Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence for May 12, 2004
OTTAWA, Wednesday, May 12, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15, to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences, met this day at 3:41 p.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today, following our study of Bill C-15, we will continue briefly in camera to discuss the future business of the committee.
Please join me in welcoming our witnesses today from the Department of Public Safety and Emergency Preparedness, Ms. Mary Campbell and Mr. Normand Payette; and from Justice Canada, Mr. Michel Laprade.
I understand that witnesses may have a brief introduction. That will be followed by questions from senators. Ms. Campbell, please proceed.
Ms. Mary Campbell, Acting Director General, Corrections and Criminal Justice Directorate, Community Safety and Partnerships, Department of Public Safety and Emergency Preparedness: It is a pleasure to appear once again before the committee. I will to touch on two issues and then turn the microphone over to Mr. Payette.
With the Chair's indulgence, I would to note the death of the person who formerly held my position, Mr. Richard Zubrycki, who passed away on May 5, 2004. Mr. Zubrycki worked on Bill C-15 and on the sex offender registry bill. He felt privileged and honoured to appear before this committee many times over the past 20 years. When Senator Kelleher was first appointed as Solicitor General of Canada, he appeared before the Senate, sitting as Committee of the Whole, within hours of his appointment, and Mr. Zubrycki was honoured and thrilled to appear as a witness on the Senate floor to assist in the consideration of that bill.
He was a dedicated, honourable and wonderful public servant, and the criminal justice system will miss him deeply.
The Chairman: Before you commence, on behalf of the committee, I should like to add our deepest sympathies to colleagues and family. Thank you for bringing it to our attention.
Ms. Campbell: His family is quite touched by the remembrances that have been made.
The Transfer of Offenders Act was created in 1978, and it has not been amended very much since then. It is an important statute, and the short story is that it badly needs updating to conform to modern realities and to insure that it meets the needs of Canada and other countries in this century.
The purpose of the act is, essentially, humanitarian. It allows Canadians who are incarcerated abroad to come to Canada to serve their sentences, and similarly foreign offenders situated in Canada to return to their home countries.
While it is humanitarian, the ultimate goal is public safety. All countries recognize that it is far better to return citizens to their own countries while they are still under sentence, still under control and supervision, rather than have them released and deported at the end of the sentence without any controls.
The bill has proposals in three categories. First, there are proposals that will better reflect traditional treaty principles. Over the past 20 years, the treaties have gotten ahead of the act and we need to bring the act up to date. Second, there are proposals that will close gaps that have been identified in the act and bring it into conformity with other legislation. Third, there are proposals that will improve efficiencies in the administration of the transfer regime.
Having said that, Mr. Chairman, I will turn the microphone over to Mr. Normand Payette for a few comments, and then we will be delighted to take the committee's questions.
Mr. Normand Payette, Acting Director, Corrections Policy Division, Corrections and Criminal Justice Directorate, Community Safety and Partnerships, Department of Public Safety and Emergency Preparedness: I will give a brief description of the main elements of the proposals in each category.
With respect to the proposals that reflect traditional international treaty principles, the act would include or reflect principles such as dual criminality, non-aggravation of sentence, continued enforcement, and also adaptation. These principles are recognized and applied in treaties and will be reflected in the legislation.
There are also provisions in the bill that will add a purpose clause to the legislation to ensure that the humanitarian objective of the legislation and the public protection purpose is outlined.
There will also be an information-sharing requirement that will require a person designated by the minister and a prison official, officials responsible for prisons, to notify offenders of the existence of the substance of treaties between Canada and their country of origin.
You will also have a number of provisions that will govern the consent of the offender. For example, an offender being transferred from Canada would have the possibility of withdrawing his or her consent until the actual physical transfer took place.
With respect to closing gaps and aligning the legislation with other legislative provisions, to begin with, there would be provisions that would provide for the transfer of young offenders on probation, which is not the case right now, as well as children under the age of 12, and mentally disordered persons. The act would be made to reflect clearly that provincial consent is required to transfer offenders that are on provincial parole, temporary absences, conditional sentences, probation and intermittent sentences.
You would also have provisions that would clarify the sentence calculation rules to ensure that they are aligned with the Corrections and Conditional Release Act.
You would also have provisions that would ensure that Canada would be required to take appropriate action if a foreign state decided to exercise a compassionate measure in respect of the foreign sentence that the Canadian offender is serving. For example, if the foreign entity decided to set the sentence aside or grant a pardon, then Canadian authorities would have to defer to that decision of the foreign jurisdiction and release the offender.
Finally, you would have proposals that would improve efficiencies. This is probably one of the most important elements of the legislation. It would allow Canada to enter into administrative arrangements with countries with which Canada does not have a treaty that is in force. Sometimes, the negotiation of treaties is a long process, taking up to several years. With this provision, Canada would be able to negotiate an administrative arrangement for the transfer of an offender if there are compelling reasons to do so.
The provisions would allow Canada to negotiate an arrangement with non-state entities such as Hong Kong, Macao or Taiwan. Again, it is to further the humanitarian objective of the legislation. It would be to allow Canada to negotiate the transfer of offenders back to Canada.
The Chairman: My first point concerns the lack of input of victims with respect to transfer. As you know, victim impact statements can be taken on sentencing. I do not see any allowance for it with respect to transfer. The second point concerns what happens in the case of dual citizenship.
Mr. Payette: On your first point, with respect to victims, on average, 85 Canadians are transferred abroad to Canada every year, and about two foreign offenders are transferred back to their state of origin every year. With respect to Canadian offenders abroad, in terms of the victims' input, it would be for local laws to govern the extent to which they would have a say. Perhaps they do have a say.
