supreme Court of Canada has established that if the Crown is unable to satisfy the sentencing court on the evidence that the risk of serious re-offence cannot be managed by the less onerous long term offender designation, then the dangerous offender application cannot succeed.

Finally, the Supreme Court stipulated that even if the Crown meets those burdens, the sentencing judge must retain discretion to refuse to permanently jail the offender. Without this discretion, indeterminate incarceration is simply not viable under our charter of rights.

If we look at the bill, we see that it is inconsistent with these clear principles laid down by the Supreme Court in Lyons and Johnson. The proposal in Bill C-471 requires a judge to impose the dangerous offender designation. There is no discretion. The bill says “shall,” not “may”. The provision that the judge can refuse the application if the offender satisfies a reverse onus is almost certainly not adequate in this regard. As I see it, this proposal does not meet the principles enunciated by the Supreme Court of Canada in Lyons and Johnson.

The objective of the bill is not only to automatically jail indefinitely anyone convicted for a second time of specific sexual offences against a child under the age of 18, but to also make it much more difficult for such offenders to be granted parole.

However, this is already so. Under the current provisions of Part XXIV of the Criminal Code, an offender who is designated a dangerous offender is not entitled to a parole hearing until the seventh year of incarceration. This position was significantly toughened by our government in 1997.

Before that, dangerous offenders could apply for parole after only three years. It is now seven years. The reason for the change was, among other things, to prevent the inconsistency in parole applications between someone sentenced to a 10 year imprisonment for the same offences but who was not designated as a dangerous offender.

Bill C-471 seeks to establish a very specific set of criteria for a very specific group of dangerous offenders. Under the proposal, the National Parole Board would have one set of statutory rules for current dangerous offenders and another set for this particular group of sex offenders.

The National Parole Board is an independent administrative tribunal with a legislative mandate under the Corrections and Conditional Release Act. To make decisions about the timing and conditions of release of offenders into the community, board members are required to make decisions in regard to the specific factual circumstances of the individual case, guided by the law, policies and Canadian court precedents in coming to their decisions.

There are a number of principles in the Corrections and Conditional Release Act that direct the work of the Parole Board.

The paramount principle, in considering a parole case, is the protection of society. In doing their case by case analysis, board members are required,by law to take into consideration all available information that is relevant to the case.

Therefore, the National Parole Board currently has in place a policy that dictates that at least one sessional assessment by psychologists and psychiatrists is required for all dangerous offender parole applications. Such assessments provide critical information about the mental state of an offender and other characteristics and factors that may raise the risk of reoffending. Therefore, the psychological assessment that Bill C-471 asks for already occurs.

The member for Crowfoot is asking for more than one assessment. I am not sure why. There is no doubt that an assessment is an important piece of the puzzle in parole applications for dangerous offenders, but it is certainly not the only piece. An assessment is only one element of the comprehensive analysis that board members must, by law, undertake in reviewing each case.

As I mentioned above, the current system ensures that public safety is paramount in all cases, including dangerous offender cases. However, by putting an overly important and restrictive emphasis on the psychological assessment alone, I believe a dangerous precedent could be set, and the National Parole Board may feel compelled to release an offender if the assessments indicate any chance of success in the community, even though there may be other factors that dictate against release.

I believe it is critical that the National Parole Board remains an independent administrative tribunal operating at arm's length from the Government of Canada. The legal authority within which the National Parole Board operates is clearly set out in statutes, including the Constitution Act, the Canadian Charter of Rights and Freedoms, the Criminal Code of Canada, the Corrections and Conditional Release Act and its regulations and other legislation.

In making quality decisions regarding conditional releases and pardons as well as recommendations in clemency cases, the board's primary objective is the long term protection of society. The National Parole Board's mandate ultimately requires that public safety can best be achieved by timely and supervised conditional release and through the effective administration of sentences. However, while the board is autonomous and independent, it is also accountable for its actions to Parliament and ultimately to all Canadians.

The board is headed by a chairperson who reports to Parliament, through the Minister of Public Safety and Emergency Preparedness. The minister does not and should not give direction to the board in the exercise of its decision making powers regarding the conditional release of individual offenders. It would be the same as the Minister of Justice dictating to judges who is guilty and who is innocent and how sentences should apply, and that is absolutely unacceptable.

The independence of the National Parole Board helps to ensure the impartiality, objectivity and integrity of the parole decision making process. There is no political interference in decision making in individual cases and there should not be. It seems to me that the restriction being proposed regarding conditional release for dangerous offenders in Bill C-471 would unnecessarily fetter the case by case discretion which the board now uses to make decisions.

The Parole Board, under current law, cannot release dangerous offenders unless they can determine that they do not pose an undue risk to society. In the rare cases when dangerous offenders are granted parole, they are subject to intensive supervision for the rest of their lives. The fact is that a very few dangerous offenders are paroled and in the vast majority of cases, only when they are quite elderly. In the rare cases where these offenders are paroled, they are subjected to rigorous reporting and supervision conditions for the remainder of their lives.

In summary, I do not believe these amendments to the Criminal Code would be constitutional. Nor do I believe that the amendments in Bill C-471 would be effective in enhancing the protection of children. As such, I respectfully decline to support the bill.

Criminal Code
Private Members' Business

1:40 p.m.

The Deputy Speaker

Taking note that no other member is rising, I will give the floor to the member under whose name the bill stands. Under right of reply, I will give him the final minutes which are left.