Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11 - Evidence for February 16, 2012
OTTAWA, Thursday, February 16, 2012
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 10:36 a.m. to give consideration to the bill.
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: Good morning and welcome, Senate colleagues and our invited guest who I will introduce to you in just a moment. I am John Wallace, senator from New Brunswick, and I am Chair of the Standing Senate Committee on Legal and Constitutional Affairs.
Honourable senators, today we are continuing our consideration of Bill C-10, an act entitled the safe streets and communities act. Bill C-10 proposes to amend and enact a number of acts which for the purposes of today's hearing include the International Transfer of Offenders Act. This bill groups together nine bills that have been dealt with separately during the previous Third Session of the Fortieth Parliament.
Bill C-10 was first introduced in the House of Commons on September 20, 2011, by the Minister of Justice, The Honourable Rob Nicholson. The bill underwent several weeks of consideration in the house and was referred to this committee by the Senate on December 16, 2011, for further study.
In order to properly complete our examination of the bill, we have scheduled 11 days of public hearings, including all-day hearings during the week of February 20 to 24, 2012. This is our sixth hearing on Bill C-10.
These hearings are open to the public and are also available live via webcast on the parl.gc.ca website. In total, the committee has invited approximately 110 witnesses, and more information on the scheduling of witnesses can be found on the parl.gc.ca website under the heading "Senate Committees. "
The topic for today's hearing focuses on Part 3 of Bill C-10 which deals with post-sentencing and, more specifically, proposes amendments to the International Transfer of Offenders Act. The legislated purpose of the International Transfer of Offenders 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 amendments proposed in Bill C-10 to the International Transfer of Offenders Act include provisions that would add additional factors that may be considered by the Minister of Public Safety in determining whether to consent to the transfer of a Canadian offender back to Canada.
Honourable senators, before introducing our guest who is joining us today, I would first like to take a moment and have each of our Senate committee members introduce themselves and indicate the region that they represent, beginning with our deputy chair.
Senator Fraser: Thank you, Mr. Chair. My name is Joan Fraser and I am a senator from Quebec.
[Translation]
Senator Joyal: Senator Joyal from the district of Kennebec, Quebec.
[English]
Senator Baker: George Baker, Newfoundland and Labrador.
[Translation]
Senator Chaput: Maria Chaput, Manitoba.
[English]
Senator Angus: David Angus, Quebec.
Senator Lang: Dan Lang, Yukon.
[Translation]
Senator Dagenais: Jean-Guy Dagenais, Quebec.
Senator Boisvenu: Pierre-Hugues Boisvenu, Quebec.
[English]
Senator Frum: Linda Frum, Ontario.
Senator Runciman: Bob Runciman, Ontario, Thousand Islands and Rideau Lakes.
The Chair: Thank you, colleagues.
I am pleased to welcome our first witness, from the Department of Public Safety, Mr. Daryl Churney, Director of Corrections Policy. Welcome and we are very happy to have you here. Mr. Churney, do you have an opening statement you wish to make?
Daryl Churney, Director, Corrections Policy, Public Safety Canada: Thank you, Mr. Chair. I do not have prepared remarks. I would like to note a couple of things for the committee's information. I have left with committee members a very brief overview presentation on the International Transfer of Offenders Act in both languages. It is really just a very quick kind of overview or highlights of some of the fundamental principles underlining the act, a little bit of the history and just some general statistics on the number of transfer of offender treaties that Canada currently has either in a bilateral or multilateral format. This is really just background information for your own perusal. I will not speak to it directly unless there are particular questions that members would like to raise.
I left copies of these booklets with the committee clerk that are produced by Corrections Canada which is what transfer applicants receive once they make an application, so it is for their own information. It includes the act, an overview of how transfers work so that offenders really understand what the process will be, and just a little bit of background information for their own knowledge. These are a bit harder to come by, so I have only left five or six copies with the committee clerk.
Although I am alone at the table today, I am joined by my colleague Agnès Lévesque with Public Safety legal services. She is in the room with me, so if there is a point that requires a legal perspective, that resource is available to the committee as well. Other than that, I am in your hands, Mr. Chair.
The Chair: Thank you, Mr. Churney. We will begin with our deputy chair, Senator Fraser.
Senator Fraser: Thank you very much, Mr. Chair.