With respect to foreign offenders here in Canada, as you pointed out, victims may make an impact statement at court and also if the offender appears before the National Parole Board. Beyond that, as I said, there is nothing in the legislation which permits victims to have a say.
Currently, in Canada, victims have no input in the transfer of an offender from one region to another or from one country to another. That is not provided for in the policies. It is not a right. However, under section 26 of the Corrections and Conditional Release Act, we try to provide as much information as we can to victims.
The Chairman: It might be more important in the case of a transfer out of the jurisdiction as opposed to within.
Mr. Payette: As I said, the number is small to begin with, two per year. As well, a number of victims do not want to be contacted once the process is over. It is a most delicate situation, so they have to manifest or express an interest in getting offender information.
From an administrative point of view, under section 26 of the legislation, we will advise them if a transfer does take place, and give them the location of the penitentiary. We can do that.
With respect to victim impact statements, if they want to mention that in court or before a parole board hearing, the authorities can take that into consideration, but with respect to the transfer per se, there is nothing in the legislation.
The Chairman: It seems to me a little unclear, reading the present bill, what happens when an individual has dual citizenship.
Mr. Payette: Consider the example of a Canadian who has dual American and Canadian citizenship and is incarcerated in the United States. He certainly has an inherent right to come back to Canada under the Charter, so he does not have to apply for a transfer. Perhaps Mr. Laprade has come across a concrete example.
Mr. Michel Laprade, Senior Counsel, Legal Services, Correctional Service Canada, Department of Justice: Canada recognizes the citizenship of individuals who have more than one citizenship. Some countries do not. That may, in a foreign jurisdiction, cause some difficulty for them. However, a person who is incarcerated in the United States and has both Canadian and American citizenship could transfer back to Canada.
You must consider, however, that the bill introduces some factors that the minister can take into account in an application of a Canadian offender who wants to come back to Canada. One deals with whether or not the offender left the country with the intention of never returning. There are circumstances where an offender could have left Canada for 30 or 40 years, at the age of two, and makes an application to transfer back to Canada. That application would have to be handled in Canada, but we would have to provide to the minister information respecting the links that person has to Canada, such as his family and social ties, and whether or not he left Canada with the intention of coming back. The time that a person spends outside of Canada is relevant for the minister to take into account when determining if the offender left Canada with the intention of not returning.
In a situation where a person has dual citizenship and has left Canada for many years, that factor has to be taken into account by the minister.
[Translation]
Senator Nolin: My question concerns the victims. I believe you are familiar with the Criminal Code provisions. These are amended on a regular basis to safeguard and maintain victims' rights. In your opening remarks, you spoke of pardons granted abroad and of Canada going along with this decision made by a foreign entity to grant a pardon. What happens then to a Canadian who is the victim of a crime committed in Canada, but where Canadian authorities have recognized a pardon granted by a foreign entity? What happens then to the Canadian victim?
Mr. Payette: If the offender is convicted in Canada and sentenced by a Canadian court, then it is up to Canada to decide whether or not to rehabilitate that person or to issue a pardon.
You, on the other hand, are alluding to a situation where, supposing a Canadian is sentenced abroad, in the State of New York, for instance —
Senator Nolin: My question really had to do with the Canadian victim. Take, for example, a case where a foreigner commits a crime in Canada, where the victim is a Canadian and a motion is filed to have the case transferred to another jurisdiction. The offender in custody is transferred, and that is the end of the proceedings in Canada. The offender serves out his or her sentence abroad.
If I understand correctly, the person will be able to serve out his sentence in his native country. Is that right?
Mr. Payette: That is correct.
Senator Nolin: Could he be granted a pardon by his country of origin?
Mr. Payette: No, not in so far as the sentence is concerned.
Senator Nolin: Then I misunderstood you. I had the impression that Canada would recognize a pardon granted by the offender's country of origin.
Mr. Payette: When a sentence imposed by a foreign country is served in Canada, one of the basic principles is that we try to comply with the sentence to the fullest extent and to respect the spirit of the sentence imposed by a foreign court. Canada cannot grant a pardon to someone charged abroad who is serving that sentence here in Canada, and vice-versa.
Senator Nolin: I am sorry, but I misunderstood you.
Senator Rivest: How many Canadians are presently serving sentences abroad?
Mr. Payette: Approximately 3,000 Canadians.
Senator Rivest: You stated that last year, about 85 persons were convicted.
Mr. Payette: Approximately.
Senator Rivest: I would imagine that most Canadians would prefer to serve out the remainder of their sentence in Canada. Correct?
Mr. Payette: Not necessarily.
Senator Rivest: I know that there can be many reasons for requesting a transfer. Do you get many requests from offenders serving their sentence?
Mr. Payette: I do not have any statistics as such.
Senator Rivest: I am not asking for specifics.
Mr. Payette: Approximately 3,000 offenders are serving out their sentences abroad, with 2,700 of them eligible for a transfer, that is they are being detained in a country with which we have a bilateral treaty or have signed an accord.
Senator Rivest: I see that the bill contains provisions that apply to young persons, depending on their age. I would imagine that the government is especially interested in young persons who are being detained abroad. Correct?
Mr. Payette: I contacted the unit in charge of transfers and officials told me that they have filed requests with DFO to have young persons transferred. At present, 17 young offenders are being detained abroad, nine of whom are between the ages of 12 and 18, and eight of whom are now over 18 years of age. When originally convicted, all seventeen young offenders were between 12 and 18 years of age.
