Madam Speaker, I am pleased to speak on behalf of the New Democrats on Bill C-5, An Act to amend the International Transfer of Offenders Act. By way of background, Bill C-5 is virtually identical to former Bill C-59, which was introduced in November 2009.
When Parliament prorogued, Bill C-59 died before it received any debate in the House. It was one of a suite of criminal justice bills, 17 as a matter of fact, which bills were actually killed by the government when in December last year it chose to prorogue Parliament and hold up much of the legislation that Canadians want and hold up the debate on many of the issues that ought to be debated.
Bill C-5 contains amendments to the International Transfer of Offenders Act. It would be helpful for all members of the House to consider the history and background of this act. Canada has had legislation providing for the international transfer of offenders both from Canada and into Canada since 1978. The International Transfer of Offenders Act was enacted in 2004 and replaced the old Transfer of Offenders Act.
The act essentially provides a mechanism for a foreign national imprisoned in Canada to apply for a transfer to his or her home country to serve the remainder of his or her sentence. Similarly, the act provides a mechanism for a Canadian citizen imprisoned abroad to apply for a transfer back to Canada to serve out the remainder of his or her sentence here in Canada.
As I said, the old act and the current act together have been in force for over three decades in this country. Both the Liberals and the Conservatives have been in power and overseen the administration of this legislation. Liberal governments and Conservative governments have overseen the transfer and repatriation of Canadian citizens back to Canada.
Between 1978 and 2007, which is the most recent year for which comprehensive statistics are available, 124 foreign nationals were transferred out of Canadian jails, and 1,351 Canadian citizens were transferred back to Canada.
The purpose and principles of the act are quite clear. The current purpose of the act is defined in section 3, which 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.
The Correctional Service of Canada has a website dedicated to the International Transfer of Offenders Act. This website gives more detailed background about the principles underlying the international transfer mechanism. I will quote from that. It states:
Canadians incarcerated in foreign countries often find themselves facing serious problems coping with local conditions. The most common problems involve culture shock, isolation, language barriers, poor diets, inadequate medical care, disease and inability to contact friends and family....In some prison systems, the offender's family is even expected to provide food and financial assistance. The purpose of these agreements is humanitarian to enable offenders to serve their sentence in their country of citizenship, to alleviate undue hardships borne by offenders and their families and facilitate their eventual reintegration into society. Once transferred, the offender's sentence is administered in accordance with the laws of the receiving country.
In the case of offenders, Canadians coming back to Canada, that means serving their sentences in accordance with sentencing principles of Canada. I want to emphasize that those are not my words that I just read. Those are the words of the Correctional Service of Canada. That is the description by the people we entrust, who have expertise in carceral policy in this country. It has been the policy of this country for 30 years. These are the principles the government seeks to change by this very flawed, poorly conceived, unjust and totally ineffective legislation.
Let us consider the current process for a transfer application under the act. For a transfer of a Canadian citizen to take place, the offender must consent to the transfer, the country where the offender is currently imprisoned must consent and the Canadian government must consent. Let us be clear. This requires tripartite agreement of all of the actors and it requires them to agree in every particular case, without which the transfer application will not proceed.
The Minister of Public Safety is then designated to review all applications for offender transfer. The present act specifies the factors that the minister shall consider when evaluating an offender's application for transfer. In section 10, four criteria are outlined. Let us consider whether these criteria are appropriate.
First, the minister must consider whether the offender's return to Canada would constitute a threat to the security of Canada. Right there, the national security of Canada is four-square in front of us as a criterion that must be considered. Second, the minister must consider whether the offender left or remained outside Canada with the intention of abandoning Canada as his or her place of permanent residence. Again, this is not a provision for fair-weather Canadians who then want to seek the protection of Canada. This is for Canadians who happen to be abroad when a criminal offence is committed by them.
Third, the minister must consider whether the offender has social or family ties in Canada. Fourth, the minister must consider whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights. These four criteria have been applied successfully and well by every government in this country for over 30 years. However, the current government suddenly has problems in applying these criteria.
I will pause here to say one thing. My research indicates that not one offender, who has been granted a transfer back to Canada to resume and serve his or her sentence, has ever reoffended. I think that the changes proposed by Bill C-5 will reveal to all Canadians and members of the House how poorly this bill is conceived. Bill C-5 seeks to add the words “to enhance public safety” to the purpose of the act. I am going to come back and talk about that in a minute because of course everybody is in favour of public safety.