I have many questions about this actually fairly brief portion of Bill C-10. First, in the factors that are set out for the minister to consider, I have two related questions. One is that the minister in this proposal is told that he or she "may " consider the following factors whereas in the past it has been the minister "shall " consider the following factors; and then a fair number of the factors, not all but a very significant portion of them, it is not only that the minister may consider them, it is then that "the minister may consider whether in the minister's opinion. " For example, the minister may consider whether in the minister's opinion the offender's return to Canada will endanger public safety, whether in the minister's opinion the offender left Canada with the intention of abandoning Canada as a place of permanent residence.
This seems to me not only to be building in a very large amount of ministerial discretion but two layers of it. First of all, the minister does not even have to consider these things; and second, it is just a matter of whether the minister in his or her opinion that morning thinks these things come into play.
What was the model here? This strikes me as a very unusual legal construct, to put it mildly. Was there a model here that was followed? Is there a precedent for this very loosey-goosey, if I may be a bit ordinaire?
Mr. Churney: Sure. I would say a couple of things.
First, the act has always prescribed that the Minister of Public Safety has the decision-making authority for the act. That decision-making authority has never been delegated down to officials, for example. It has always rested with the minister as the sole point of decision making. That is point number one.
Point number two, given that there has been a fair amount of judicial interpretation of the act over the last year or two, the courts have been quite clear, Federal Court in particular, that the minister has a very large amount of residual discretion under the act and that the minister is due a very large amount of deference under the act in respect to his decision making. I set that out as context.
In respect of the question of "may " versus "shall, " I think the approach was that because the act currently only has a very specified relatively short number of factors that the minister shall consider, the government's intent, obviously, was to in part respond to recent court litigation that in some way urged the minister or requested he give more fulsome reasons when a decision has been made and it is a denial. The factors that are articulated in Bill C-10 are really meant to fill that void in a way such that the minister is able to pinpoint with more precision in his denial letters what his specific reasons are.
In respect of why it articulates that it is now "shall consider " there was a consensus.
Senator Fraser: It is now "may. "
Mr. Churney: Sorry, yes.
Senator Fraser: It will be if this bill passes.
Mr. Churney: It will be "may, " yes, exactly.
In respect of it being "may, " because there is a longer list, obviously not all of those factors would necessarily apply in each and every transfer application. It was considered to be an over-breadth to maintain the word "shall " because it would be quite cumbersome for the minister to have to consider each one of those particular factors which may not apply in every single case.
With the longer list, the legal advice was it was much more prudent to use "shall, " so that is really kind of the model.
Senator Fraser: If I were of a suspicious mind, and bearing in mind that a number of the recent court decisions have thrown out the minister's decision because the minister did not give much in the way of reasons for his decision, if I were of a suspicious mind, I would say that what this does is, in fact, relieve the minister of any responsibility at all for explaining his decisions. I find nothing in here that strengthens the requirement for the minister to explain the precise reasoning for the decision that is made, particularly in the case of a refusal to permit the transfer back to Canada Canadians who are incarcerated abroad. You have to give me some comfort on this one, Mr. Churney.
Mr. Churney: Senator, the act will still maintain the requirement that is already embedded within the legislation that the minister is required to provide written reasons to an offender where denial is found, and so that obligation rests with the minister before Bill C-10 and after Bill C-10. In no way is that obligation watered down. In fact, it has been quite strengthened just simply by fact of recent court litigation which has really emphasized the minister's requirement to do just that.
If I could just go back because I did not answer the second point of your first question which was why did we include the language of "in the minister's opinion, " the reason is because particularly with considerations such as whether an offender would commit a criminal organization offence after a transfer, the courts have been generally clear that the minister cannot predict the future, obviously, or know with 100 per cent certainty that a criminal offence will occur after a transfer. Therefore, the minister really must weigh the evidence and the information that is before him and make a reasonable decision based on that information.
That particular caveat in Bill C-10 was meant to address that to really make clear that the minister is the decision- making authority. He has an obligation to weigh the evidence and information in front of him, but in no way can he make with absolute certainty a declaration that somebody would or would not commit an offence after.
The Chair: Honourable senators, I would remind you that we have Mr. Churney scheduled for another 25 minutes, if you could keep that in mind. We have six senators yet to ask questions.
Mr. Churney, if you could keep that in mind, we certainly want to hear from you, but if you could keep your responses as concise as possible we would appreciate it.
Mr. Churney: Absolutely.