Senator Rivest: When a young offender is sentenced under a foreign country's laws at 12 years of age, I would imagine that when he returns to Canada, he falls under Canada's young offender legislation the provisions of which may be more liberal and humanitarian.
Mr. Payette: Yes, that young person would be subject to the provisions of our criminal justice system for young offenders.
Senator Rivest: Why then from time to time do we see newspaper reports of families forced to wage public awareness campaigns and to involve the media when a family member is incarcerated? Obviously, from an administrative standpoint, it can be complicated, but why do stories like this make their way into the newspapers?
Mr. Payette: There can be any number of reasons. At the outset, the three parties must consent to the transfer, that is the foreign entity, Canada, and the offender. Earlier, when I talked about sovereignty, and compliance with sentences imposed by foreign countries, there are cases where states want to dictate the conditions for the transfer of the offender to Canada. They want to have their say in this process.
The foreign entity may want to have some input in terms of the security of the facility in which the offender is to be incarcerated. They also want to have some say in the parole eligibility date. They want to have some input, even though the country's laws apply.
Senator Rivest: Then it depends on the countries involved?
Mr. Payette: Yes.
Senator Rivest: Is Canada satisfied in so far as arrangements in the United States are concerned?
Mr. Payette: It depends on the individual state. A number of states are beginning to see things our way. Some states are still unwilling to go along with our approach. We try to explain the situation to them, to tell them: Listen, if you really want to put the emphasis on retribution, if you transfer the offender to our jurisdiction, we will see to it that he serves out his sentence. As a rule, the offender will be released after serving two-thirds of his sentence, will then be deported and turned over to our authorities. We try and explain to them that the offender will serve out his full sentence, under our supervision, if they agree to this arrangement. Sometime, they come around to our way of thinking.
[English]
Senator Joyal: I see different problems in the various steps of the process, which I will try to explain. When a Canadian is incarcerated in a foreign country, he does not abandon his or her rights vis-à-vis Canada. Canada, in a way, remains responsible for the maintenance of the dignity and physical integrity of the person.
Currently, that sector of human rights is evolving. The decisions of the Supreme Court in relation to the status of Canadians abroad — the extraterritoriality of the rights of Canadians when they are abroad — are evolving. Canada has signed international conventions of various kinds, but the line delineating the exercise Canada's sovereignty remains to be defined by opinion.
When a Canadian citizen is incarcerated in a foreign country, he or she contacts a Canadian official and requests a transfer to Canada. The Canadian government has the responsibility to ensure that person's rights under sections 8 and 12 of the Charter are respected. Supreme Court cases have recognized that. It is an evolving domain. It is not yet clear and well defined; nevertheless, it exists.
You suggested that there may be a clash of sovereignty because the country that detains a Canadian citizen for an offence wants to ensure that Canada applies a penalty or a prison term with some conditions. It could be that the foreign country had imposed certain conditions that we do not recognize. Some foreign-style conditions of imprisonment might be deemed cruel in Canada. This has raised questions about the role of the Canadian government in respect of citizens and about the applicability of penalties abroad that would not be acceptable in Canada. A Canadian citizen that might be the object of such a negotiation has a claim under the Canadian Charter of Rights and Freedoms. That is my first point.
Ms. Campbell: It is an extremely important point. I want to clarify the situation of a Canadian incarcerated abroad, as Mr. Payette mentioned. The minister would look at the nature of the person's continuing contact or ties to Canada. Such a situation, as envisaged, would include a rare and extraordinary set of circumstances. It would be the kind of case whereby someone left Canada as a an infant, has had no continuing contact with Canada and, at the age of 30 or 40, found himself incarcerated abroad. Even when the person's contact with the country of original citizenship is so tenuous, one would surely look at the other factors, including the conditions of incarceration abroad. I do not want to leave the impression that, because there is the exceptional provision, the person's citizenship in Canada would be valued less. It would be one factor only.
Officials try to support the negotiation of treaties in advance, before there is a high-profile case. You may recall a difficult case a few years ago, Spencer and Lamont. It became difficult to negotiate a treaty in the middle of a case that aroused controversy and passion in another country. Hence, we constantly try to look for opportunities to negotiate treaties before we have to deal with other political issues in conjunction.
Mr. Payette: On the notion of foreign states sometimes trying to impose conditions or trying to ensure that they have a say in the penalty or imprisonment, in many cases we try to explain the conditions under which the sentence would be served, in an attempt to sway. I know that consular officials from Foreign Affairs go out of their way to meet with foreign correctional authorities to explain exactly how the sentence would be administered, how the eligibility dates would be applied, how eligibility is not a guarantee of automatic release, and all the safeguards that are in place.
They try to point out the argument regarding the period of time when the person will be under supervision, should the transfer take place, as opposed to deporting them at the end of the sentence, which, in many cases, is inevitable. We recognize the importance of what you say in respect of the often difficult and harsh conditions under which a person may be incarcerated abroad in terms of the application of a number of Charter rights.
The inverse is also true. There is a general provision that offenders are entitled to the least restrictive conditions of incarceration, a principle that would apply to the general population. An offender could be returned to Canada and be told that he will be held in maximum security, even though his profile would be that of a minimum or medium security offender. It may, however, be that one of the conditions of transfer from the country of the offence would be that the offender would be incarcerated in a lower minimum institution. However, we cannot do that now. The offender would probably have a Charter argument at that point.
We are constantly balancing these issues. Our diplomatic officials are doing a great deal of work with foreign correctional officials on that front.