The act currently states that the minister shall consider the factors that I just outlined. Bill C-5 would change this to read “the Minister may consider the following factors”. Bill C-5 also seeks to add the phrase “in the Minister’s opinion” to the existing factors laid out in the act. Bill C-5 would also add seven new factors, once again that the minister “may” consider.
I am going to stop there to say that the Conservatives have taken a judicial, legal process under a statute of Canada and have essentially said that the only Canadians who can be transferred back into this country, who have been convicted abroad, are people that the minister wants. That is it. There is no judicial way to challenge that. There is no legal way that a person could compel the minister to consider certain factors. It is whatever the Minister of Public Safety wants.
That is bad public policy and I would say that whether the minister of public safety was a New Democrat, a Liberal, a Bloc Québécois member or a Conservative. It is wrong.
There is a saying that we use in law schools to describe completely arbitrary law. We say that justice is measured by the length of the chancellor's foot. It might be six inches, eight inches or 10 inches. Nobody can ever tell because it is whatever is subjectively in the mind of that chancellor.
This is exactly the kind of legal thinking that typified our system 300 years ago, much before we had concepts like human rights, due process or rule of law. I would not expect the government to understand that, considering some of the legislation I see coming out of it.
These are some of the factors that the minister may consider: whether the offender is likely to engage in criminal activity in Canada, the offender's health, whether the offender has participated in rehabilitation programs, the manner in which the offender will be supervised after this transfer, and whether the offender has co-operated with police.
Let me stop here and say a couple of things. Think of this in terms of public safety. Say we had a Canadian serving a sentence in a Pennsylvania prison, much like David Radler, the person involved who was convicted and testified against Conrad Black. By the way, he applied under this legislation and was approved by the government to come back and serve his time in Canada. I did not hear the government complaining when a multi-millionaire applied under the International Transfer of Offenders Act and was granted the ability to come serve his time in Canada. I heard not a peep from the government.
However, if a person applied from Pennsylvania and came to Canada, that person would be coming here directly to jail. There is no public safety component to that. If that individual is serving time in a U.S. prison, that individual would continue to serve the time in a Canadian prison. There is no public safety aspect whatsoever. That individual is not coming back to this country to actually re-enter society. That individual is coming back to Canada to re-enter penitentiary.
One might say that people are going to be released into custody. This the major flaw and absurdity of the bill. When those people finish their sentence in Pennsylvania, the first thing the United States is going do is deport those offenders back to Canada and Canada has no choice but to receive them. So those people are coming back into Canadian society at the conclusion of their sentence no matter what. I will talk in a minute about how foolish that is and how this act actually makes Canadians safer by having those people transferred to a Canadian jail.
I want to talk about public safety because public safety is important. New Democrats agree that enhancing public safety should be given consideration when considering any piece of legislation that comes before the House. However, in this case the government has not presented one iota of evidence that public safety is being compromised under the current act. Nothing. But I have heard the public safety minister as well as members of the public safety committee say that they do not care about statistics, they do not care about the facts. They think they can define what are good criminal penal laws in this country by what they think or feel as opposed to the data.
It is important to remember that Canadians transferred back to Canada under the act are not being released immediately into the community and again, they are returning to serve out their prison sentence in a Canadian correctional facility.
I mentioned earlier why I think that public safety is enhanced by granting prisoner transfers. Offenders who serve their sentence in Canada will be subject to the oversight of a parole officer, released with conditions that must be followed ,and can have their rehabilitation and reintegration into the community carefully planned and monitored. The offenders who are sitting in a Pennsylvania jail or a Mexican prison have none of those things.
Offenders who serve their time in a foreign jail often have no rehabilitation, no programs, no substance abuse programs, no mental health programs, often nothing. In fact, often it is the case that they do not even speak the language of the country in which they are imprisoned.
Most importantly, Canada has no record of offenders who are not transferred back to this country, when they are released from a foreign jail and come back to Canada. They will come back to this country and we have no criminal record. We have no record of them serving time in prison. They will come back and they will be treated as a first offender if they do ever commit a crime in Canada.
Whereas, if they are transferred to a Canadian prison, we will have records. It will not be the criminal record. We will have records of them being in a penitentiary and then of course again, when the offenders are released into the community we can actually spell out the conditions of that release and supervise them. So it is actually less safe to pass this legislation. The Conservatives are endangering Canadians by passing this legislation because it will result in fewer people who are being approved for transfer.
I want to talk about whether there is actually a problem to be fixed here. The act is working. The Conservatives are trying to build a narrative that says that Canadians are being endangered because the Conservatives do not have enough power to deny applications for transfer. Again, I will trouble them with the facts.