Senator Runciman: It is somewhat surprising that public safety was not explicitly stated as one of the purposes of the act, and now it will be. Some of the court decisions that the senator was referencing I think has drawn attention to the concerns, the ability to deal with situations that could pose societal risks in this country, and I think it is safe to say that in the future public safety will be the most important consideration of the department and the minister under these amendments, if passed.
I do not have a lot to say on this. I think it is the right thing to do, and if you look at the backgrounder on this, these factors would be included: endangering public safety; continuing to engage in criminal activities following his or her transfer; endangering the safety of any child, particularly in the case of offenders who have been convicted of sexual abuse; taking into consideration whether the criminal has been participating in his or her rehabilitation; cooperating with law enforcement.
I think most Canadians would appreciate the fact that the government, the minister, is able to take into consideration those types of issues when having to deal with a request for transfer of a prisoner.
There is no question in my view that this is the right step. One group appearing after you has talked about the lack of options available if someone completes a sentence outside of our jurisdiction. It strikes me that there are still options available under the 810 sections so that if an individual was considered to pose a serious risk there are avenues to address that that remain on the books here.
Mr. Churney: Absolutely. Those options still remain available. For example, the ITOA scheme of course does have a tie-in with the Sex Offender Information Registration Act. If someone receives a sentence for a sex offence abroad and they come back through the ITOA, there is a requirement there as well that they would register and be part of the sex offender registry. All of those other options are still available.
In respect of your first point, the inclusion of public safety I think is consistent with the government's intent to emphasize public safety as the paramount purpose, generally, of much of the legislation that it has passed within the last few years. I think the amendment to the ITOA is consistent with the amendments to the Corrections and Conditional Release Act, for example, and other amendments to the Criminal Code. The act will maintain essentially the dual purpose that it always has, which is the administration of justice as well as essentially a humanitarian purpose to facilitate community reintegration.
Senator Runciman: Under the provisions of the current act, what impact would the concerns of victims have with respect to decision taking? Do they currently play some role in that? Are they a factor, for example, before the court decisions we have seen? Do those concerns have anything?
I was looking at the Albert Walker case a few years ago.
Mr. Churney: Oh, yes.
Senator Runciman: The victims were resident in Canada and were very concerned about the transfer, but apparently their concerns carried no weight and the individual is back in Canada, as we know, and is eligible for parole I think next year. Can you comment on that?
Mr. Churney: Right now the act is silent on victims, so I would say that the minister is certainly free right now to consider victims' interests, and that would really fall under his residual discretion at the moment because the minister is allowed to consider any other factor so long as it is consistent with the principle and purposes of the act. However, what the amendments in Bill C-10 do is specifically articulate that the minister can take into account victims' interests.
The Albert Walker case is a very good example because typically in ITOA cases the victim will be somewhere other than Canada in a foreign jurisdiction, but that case is a reminder that there will be circumstances where the victim is in Canada and that really is a concern that the minister should be able to expressly take into account.
Senator Jaffer: I just want a quick clarification, and you may need help from Ms. Lévesque. I understood your explanation for "shall " and "may, " but from the way I understand "shall, " it is a duty upon the minister. "May " is something he may consider, so it is taken away specifically from the duty of a minister to do something to giving him the discretion that he may consider all the different options. I would like you to comment on why the duty was taken away.
Mr. Churney: Again, I would go back to my previous answer partially to say that in some way the switch in the language from "shall " to "may " was really meant to facilitate the minister's role as a quasi-judicial function. However, but I think the point that I would try to underscore is that irrespective of what factors the minister takes into consideration when he is making the decision after Bill C-10 comes into force, if the minister is minded to make a denial, he must expressly articulate what his reasons are for that decision; and so, in that respect, he must pinpoint in writing the factors that he took into consideration for that particular case and explain the rationale for arriving at his decision.
Even if on occasion that may not be entirely the same as the advice that was given by officials, the minister must always articulate what his reasons were, so that obligation will remain.
Senator Jaffer: What I understand from you is that now the minister will have more discretion than he had before; is that correct?
Mr. Churney: I am not sure that the minister would necessarily have more discretion after the act. I would say that he has a broader decision-making framework post-Bill C-10, but I think the courts have generally been clear that the minister has always had a very broad level of discretion.
[Translation]
Senator Boisvenu: My question has to do with the safety either of victims or of Canadians when offenders are transferred back to Canada to serve the rest of their sentence here. We will obviously have to release them one day. There are 300 or 330 cases of repatriated offenders in Canada per year. Is that the number?
[English]
Mr. Churney: Generally, yes. About 300 or so new applications are received each year.