Mr. Laprade: I might add that it is not a negotiation of the administration of the sentence in Canada. When a country imposes a sentence on a Canadian, if a transfer application is made, we must first determine whether the conduct of the individual would be an offence and what the punishment would be under Canadian law. That is all we can administer in Canada. A country could to impose a sentence that exceeds the maximum sentence for that offence in Canada. In our treaty right now, and what we are proposing in the bill to basically codify, is the adaptation of the sentence to our laws. The bill does that with youth criminal offenders, and we also do that with adult sentences.
It is not a question of negotiation of how we will administer the sentence. As a matter of fact, it is more an education and trying to explain how we administer a sentence and have the person under our custody and supervision until the expiry date of that sentence. If an adaptation is required, we have to advise the country in advance, and they have to make the choice of whether they will accept us administering a sentence that is different from the sentence they imposed.
The same is true for foreign offenders who are transferring to other countries. Some countries have a process of conversion of sentence. They do not use the Canadian process of continued enforcement. They go back to a court and convert the sentence to accord with their own laws. As a result of conversion, the sentence imposed by Canadian authorities could be different in the end in the foreign jurisdiction. We do not exert pressure on the foreign jurisdiction to change or adapt to our own standards.
[Translation]
Senator Nolin: In the summary of the bill, you point out that it replaces the 1978 legislation. Can you explain to me what provisions were missing in that particular legislation and what provisions are included in the new one which will gives us more latitude?
Mr. Payette: Under the current legislation, the key provision is the option of negotiating an administrative agreement to extradite offenders detained abroad.
Senator Nolin: For my personal enlightenment, what exactly do you mean by administrative agreement? Do you mean a side agreement?
Mr. Payette: Basically, an administrative agreement has the same components as a treaty, with the exception that it would not be a permanent arrangement. The major difference between a treaty and an administrative agreement is the negotiation aspect.
Senator Nolin: It can be negotiated on an ad hoc basis?
Mr. Payette: Exactly. DFO advised us that fundamentally, Canada does not negotiate long-term agreements of a contractual nature with entities not formally recognized as being states. One example of this is China. While we maintain cultural and commercial ties with Taiwan, it is not an entity with which Canada would conclude a treaty. However, we could reach an ad hoc administrative agreement with Taiwan.
Senator Nolin: And that was not possible pursuant to the 1978 treaty?
Mr. Payette: No. That was only for treaties and multilateral conventions.
Senator Nolin: In that case, is the administrative agreement not separate in some respects from the treaty that we signed?
Mr. Payette: This type of agreement includes clauses similar to those found in a treaty, except that no order is required for it to take effect. It does not need to be ratified by a government order. It can be negotiated with an authorized representative, for example a Hong Kong representative. Hong Kong is a special administrative region and the person authorized to sign such agreements with us for the transfer of offenders is known as a legal advisor. We review the provisions and then sign the offender transfer agreements.
Senator Nolin: You are explaining a very practical instrument to us, but is it not possible to put in place some kind of procedure that would allow Canada to get around the treaty and opt instead for a much more efficient instrument, namely the administrative agreement?
Mr. Payette: That is entirely possible. Occasionally, the United States are the ones who want no part of a treaty with Canada or who have no wish to sign a multilateral convention. I can give you one example. Some countries are not able to take in nationals being detained abroad. They either do not have the means or resources, or the desire to do so. Either reason applies. Canada could spend years negotiating with another country and as I said, there could be compelling reasons to extradite. Entering into an agreement is always one option.
Mr. Laprade: An administrative agreement would not apply in the case of country with which we already have a treaty, unless it is for specific reasons set out in the bill, for example, to deal with cases of persons found not guilty or unfit to stand trail. This category of persons could be covered under ad hoc agreements. When a treaty does not apply to transfers of this nature, Canada could enter into an administrative agreement with another state, despite the existence of a treaty.
Mr. Payette: In the case of persons found not guilty on account of a mental disorder, no charges are laid.
Senator Nolin: I will wait until round two to address the issue of consent.
Senator Joyal: In the case of the United States, is there one single treaty that covers all US states or do different rules apply in different states when it comes to approving or refusing a transfer?
Mr. Laprade: Canada has a bilateral treaty with the United States. I will spare you the details of multilateral conventions, because that is not the relevant issue here. We have a bilateral treaty with the United States as a nation. In the U.S., each state can adhere to the bilateral U.S. treaty respecting transfers. I believe 48 or 50 states have in fact ratified the treaty in question.
Mr. Payette: They brought in procedures to implement the treaty. It was a way for them to recognize the treaty's existence and to ratify it by passing enacting legislation.
[English]
Senator Pearson: This is a most interesting subject. The bill raises a number of issues that strike me as significant as a practical measure. I have some questions for clarification because, from reading the bill, I do not get the answers.
What button pushes the process? If you are a Canadian in jail in France, is it the prisoner who starts the process, or is it the state?
Mr. Payette: There are many possible scenarios. As you said, senator, the state may start the process. Normally, it is the offender who will make an application and present it to his or her case management officer. Mr. Laprade offers legal opinions.
Mr. Laprade: The first thing that happens when a person is in jail is that consular relations are advised. That is where it starts. As soon as we know a person is in jail, the process starts. Our mission in the foreign jurisdiction then contacts the individual. If there is already a treaty, the person will be informed of the existence of the treaty. In the treaties there is an obligation on the signatory, both states, to advise foreign offenders in their jurisdiction of the existence of the treaty. In case that does not happen our consular officials are there to provide information. That is where it starts.
After that, depending on the type of treaty to be used for the transfer, application is made by the inmate directly to the foreign state or to Canada. In some multilateral treaties or conventions, either state may make the application.