From 2002-07, under both Liberal and Conservative governments, 367 applications for transfer were approved by the ministers involved and 24 were denied. So 367 times both Liberals and Conservatives decided to bring an offender back to Canada. Of those 24 denials, 3 offenders applied for judicial review of the minister's decision. One case was a denial based on the fact that the offender had spent 10 years in the United States and was deemed by the minister to have abandoned Canada as his or her place of permanent resident. So the federal court judge made a ruling stating that the court should not readily interfere with the discretionary decision of a minister and held that the minister's findings were not unreasonable.
Another case was a denial because the minister held that the prisoner had been identified as a member of a criminal organization and that the transfer would threaten the security of Canada. In that case, the CSC gave advice to the minister that the transfer would be highly beneficial and that the individual would not constitute a threat to the security of Canada. Nevertheless, the judge held that the decision of the minister was reasonable and the denial was allowed to stand.
Of the three denials, two cases were challenged and the minister's discretion was upheld. In the third case, the minister again made a denial on security grounds. The judge in that case, however, found that the decision of the minister was made with disregard to the “clear and unambiguous evidence” presented by the government's own officials. In this case the judge referred the decision back to the minister for re-determination.
The government points to this one case where a judge has overturned a ministerial denial, and on this basis it says, “Oh, we need to tighten the law”.
There was another case reported earlier this year, however, that I think is probably more revealing of the government's true feelings on this. This is where the judge did order a reconsideration of ministerial denial. In this case four individuals were convicted together of a single crime. Two of the individuals had transfer applications approved, but one was denied despite the unanimous recommendation of senior government officials.
The judge ruled that the minister's decision was inconsistent and arbitrary, and he gave the minister another 45 days to explain and justify or to reconsider the decision. This seems to me to be a very appropriate balance and a fair ruling, and yet the government continues to argue that it needs changes to this act.
I think this is the case, that the government wants to act arbitrarily and the current legislation prevents it from doing that. There has not been any case made that there is any reason to depart from the current scheme of the act, other than the government wanting to politicize the process and hand pick whoever it wants to come back into this country.
Again, the problem with Bill C-5 is that it does not strengthen the act, it shreds it. It does not strengthen the guidelines for the minister, it essentially eliminates them. Bill C-5 dictates that the minister may take certain facts into consideration, but then again he or she may not.
In the current act, the factors are presented as objective standards that can be evaluated by officials and, in the rare cases where it is necessary, ruled upon by a judge.
Now this opens up the process to bias. It does away with transparency and accountability. It allows the minister such wide-ranging discretion to ignore criteria completely and use his or her own subjective opinion as the test as he or she deems appropriate. That is wrong because it replaces an established law-based process with a politicized subjective one.
We might ask whether the government can be trusted to exercise discretion fairly. For New Democrats, this question of trust must be answered, unfortunately, in the negative. The government has demonstrated it cannot be trusted with unfettered power, whether it is the power to prorogue Parliament, or to hire and fire watchdogs and oversight officials, or to approve George Galloway, a British member of Parliament coming into our country and exercising his right of free speech as opposed to Ann Coulter who made derogatory and racist comments about many individuals.
We know what the government will do. It will exercise its political ideology instead of acting as fair and judicious public officials in this country.
With this bill the government proposes that the minister should be given absolute power and absolute discretion over who to bring back to Canada and who to leave overseas. It will do away with the judicial avenue for review by framing the minister's decision in such discretionary terms that it would be impossible for anyone to successfully argue that the act had been violated.
I want to ask, how do other countries feel about this? Because Canada has agreements with many countries for the reciprocal transfer of offenders. This is not just a Canadian plan. This is a program that involves dozens and dozens of countries. I suspect that if we ask other countries how they feel about the government wanting to essentially restrict the international transfer of offenders, which works beneficially for citizens of all countries, I would bet that those countries would express their displeasure to the government.
I want to talk a little bit about the politicization of justice because that is what I think the government is doing. If members go outside the Supreme Court of Canada or any court in this land, they will see a statue of the scales of justice with a blindfold on the statue, the goddess of justice. That is there for a reason. It is because justice ought to be objective and blind. It needs to have fair rules and fair law-based processes that apply to everyone equally, and not to allow judges to hand pick and not be accountable for their decisions by writing the rules that say it is whatever they think it is.
I want to end with a quote from the International Transfers Annual Report 2006-2007, which states:
In the 29 years since the first international transfer took place with the United States, there has been a steady increase in the number of agreements in place with foreign countries...increasing the number of applications received for processing...and of the number of offenders transferred to and from Canada. It ensures that offenders are gradually returned to society and that they have the opportunity—