[Translation]
Senator Boisvenu: Of that number, how many were convicted of crimes of a sexual nature?
[English]
Mr. Churney: I do not have that particular breakdown with me, but I can certainly endeavour to find out for you.
[Translation]
Senator Boisvenu: I would appreciate that. Could you tell me who assesses how dangerous the offender is? Is it Canada or is it the country where the crime was committed and that sends the criminal back to us?
[English]
Mr. Churney: I am sorry; could you repeat the last part of your question, senator?
[Translation]
Senator Boisvenu: Since the legislation is primarily based on the safety of Canadians, who assesses how dangerous offenders are when they ask to serve the rest of their time in Canada and they are transferred back here? Is it Canada or the country that sends the offender back to us?
[English]
Mr. Churney: Thank you. I appreciate that.
I would say that there is a duty and an obligation on both the sentencing country and the receiving country. To the largest extent possible, we make every effort to obtain as much information as we can about the offender serving their foreign sentence elsewhere and information about their program participation, for example, their level of adjustment in the foreign prison, what types of issues they have been dealing with there, whether there are health issues, how well they have gotten along in prison.
Most often times that is not difficult because in the vast majority of cases our clientele are in the United States and so there is obviously a very good rapport between Canada and the United States. However, in some cases, for offenders in faraway jurisdictions, those jurisdictions might not be quite as forthcoming with the information. They might not even keep track of particular information like how an offender is doing in their sentence.
I would say it is not always the same level of information that Canada would receive from foreign jurisdictions, so to an extent, we are limited by the amount of information that Canada receives from other jurisdictions. However, once we receive that information, then Corrections Canada will essentially do a workup for the minister to present a scenario such that if this person is to be transferred to Canada, here is the correctional program we would likely design for this person, these are the kinds of programs we would anticipate that this person would need to enrol in, and hypothetically here is what we think we are looking at if this person were to come. To a large extent there is an obligation on both sides.
[Translation]
Senator Boisvenu: If that person already has a criminal record in Canada for crimes of a sexual nature and he goes to the United States and commits another sex crime, say a rape, which makes him a reoffender, does he have the same chance of coming back to Canada as someone who committed his first crime in the United States? Do we shut the door completely on reoffenders or do we still give them a chance to come back to Canada?
[English]
Mr. Churney: No, the door is not shut entirely. CSC will always try to assess an offender's likelihood for recidivism based on the information available at that time on that person. Again, it is contingent upon the level of information that we are able to receive from the foreign jurisdiction. However, to the greatest extent possible, CSC will try to assess an offender's capability for reintegration and rehabilitation and what their recidivism risk is. That assessment is done as much as possible, but the threat of recidivism itself is not necessarily a bar to a transfer.
Senator Baker: To set the record straight, a minister's decision cannot be overturned by the court in a matter such as this. As I understand it, this is administrative law, which comes under the Federal Courts Act. Under the Federal Courts Act, a minister's decision cannot be overturned. A minister's decision can be referred back to another decision maker for another determination and the judge can ask a different decision maker representing the minister, the minister's designate, for another consideration.
Am I correct that the minister cannot be overruled by the court under any of these restrictions but that the court can keep sending the matter back for redetermination?
Mr. Churney: Yes.
Senator Baker: That is good. I think that is an important consideration. It just struck me a moment ago. We are not dealing with criminal law here; we are dealing with the Federal Courts Act and the Federal Court in which the minister's decision cannot be overturned and replaced with reasoning by a court. They can only refer it back under the Federal Courts rules, with which I am very familiar, for redetermination by another decision maker.
In this instance, then, a report is obviously sent from Correctional Service of Canada up to your office; is that correct?
Mr. Churney: Yes.
Senator Baker: On each person?
Mr. Churney: Yes.
Senator Baker: Each person applies and Corrections Canada sends a report to the minister's office; to you.
Mr. Churney: Yes, it first comes to my unit in the department then onward to the minister's office.
Senator Baker: No, no, not onward. The application goes to the minister's department, then the minister asks for a report from the Correctional Service of Canada, and then it goes back for determination and recommendation from the department to the minister? Is that the procedure?
Mr. Churney: That is very close. The initial application is made directly to Corrections Canada. It will then travel to the Department of Public Safety and then go to the minister's office. The minister renders a decision. If it is a denial and the person objects and files a judicial review, the judicial review requests that the minister re-determine. In that case, we will try to re-prepare the file for the minister, so oftentimes the redetermination could be a few years after the person made their initial application.