In all cases, and I understand you want to discuss this issue, for a transfer to occur, there must be consent from the sentencing country, the receiving country and offenders themselves.
Senator Pearson: That is helpful. There is no schedule of offences that are not covered by these.
Mr. Laprade: No.
Senator Pearson: I do a lot of work in the area of sexual exploitation of children. I understand there are about 60 cases of Canadians who have been charged abroad. I do not know whether they have all been convicted, but quite a number of them have been convicted abroad. It would be interesting to see how a conviction for that crime works out in this particular process, and to know whether anyone who has been convicted of that offence has repatriated.
Mr. Payette: On that note, yesterday I had the international transfer unit track the last 162 offenders who were transferred to Canada. They counted back from June, 2002. Of the 162, 95 per cent were convicted of non-violent offences, and the remaining 5 per cent were convicted of violent offences. Approximately 90 per cent were drug offences, in particular cases of possession with intent to traffic. From what we can tell, it is mostly the carriers, the mules, the kids, those who are down and out who are asked to transport these drugs.
There were none involving sexual offences in the database.
Senator Pearson: That is interesting because it means they are not asking for a transfer.
Mr. Payette: On average, 70 per cent of federal offenders, those convicted in Canada and serving their sentences in penitentiaries, are serving sentences for offences involving violence. As I said, 5 per cent of the 162 were convicted of violent offences. I asked the researchers to include possession of a weapon in that category. Not that the offender used the weapon, but I asked them to classify those offences as violent offences.
Senator Mercer: In the case of someone transferred here or someone transferred someplace else from here, and he or she applies for parole through the normal process or through someone else's normal process, how is that administered and does it involve financial considerations? If we are administering someone who has committed a crime elsewhere and we are going through the parole process, how do we apply that?
Mr. Payette: That is an issue. Yes, it is one of the principles of continued enforcement. It becomes complicated. I will ask Mr. Michel Laprade to assist.
Normally, once we have established dual criminality, the correctional authorities will explain to the offender the manner in which the sentence will be administered. The same rules that apply to a Canadian sentence are applied to a foreign sentence as much as it can be. In other words, the individual will be eligible for a temporary absence after having served one-sixth of the sentence, will be eligible for day parole after six months or six months before full parole eligibility, and will be eligible for parole at one-third, and statutory release at two-thirds. It is not always that clean-cut.
Mr. Laprade: I cannot talk about the foreign offenders who are transferred to a foreign jurisdiction because each country has its own method of calculation.
Mr. Payette: I was talking about the situation after they arrive in Canada.
Senator Mercer: It is important to know what happens if somebody has been convicted here and is our responsibility and we transfer that person somewhere else. We do have some responsibility for what happens to them, at least I feel some responsibility that if we are transferring them to a place where they might not be eligible for parole under what some would call the very liberal parole situation we have in Canada. It is more important, for my question, to know the situation of people coming here.
Mr. Laprade: You have to understand that what we are proposing in the bill, not that it changes many things, clarifies and makes it a little bit cleaner for the Canadian authorities when the person has been transferred to Canada.
When a person is sentenced in a foreign jurisdiction, they do sometimes have different ways of determining the commencement of sentence or the credits they give to them. When the person gets to Canada, Canada recognizes the credit that was granted by the foreign jurisdiction, all kinds of credit, namely, time served before the transfer and other forms of credit that the foreign jurisdiction grants, for good behaviour, for example.
That is taken into account in determining what time is left to be served by the offender. For determining parole eligibility, as my colleague said, we use the same rules: one-third of sentence and the calculation is done from the commencement of sentence.
This happens to create, in some cases, offenders who come to Canada with a date of parole eligibility that precedes the date of transfer. The act would provide that, when that happens, we will deem the date of transfer to be the date of eligibility for parole. Next, provisions in the act will say that the Canadian authorities will have a period of six months to prepare the case, to review the case, for parole. The correctional authorities and the parole board need some time to be able to assess the risk that the individual poses to society. Until we know what they have done and how they have behaved, we need some time. This bill will create a deeming provision that deems the eligibility to be the date of transfer.
We have another way of calculating statutory release based on what remains to be served on the sentence.
Senator Mercer: I suppose that, if a state had much stricter laws than ours and minimum sentence times, as opposed to ours, it would not bother entering into an agreement with us.
Ms. Campbell: They would not agree to the transfer, and that does happen.
Senator Mercer: Is that negotiable? If someone wanted to return to Canada and the country they were coming from, said that they would agree to that but the prisoner must serve a certain period of time which would be outside the norm of the Canadian system, would we agree to that?
Mr. Payette: We could not do that, senator, although you raise an interesting point. As I said earlier, 90 per cent of the offenders are serving sentences for drug offences. As Mr. Laprade will confirm, a number of drug offences call for life sentences. As a matter of fact, one offender transferred here from Thailand was serving a 40-year sentence for trafficking. Under Canadian legislation, it was a life sentence, so we can enforce and administer that sentence. If the sentence imposed by a foreign state exceeds Canadian norms, then we have to resort to adaptation.
Senator Mercer: My concern is that we agree to this adaptation before the transfer occurs. Under the Charter, I would expect that they would have the same rights as other Canadians whether they committed the crime here or in another place. I would be concerned that we would enter into an agreement.
Mr. Payette: We could not
Senator Joyal: I want to come back to clause 10 of the bill. I was puzzled when I read the bill and the debates in the other place. An amendment was made to the original draft of the bill. The precursor was Bill C-33.
Mr. Payette: Yes.
