Madam Speaker, today I rise to share my thoughts on Bill C-5, An Act to amend the International Transfer of Offenders Act, with my colleagues.
I want to begin by stating that my deepest desire is to see an environment that promotes safety everywhere in Canada so that all Canadians can be safe no matter where they are.
There are many ways to achieve that goal. Today we are debating one of those ways.
Bill C-5 would amend the International Transfer of Offenders Act. This bill would enable the government to request the transfer of Canadian prisoners serving sentences in countries other than Canada.
Bill C-5 is part of the Conservative government's extreme law and order agenda. The militant western Conservative base strongly supports this vision.
Make no mistake about it, this bill is an opportunistic attempt to garner votes. It seeks not only to protect Canadians, but also to get the law-and-order Conservatives re-elected at any cost.
According to the bill summary, one purpose of the bill is to enhance public safety. Clause 3 adds another objective to the Act:
The purpose of this Act is to enhance public safety and 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.
I think that if we add this new objective and give the minister discretionary powers with respect to factors he may take into consideration, the minister will be able to use public safety as grounds to deny as many requests for the transfer of Canadians incarcerated abroad as possible, thereby undermining all of the other objectives of the Act.
I will attempt to show that this bill will weaken public safety, not enhance it. Prior to this, the notion of public safety was, in practice, limited to terrorist threats and threats of war against Canada or against the general population.
In a Federal Court case, Getkate v. Canada (Minister of Public Safety and Emergency Preparedness), the judge had this to say about public safety:
—the Court also finds that there is no evidence on the record demonstrating that the applicant constitutes a potential threat to the safety of Canadians or the security of Canada. While the minister attempts to invoke the section as a means of demonstrating that the applicant poses a general threat to Canadians should he be returned to Canada, use of the phrase “threat to the security of Canada” has traditionally been limited in other legislation to threats of general terrorism and warfare against Canada or threats to the security of Canadians en masse. In the case at bar, while the applicant may pose a general threat to specific pockets of Canadian society should he re-offend, he clearly poses no “threat to the security of Canada” as the term has been interpreted in other legislation, such as the Immigration and Refugee Protection Act...or the Canadian Security Intelligence Services Act.... If the threat to Canada was the mere risk that the offender would re-offend, then such a consideration could be applied to every inmate seeking a transfer.
In this matter, the judge set aside the minister's decision.
Is this bill the minister's way of reacting to the judge's decision in the Getkate case? Is it an attempt to close the door to any judicial control over decisions? It is already very difficult for a judge to set aside a minister's decision.
I am not a legal expert but I know that, to be set aside, a ministerial decision must be found to be “unreasonable”. The burden of proof was very high for the individual and he had little chance of winning.
However, in the Getkate case, the judge set aside the minister's decision, despite all his discretionary power and the substantial burden of proof.
Bill C-5 gives the Minister of Public Safety a great deal of discretionary power and opens the door to abuse of power.
Under the current act, the minister considers four factors in determining whether to consent to the transfer of a Canadian offender. Those factors are: whether the offender's return to Canada would constitute a threat to the security of Canada; whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence; whether the offender has social or family ties in Canada; and whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights.
Bill C-5 gives the minister some very important additional discretionary power. The minister may consider other factors. The bill does not say that the minister does or shall consider these factors, but that he may consider them.
These are the factors added in the bill:
(b) whether, in the Minister’s opinion, the offender’s return to Canada will endanger public safety, including
(i) the safety of any person in Canada who is a victim, as defined in subsection 2(1) of the Corrections and Conditional Release Act, of an offence committed by the offender,
(ii) the safety of any member of the offender’s family, in the case of an offender who has been convicted of an offence against a family member, or
(iii) the safety of any child, in the case of an offender who has been convicted of a sexual offence involving a child;
(c) whether, in the Minister’s opinion, the offender is likely to continue to engage in criminal activity after the transfer;...
(g) the offender’s health;
(h) whether the offender has refused to participate in a rehabilitation or reintegration program;
(i) whether the offender has accepted responsibility for the offence for which they have been convicted, including by acknowledging the harm done to victims and to the community;
(j) the manner in which the offender will be supervised, after the transfer, while they are serving their sentence;
(k) whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency; or
(l) any other factor that the Minister considers relevant.
This list includes everything but the kitchen sink. It is broad. It is a very significant power to put in the hands of a single person, especially when we know that the current government is a government of law and order whatever the cost. This is all very subjective and is an attempt to win votes.
We live in a democracy based on the rule of law where every decision must be fair and meet objective criteria.
I sincerely believe that when we entrust so much power to a minister in the absence of any objectivity, we may be abandoning Canadians to the whims of this government. When the public no longer knows how the government will handle requests, it may lose confidence in a system that is neither fair nor transparent.
I would like to read an excerpt from an article by Nathalie DesRosiers, professor of law at the University of Ottawa. Ms. DesRosiers was the dean of the faculty of law and she is speaking on behalf of the Civil Liberties Association about Bill C-59, which preceded the current Bill C-5 before the unnecessary prorogation of last December:
Even if some Canadians believe that Ministers in Canada would never make decisions based on such sordid grounds as political contributions, there is the appearance that they may. Indeed, the lack of boundaries to such discretion prevent an analysis of whether a decision is fair, sound and wise, based on a consideration of all factors.
It also prevents any legal accountability. This, in my view, is going in the wrong direction. Although politicians certainly have the power to conduct international relations on behalf of Canada: they should want to exercise it in a way that is fair and transparent. The absence of rules prevents Canadians from knowing how they will be treated and exposes the government to charges of favouritism when they act or refuse to act. Indeed, when a white Canadian is repatriated speedily from Mexico while an Afro-Canadian is left in jail in Sudan, Canadians wonder whether the government is acting fairly and reasonably or in a racist manner. A stronger legal framework helps dispell such accusations and allow for more transparent ruling.
I believe we must not only avoid putting decision makers in positions that could lead them to abuse their power, but we must also avoid any appearance that they may have such power.
I would like to share with my colleagues the case of a young constituent from Hull—Aylmer, who is currently being detained in a penitentiary in Florida after being found guilty of crimes committed in the United States.
Mr. Speaker, since my presentation on this young resident could take several minutes, I suppose we should stop now so that you can proceed—