Senator Baker: You could have two or three re-determinations.
Mr. Churney: That is right.
Senator Baker: "To enhance public safety, " as Senator Runciman pointed out, is a new addition to the purpose of the act, which is actually the standard by which his reasons are judged, I would imagine, but one would think that previous case law would have determined that the words "contribute to the administration of justice " would actually cover "enhance public safety. "
Mr. Churney: That is correct. Previous case law has made the point that administration of justice does include public safety and security considerations.
Senator Baker: I hope another senator will follow through on the recommendations that go to the minister.
Senator Joyal, if you could when you get to your turn, thank you very much.
Senator Lang: I want to go briefly back to the question of public safety and how the process works. I am aware of at least one case where there was a substantial drug sentence in the United States of America. There was a very short period of the actual sentence served in the United States. The individual was transferred back to Canada and subsequently reoffended with drugs again, here in Canada. It was a substantial cost to the taxpayer, the family and everyone else involved in that unfortunate situation.
There are 300-some-odd applications per year. Can you tell us how many, on average, are approved?
Second, over the past 10 years, how many of these individuals that we have brought back into our penal system have reoffended once released?
Mr. Churney: I have figures from April 1, 2010 to March 31, 2011. Of the 220 cases that were handled by Public Safety Canada, the approval rate was 69 per cent, while 31 per cent were denied. That approval/denial rate has generally been consistent for about the last year or two. That is notionally what the approval/denial rate has been.
I do not have a specific figure in front of me for the reoffending rate, but I have seen the figures previously and it is very small, less than 10 per cent, if not smaller than that.
[Translation]
Senator Boisvenu: Could you please provide us with the rate of recidivism and the rate of reincarceration. The concept of recidivism is very narrow for the government and the Department of Public Safety. I would also like to have the rate of reincarceration.
[English]
Mr. Churney: Absolutely.
The Chair: If you could provide that, that would be appreciated.
Senator Lang: Perhaps when you provide that information you could list, for those who have reoffended, the nature of the offences too. Ten per cent does not sound like much, but of 220 individuals, that represents 22 who have reoffended and caused more problems. This is something that has to be taken into account.
Senator Joyal: Mr. Churney, in reviewing the various elements of the transfer I was surprised to see that in the last years there have been many decisions of the Federal Court ordering federal ministers to reconsider. As a matter of fact, in the last decision, the Goulet decision that I am sure you know, which was given on January 19, the judge mentioned that in the last years there have been 12 cases where the court has reordered the minister, and it is always the same decision: justification, justify. The conclusion of the decision in Goulet states that the minister shall, within 45 days, reassess Mr. Goulet's application for a transfer on the merits and in accordance with the requirements of the act.
It seems that in each case it comes down to that minimal obligation for the minister. The minister cannot say that it will threaten public safety. You could say that of almost any offender. The minister has to specify in which aspect the public safety will be threatened.
The Getkate case, which the bar presented to us, is quite clear.
. . . the Minister's interpretation of a generalized risk to Canadians to be unreasonable, and set aside his decision. The Court held that there must be an actual threat to the security of Canada.
In other words, you have to say in which aspect there is a public safety threat or a threat to a group of Canadians, potential victims and so on.
Why is it that in the last years the Federal Court has had to make so many decisions to compel federal ministers of public safety to give reasons? As you said, the minister is exercising a quasi-judicial function. A quasi-judicial function is reviewable by the court, as Senator Baker said. You prepare the documents for the minister. Why is it that you do not understand what the court is expecting from you, that is, to justify the motive for which a denial should be made?
Mr. Churney: This government has taken a particular path with ITOA. Some of those decisions have been contested in court and, by virtue of that, there has been more recent court activity. To boil down into a couple of sentences generally what the courts have said in respect of the minister's decision making, all of the applications for judicial review have essentially contested the reasonableness of the minister's decision. Some have contested whether section 6, mobility rights under the Charter, are engaged by the ITOA and whether or not someone's rights under section 7, life, liberty and security, are endangered. Those are generally the three highlights of what applicants have contested.
The courts have given guidance to the minister in their recent decisions in terms of what they expect to see in decision making in the minister's letters. However, they pertain exclusively to the minister's decision making letters, not necessarily the file that is prepared by officials, so I would return to the fact that it is not the advice of officials, per se, that is under the court's microscope; it is the minister's decision making.