Senator Joyal: I read the amendments that were made in the other place to clause 10, to replace lines 4 and 5 on page 5 where it states:
(c) whether the offender has social or family ties in Canada; and
(d) whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights.
That puzzled me.
Mr. Payette: We were puzzled also.
Senator Joyal: I am happy to know that I am not only one. If Canada were to sign a treaty with a foreign country, it would be to ensure that its citizens would benefit. As soon as the treaty is signed, the Canadian citizen comes under its umbrella and the protection of the treaty. Canada has obligations, and that is why Canada signed the treaty.
When I read subclauses 10(1) and 10(2), I see that much discretion is afforded the minister to appraise the various facts or elements in this determination. Clause 10(1) states:
10(1) In determining whether to consent to the transfer of a Canadian offender, the Minister shall consider the following factors:
What adversary process ensures that the rights of the Canadian offender are taken into account when the minister appraises those factors? In other words, does it meet the test of the principle of fundamental justice as protected in the Charter?
Mr. Payette: Senator Joyal, these considerations, with the exception of 10(1)(d) and the one that speaks to organized crime and terrorist offences, are currently in the regulations, which were adopted in the early 1980s. They have been in secondary legislation and have been applied. I must say that, of the roughly 1,000 Canadians who were transferred, there might have been one or two for whom the transfer was rejected.
We have tried to protect their interests. The minister has an obligation to give the reasons he does not want to consent. As to the considerations, that is what they are — ``considerations.''
[Translation]
We have attempted to set out guidelines for exercising discretion.
[English]
Senator Joyal: That would be the worst-case — to leave discretion to one person. I have been a minister and that is the worst position to be in — faced with legislation and with certain criteria and you are the only one reading the file on a Sunday night, wondering whether to agree or to disagree with a case. You have to search your soul and your conscience. The extradition bill, which was before this committee under another Chair, left the discretion, in dealing with an important extradition decision that affects the life and liberty of Canadians, in one person. You will remember that we argued with the department over Bill C-44.
I am concerned with the way in which the minister achieved the decision in the context of making sure that the proof could be vetted with a system that protects the rights of the offender. As you said, even though you have rejected only two cases in 1,000, those two persons might have the right to be in the Canadian prison system and benefit from the rehabilitation process and so forth.
What guarantee is afforded in this bill that the principle of fundamental justice will be satisfied when the minister applies those criteria?
Mr. Payette: The functionaries for the minister's review do the workup or case preparations. They do their utmost to ensure that the information contained on file is accurate, is thorough and is according to appropriate legal standards. All the files are run through legal services. We have to assume that everything is done professionally and with integrity, senator. Do colleagues have something to add?
Ms. Campbell: The provisions of the bill have to be read in light of the purpose of the bill, which is quite clear. Clause 10(1)(d) did cause some concern because, although it was well-intentioned, if the conditions in the foreign country were particularly egregious, that should weigh heavily on the decision making, if a person were suffering in a foreign country. There was some concern that the reverse should not be true, though. Someone could be incarcerated in another country where the conditions are comparable to those in Canada. The purpose of the bill is to protect society and rehabilitate the offender, which can best be achieved in the home country under home conditions. It is important to not lose sight of that. Going back to the stated purpose of the bill, it has to be read in accordance with clause 10(1)(d).
Within the department, as Mr. Payette has said, there are a number of internal processes and checks and balances. Although Correctional Services Canada will do the workup on the transfer case, often the deputy who is in charge of the department, which is where Mr. Payette and I work, will be asked to provide additional advice to ensure that nothing has been overlooked. There are a number of processes internally to assist.
Senator Joyal: Is there an appeal process of the decision of the minister?
Mr. Payette: As it currently stands, it can be subject to a judicial review, but in terms of an internal process, the offender, if the application is rejected, can reapply. He has the possibility of reapplying or trying to correct it.
[Translation]
It is a matter of rectifying all of the inaccuracies in the files.
[English]
Mr. Laprade: This is why the bill requires that the minister provide written reasons. The offender receives them. He can resubmit, rebut or present other information. As Mr. Payette said, he can also reapply after going through the first step of trying to convince the minister that some of the grounds that the minister is using are not accurate or whatever. At that point, another application could be brought.
Senator Joyal: Am I correct in saying that there is no formal appeal process except the general protection that someone could claim under section 7 of the Charter?
Mr. Bélisle: There is no formal appeal process, senator, no.
Senator Joyal: I look at paragraph (d), and I read section 6 of the Charter, and you probably think I am obsessed with it, but I am trying to understand how the Charter will apply. It says every citizen of Canada has the right to enter, remain in and leave Canada.
Canada signs a treaty with a foreign country to make it easy for its citizens to come within. There is a responsibility that the offender has taken upon himself or herself, because he or she committed an offence, but nevertheless he or she is protected under sections 6, 7 and 12 of the Charter.
As much as I agree with the purpose of the bill, we must ensure that the system works in a way that meets the Charter tests in the determination of a decision that affects the living conditions and the physical integrity of the person. That is what I believe is the compelling question on this. Paragraph (d) directly refers to the human rights of the person. It triggers all the international conventions that Canada has signed when it uses the phrase, ``security or human rights.'' It is very broad. It is everything. It does not specify only the Charter, or the Canadian Human Right Act, or international covenants, or the protection of youth that Senator Pearson has been working on, the international convention, and so forth.
I am sure you laboured with these issues. Someday, a Canadian citizen abroad might feel aggrieved that the process was not open enough or convincing enough, that the decision appeared to be too arbitrary, in his or her opinion, and then fight the system. If we are to adopt this bill in its present form, and I have no objection to it in principle, because I think it is an improvement, we must ensure that it meets the test of the Charter.