Again, the courts have given more instruction and precision as to what they expect the minister to articulate in his decision making, and that has been quite helpful.
Senator Joyal: I understand that, but you will understand also that, considering all the other responsibilities of the minister, the minister is not at his desk in the evening trying to read everything, especially with the fairly large numbers that you deal with. There are officers who prepare the elements of a decision and prepare a letter. I have been a minister myself and I have exercised some quasi-judicial power, and what I describe to you is the way it works. The officers of the department prepare the various elements I have to take into consideration before coming to a decision, and when I sign, I sign on the basis of the facts and the expertise that has been given to me.
I do not understand why, with the number of cases in the last years coming from the Federal Court, your service still seems not to have understood that the decision of the minister has to be justified, and not just by stating that an inmate will be a threat to the security of Canada, period. It is more than that according to the 12 decisions of the Federal Court in the last years.
There is something wrong with the interpretation of the act the way it was. With the amendment, proposed section 10(1)(l) would say "any other factor that a Minister considers relevant, " which is an open door to just about anything. That will also come under judicial review and we will be back to square one in getting certainty in how the law will be interpreted.
We are not talking here of public safety but rather of "any factor. "
Mr. Churney: It is any other factor which is consistent with the purposes of the ITOA. So, again, there must always be a causal connection back to those purposes; public safety, administration of justice, rehabilitation, reintegration of the offender. It cannot be anything that the minister wishes; there must be a rational connection back to those purposes.
Senator Fraser: On a point of clarification with regard to Senator Lang's question, I have a letter that the Commissioner of the Correctional Service wrote to the minister dated January 20, 2010. He said that 0.6 per cent of offenders who had been transferred back were readmitted to federal custody within two years following the expiry of their sentence — warrant expiry — which was a grand total of four people, and that 3.4 per cent of offenders were convicted of at least one offence during their release period before warrant expiry.
That is just for the information of committee members.
The Chair: Is that information that can be provided to all senators?
Senator Fraser: Absolutely. It was an access to information request by I know not who, and names of specific offenders have been redacted.
The Chair: All right. Please provide me a copy of that and I will make certain that all senators have it.
Senators, that concludes our time with Mr. Churney.
Thank you so much.
Mr. Churney: Thank you, Mr. Chair and members of the committee.
The Chair: We will continue our consideration of Bill C-10, in particular the portion that relates to proposed amendments to the International Transfer of Offenders Act.
We are very pleased to have with us a panel of three, one of whom is appearing by video conference.
Mr. John Conroy is a lawyer, practising with the firm of Conroy & Company in Abbotsford, B.C. He has primarily been a criminal defence lawyer and has been counsel for many people who have asked to serve their sentences in Canada.
From the Canadian Civil Liberties Association, we have Ms. Natalie Des Rosiers, General Counsel. We also have with us Fannie Lafontaine, a professor from the Faculty of Law at Université Laval. Ms. Lafontaine's areas of expertise are international criminal law, Canadian criminal law and international humanitarian law.
Ms. Lafontaine, if you have an opening statement we would be interested to hear it.
Fannie Lafontaine, Professor, Faculty of Law, Université Laval, as an individual: Thank you for inviting me to appear. It is an honour and a pleasure to join you today. My remarks will be exclusively on some of the legal consequences of the proposed amendments. I will cover only a few points.
[Translation]
My remarks will focus on two main aspects. The first aspect is the impact of the amendments proposed to Bill C-10 on how the Canadian Charter of Rights and Freedoms could apply to the transfer of Canadian offenders detained abroad. The second aspect has to do with the consequences of the International Transfer of Offenders Act being an act implementing international treaties on how the act is interpreted.
First, in a nutshell, in terms of the interaction between the Charter and the act, Canadian case law has not fully addressed the issue of protection afforded by the Charter to Canadian offenders detained abroad.
The Charter might apply and grant rights to Canadians detained abroad in some circumstances, both under section 6 and section 7 of the Canadian Charter. If the Charter applies pursuant to either one of those two sections, the minister will be required to give consideration to some factors.
In my view, by removing the minister's obligation to give consideration to certain factors, such as the rights of the accused, the bill opens the door to costly legal challenges and that is definitely not the main objective of the bill. The unexpected effect of the bill is that, by removing the minister's obligation to consider certain criteria, we might be opening the door to a much larger legal dispute in terms of the Charter and administrative law.