Mr. Laprade: If I may, the process we have had since 1978 is exactly the same as what we have in Bill C-15 in the sense of the decision-making aspects. It is the minister who makes the decision as to whether or not the person would be transferred out of the country or back into Canada, and that has been the case since 1978. This does not change any aspect regarding that, except that it requires the minister to put it in writing when he decides to not grant the application. If the minister contemplated not consenting to a transfer, without this being couched in any legislation, the offender would be advised of the recommendation not to accept this transfer and would have a chance to make representation to the minister.
You asked why there is no appeal. The minister cannot be the appeal level of his own decision. At this point, the only other step that remains to the offender is judicial review, if the offender believes the minister inappropriately used his discretion in disallowing the transfer.
Senator Joyal: I do not want to take too much time, but clause 2(a) mentions that the person, in the opinion of the minister, might commit a terrorist offence under the Criminal Code. This is an encompassing motive in the bill. I totally agree with you.
After the decision of minister, what is the level of appeal? It is a Federal Court judge, and there is no question about that. We have the Citizenship Act, and my colleagues will remember Bill C-11 where we questioned an administrative decision that was not subject to appeal. Many groups came forward to discuss the issue of a minister's discretion, especially on the issue of terrorism, and we all know that this is the buzzword today. The person has his or her rights protected in the form of a guaranteed process of review. That discretion is reviewable to guarantee the impartiality of the decision, in a way.
[Translation]
Senator Nolin: I would like to get back to the issue of consent. Could you explain to me the rationale behind the proposed section 8(5) and the whole question of persons authorized to consent. I understand the meaning of this provision, but the actual wording seems quite complex. I have no problem with the definition as it appears in the Young Offenders Act. How does this work? If young offenders fall into this category, are they then conditionally released or must they be transferred? I do not quite understand how this provision works.
Mr. Payette: Are you referring to subsection 5?
Senator Nolin: Subsection 8(5).
Senator Rivest: ``Transfèrement'' is a rather odd choice of words in French.
Senator Nolin: Let us focus on the consent issue. Then, we can look at the title of the act. The words ``released on conditions'' is not clear. The expression ``est libérée sous condition'' in the French version is not clear either. I understand what you are trying to say, but I am not certain that this is the correct choice of words in French.
Mr. Laprade: The expression ``released on conditions'' refers to the province where the person is detained, or the province where the person is granted conditional release, while the words ``or is to be transferred'' refer to an offender who is being detained abroad.
Senator Nolin: If an offender is being conditionally released, why is that person's consent required?
Mr. Payette: We are talking here about young offenders. Under certain circumstances, young offenders are not old enough to give their consent. It all depends on the province. For example, a province may require an offender to be 14 years or older, or 15 years or older, in order to give consent.
We wanted to make the legislation as flexible as possible in so far as young offenders, children and persons suffering from a mental disorder are concerned. These matters comes under the authority of the provincial government.
Senator Nolin: And that is the reason why you require the consent of the provincial authority.
Mr. Payette: Yes, especially in the case of persons who are under the authority of a province — for example, persons found not guilty on account of mental disorder.
Senator Nolin: The consent of the provincial authority is required. This is clearly stated in the proposed section 9(1).
Mr. Laprade: That is correct.
Senator Nolin: In fact, there are two government authorities: on the one hand, the federal minister who is the relevant authority within the meaning of the act, and the provincial authority, most likely the minister. Correct?
Mr. Laprade: The proposed subsection 5 refers to the authorization to give consent in accordance with the laws of the province. This means that the provinces, which have responsibility for civil law, all have similar, but not necessarily identical, requirements in place when it comes to persons authorized to consent on behalf of an adolescent or child. That is what is meant here by provincial authority. It is not just a reference to the provincial authority in charge of corrections.
Senator Nolin: It is a reference to the authority who has jurisdiction in accordance with civil law.
Mr. Laprade: Yes.
Senator Nolin: I simply want to be certain that the proposed subsection 5 is clear. It allows for such a broad interpretation that provincial authorities will have ample room to exercise consent. Is that what you were trying to accomplish?
Mr. Payette: Yes.
[English]
Senator Pearson: I was impressed when I read that, when the minister and relevant provincial authorities consent to the transfer of the offender, they shall consider — it is not ``will,'' they ``shall'' consider — the best interests of the young person. When dealing with a child, that is the primary consideration. I was very pleased to see that.
[Translation]
Senator Nolin: I have one last question for you concerning the scope of the protection afforded to people. Does the treaty preclude your extending protection to all persons residing in Canada, and not just to Canadian citizens? In other words, an immigrant who chooses Canada as his new home is not protected, as long as he is not a Canadian citizen. In that case, it may be better for these persons not to travel outside the country.
Mr. Payette: The law applies only to Canadian citizens.
Senator Nolin: Is protection under the terms of the treaty limited to our nationals, a rather odd choice of words?
Mr. Laprade: Pursuant to the Immigration Act, these permanent residents would become persons ineligible to remain in Canada from the moment that are found guilty of a criminal offence. As a result, they would be deported.
Senator Joyal: Even after they had served their sentence abroad?
Senator Nolin: They would no longer be eligible to become Canadian citizens at some point in the future.
[English]
Senator Christensen: I have four questions of clarification. These issues were raised during second reading.
How many children under 12 have we ever had applications for, or have any children ever been any transferred back to Canada?