In terms of section 6 of the Charter, everyone is quite familiar with the two opposing trends currently observed in the Federal Court. The legislative summary is a good summary and I will not go into detail. The decision on section 6 is basically before the Supreme Court.
There are two major trends. On the one hand, we have the majority justices, in the Divito case, who say that the transfer act does not violate section 6 because the minister's refusal to agree to the transfer has no causal link with the rights of a foreign offender to enter Canada. The rights come into play because the offender committed criminal offences abroad.
On the other hand, we have the concurring reasons of the judge in the Divito case and in other decisions. The transfer act provides for section 6, and, once the third nation consents to the transfer, the minister has to give consideration to the rights of the accused to enter Canada and to weigh them against other objectives, such as Canada's security.
What we have to understand is that, while the Charter restricts the minister's discretion, by imposing specific criteria that must be considered, such as the right of the accused and Canada's security, the amendments proposed to Bill C-10 leave the door wide open for challenges to the Charter because they make optional all the criteria that the minister must avoid when exercising his discretionary power.
Since the minister will not be required to give consideration to mandatory factors, his decision and the legislative provisions of the act become more susceptible to constitutional challenges. That is the argument for section 6, but I think that the argument for section 7 is even more compelling. So far, the argument for section 7 has not really been described in case law in relation to the transfer act.
Having said that, we have to understand that it is perfectly plausible that a foreign offender detained abroad would invoke section 7 sometime in the future. Would the Charter apply if the third nation agrees to the transfer of a foreign offender detained in inhumane conditions and tortured? In my view, it is quite plausible.
At the very least, it is possible to argue that section 7 comes into play and that the decision of Canadian authorities to refuse the transfer creates a causal link between their decision and the right of the offender being violated. Those principles have been well established by the Supreme Court in the Hape, Suresh and Khadr cases.
If section 7 comes into play — and we can very well imagine those types of scenarios — the minister will be forced to weigh Canada's security against the accused's rights to life, liberty and security.
The current act requires the minister to give consideration to those factors under paragraphs 10(1)(a) and (d). The minister has to consider both the potential threat posed by the transfer of the offender back to Canada and the serious threat of the foreign entity or its prison system on the offender's security and human rights.
That is what I wanted to draw your attention to. By changing the legislative system so as to remove the mandatory nature of the assessment process, the weighing of security and rights, the bill leaves the door wide open for constitutional challenges to both section 6, as I was saying just now, and eventually section 7.
I will not talk about the impacts on administrative law. There are some as well. I think that my colleagues might talk about them. But that is the story with the Charter.
My last point is about an added objective to the act. Section 3 explicitly sets out the objective of public security, which is added to the other objectives for facilitating and administering justice and social reintegration.
I want to bring your attention to the fact that the Transfer of Offenders Act is aimed at implementing international treaties. You have probably noticed that its unabridged title is An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences.
We are talking about legislation for implementing treaties; that is not insignificant. According to the principles of statutory interpretation of international law, implementation legislation must be interpreted with respect to international treaties it aims to implement.
However, the key objective of all the bilateral and multilateral treaties ratified by Canada regarding the transfer of offenders is to rehabilitate offenders and reintegrate them into society.
My point is the following: public security, even if it is added to the legislation, must be interpreted with the treaty objectives in mind. Therefore, public security is understood not only as the security of Canada and individuals, but also as the security of the public as achieved through offender rehabilitation.
I want to conclude my remarks by saying that adding public security is probably pointless, in the sense that it has already been included in the notion of administration of justice. It is also included in the notion of offender rehabilitation. Not only is it perhaps pointless, but above all, as previously mentioned, it opens the door to legal challenges both in judicial review and before the Federal Court. Why? Because it may give the wrong impression that public security is becoming the lone criterion that matters when it comes to Canada's security — terrorist threats, threats to the safety of certain victims — at the expense of a public security system that also includes the rehabilitation and social reintegration of offenders. Those are my two points.
[English]
The Chair: Thank you, Ms. Lafontaine.
Before turning to our other two panellists for opening statements, we would appreciate it if your opening statements could be restricted to the five- to-seven-minute range, which I believe we indicated to you before your appearance here. I know that it is important to get the points out. We have an hour and 15 minutes left for this panel and we want to dedicate as much time as possible to questions.
Without further ado, Ms. Des Rosiers.