Mr. Payette: As I said, earlier, I asked Foreign Affairs to contact their missions, the international transfers unit, and the response we received yesterday was that there have been none.
Senator Christensen: There have never been any of which you are aware. It was put there to try to cover all the bases, and I presume that the committee of 91 groups that reviewed this made that recommendation.
The process, of course, is triggered by a person who has been incarcerated in a foreign country or in Canada making a request to be transferred, and then the two countries involved have to be in agreement with that transfer. There was a question about the person being transferred having equal status, if you will, in the agreement process with two recognized countries or non-state entities. Is there a legal problem with an individual having that same weight of agreement as the two states?
Mr. Payette: Senator, in a bilateral treaty, there are only two equal parties, and they are the sending state and the receiving state, Canada and the foreign state. The offender must consent to the transfer.
Senator Christensen: You are saying three parties must agree. There are really only two.
Mr. Payette: Exactly.
Senator Christensen: The individual has to give consent. He or she must be willing to go; is that right?
Mr. Payette: That is right. Mr. Laprade could answer the legal questions better than I could, but offenders are always free to bring a lawsuit if they feel they have been unjustly treated. They can ask for a judicial review if they feel they have been unjustly dealt with or transferred against their will or if a condition was not met. By and large, from a status point of view, there are only two parties, Canada and the foreign state.
Mr. Laprade: The consent aspect is consent to a transfer. Consent to a transfer under the act is a consent to a transfer process happening. It is not a consent in respect of the negotiations of treaties. We have to separate these elements. Consenting in the transfer process is consenting to a physical transfer, rather than the aspect of consenting to agreements that are being made between two countries.
Senator Christensen: Where we do not have treaties or conventions and are entering into an arrangement with a non- state entity, what status does the country where that non-state entity have if they did not agree? Say it was Hong Kong or Taiwan, China. Could it say, ``No, we do not agree that you can enter into this arrangement?''
Mr. Payette: That happens frequently. Missions will propose that treaties be signed and arrangements be signed for mutual legal assistance in criminal matters, extradition arrangements and treaties for the transfer of offenders, and they are free to say yea or nay.
Senator Christensen: Those arrangements are conditional on the country.
Mr. Payette: Always.
Senator Christensen: The minister reviews and makes the final decision. Which minister does that?
Mr. Payette: For the time being, until the legislation is changed, it is the Solicitor General of Canada. However, we are working on changing the legislation so that it will be the minister of our new department, the Department of Public Safety and Emergency Preparedness.
Senator Christensen: You will need further legislation.
Mr. Payette: That is right. Legally, it is the Solicitor General of Canada.
Senator Joyal: Again dealing with subclause 10(1) paragraph (d), how will you interpret that?
Mr. Payette: Given the humanitarian purpose of the legislation, it is certainly in line with one of the fundamental purposes of the legislation.
One of the compelling reasons would be difficult conditions of incarceration and treatment of the offender. This amendment is in line with the primary objective of the bill.
Ms. Campbell: Certainly, the offender will bring to the attention of the authorities in the application if there are grievous conditions and affronts to human rights. We would expect to see that in the application. Additionally, information would come from our foreign missions consular staff to advise us of particular conditions that may be occurring. Officials are aware of conditions in certain countries.
Those elements of information would be brought to bear. I would emphasize that, even in the absence of egregious conditions, the bill has a purpose that would still be pertinent in such a situation.
Senator Joyal: It would be in the context of the report of Amnesty International, for example, on the conditions of prisoners in various countries where Canada might have a treaty or agreement. How many of those do we have?
Mr. Payette: There is a mix. We have more than 11 or 12 bilateral treaties. Canada is a signatory to multilateral conventions to which more than 45 countries are signatories. In total, there are more than 45.
Ms. Campbell: In our function, we read, study and remain in contact on a regular basis with many organizations around the world that monitor prison conditions. That is one part of our information base as advisers.
Senator Joyal: Is it your objective to add to the number of the agreements on the basis of the international report that provides that countries X, Y, Z have horrendous conditions and legal systems? To me, human rights also refer to the legal system and not only to the physical conditions of the incarceration. We know that the legal system in some countries is not reliable for many reasons. I can think of many countries with which Canada would provide benefit for its citizens if it had treaties of that nature. We know that the systems in many countries do not meet what we deem to be proper standards in today's world. I do not need to provide the names. Is it part of your policy to develop agreement and priority with those countries?
Mr. Payette: On a regular basis, we meet with foreign affairs officials and target various parts of the world. They have plans for which treaties and negotiations are being actively pursued and are showing the most promise. We do that on a regular basis.
Ms. Campbell: We will look at conditions, the number of offenders and Canadians in foreign countries. Our approach is to put treaties in place before they are needed. Certainly, places of real pressure would be targeted as priorities.
Senator Joyal: We know the countries that comprise part of the drug rings. Senator Nolin probably knows more than I do about that. The bulk of the offences involve drugs, especially when dealing with certain regions of the world where we know this is happening. Senator Nolin's committee has studied this issue professionally and he could probably testify on the issue.
It would seem to be sound Canadian policy in respect of its citizens to target the countries where we know the largest number of offences, especially involving youth, is to be pursued in priority.
The Chairman: Mr. Laprade, Mr. Payette and Ms. Campbell, thank you for giving your time and being here with us this evening to share your expertise and background on Bill C-15. You have been frank and forthcoming with your answers in interaction with senators.
Ms. Campbell, on behalf of senators and myself, our deepest condolences to the colleagues, friends and family of Mr. Richard Zubrycki.
Ms. Campbell: Thank you. I will pass those sentiments on.
The committee continued in camera.