[Translation]
Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association: The Canadian Civil Liberties Association is pleased to be here. It has existed since 1964. Our expertise in this context comes from the fact that we are often contacted by the families of people being detained abroad or by the inmates themselves. That is the context for my remarks. You have our brief, which is a comprehensive document on the bill. The part relevant to your study is on pages 16 to 18. Since our time is limited, I will focus on our specific recommendations.
I will work from the premise that there is certainly a strong likelihood of the bill being perceived as a violation of constitutional law under section 6. That is the position we defended in the Divito case, and it possibly relates to section 7. Therefore, that is the context where section 1 will have to be justified. That is what our remarks focus on.
In terms of justification under section 1, the first issue is that limits must be prescribed by the law. Therefore, limits cannot be arbitrary, but must be very explicit. In terms of that, the whole discretionary aspect is worrisome.
Our first recommendation is to remove all reference to the terms "in the minister's opinion. " That kind of language does not properly reflect the uncertainties and requirements of section 1. In a way, this would make it possible to ensure constitutionality, but also transparency. That is often what people who call us are concerned about. We receive calls from families that are wondering what factors are involved, what position to adopt, whether they should talk to journalists or contact ministers and how the transfer of offenders to Canada could be facilitated. Therefore, the discretionary aspect is problematic.
Many of the criteria mentioned are incompatible with the understanding of international treaties, but probably also with the objectives under section 1. For instance, taking into consideration the offenders' acknowledgement of their earlier offences or their cooperation with the police is not compatible with the objectives. That is very dangerous if the offender is held in custody in a system where the procedural requirements are less sophisticated. In my opinion, requiring or asking offenders to sacrifice or to cooperate with the police to ensure their eventual return to Canada almost encourages torture in certain cases and is therefore very dangerous. That is not a good criterion; it is inappropriate and should be removed. It sends the wrong message regarding the presumption of innocence around the world.
Finally, the relevant objectives under section 1 will be the objectives of offender rehabilitation. The idea behind those objectives is that public safety is enhanced through the transfer of offenders to Canada. Once in Canada, offenders are subject to the Canadian system, which makes it somewhat possible to monitor them. That is the relevant context.
I think it is possible to take victims' wishes into consideration in Canada. That is happening when criminals whose release is pending are evaluated by the Parole Board.
I will wrap things up with three points. Let us assume there is a high likelihood that this legislation will be reviewed by the courts under section 1. It will not satisfy the first criterion, which is "prescribed by law. " It will also not satisfy the proportionality tests that are also necessary, since the actual objectives are not well served by the legislation.
[English]
The Chair: Thank you, Ms. Des Rosiers.
For our final opening statement, I will turn to Mr. Conroy.
John Conroy, Lawyer, as an individual: I have been practising law for about 40 years. You introduced me as practising primarily criminal law. I am in the Fraser Valley, which as you know is the Kingston of the West. I am surrounded by prisons, so about 40 per cent of my practice is administrative law.
Senator Baker identified the judicial review in Federal Court as administrative law, and the Supreme Court of Canada set down the test as one of reasonableness in a case called Dunsmuir.
Because of the nature of my practice and where I am located, I have appeared as counsel in about 90 per cent of the judicial review cases under this act, including the recent Goulet decision and the earlier Van Vlymen decision, which said that section 6 of the Charter was applicable.
There seems to be a fundamental misunderstanding of the purpose of this act, and these amendments reflect that misunderstanding by the government giving a politician, a minister, these types of powers purportedly in the interests of public safety. What people seem to be forgetting is that if you do not accept the transfer of an offender because the offender is a Canadian citizen, at a certain point in time before the end of the sentence in the foreign country, the offender will be deported back to Canada; and if deported back to Canada, will be free and clear of any restrictions, including the record in the foreign country, which does not become part of the Canadian criminal record. Denying, I would submit, is not in the interests of public safety because the person will come back to Canada with no information completely unrestricted.
The public safety aspect is to approve a transfer so that our corrections people can get to know this Canadian citizen who has offended abroad; determine the circumstances of the offence, their past record and all the things that the Correctional Service Canada does when somebody is first brought into the reception centre; and then determine their programming, their eligibility dates and so on. The only way then that the person can be released from confinement in Canada after assessment of risk by the Correctional Service Canada is through the Parole Board of Canada. That independent body appointed by the government determines whether the person is an undue risk to reoffend. If released on parole, the offender then remains on parole until warrant expiry, which is longer than if they were deported back at 85 per cent of the sentence, as is usual in the U.S.
I have included in the material I sent not only a recent review by the U.S. Department of Justice Office of the Inspector Generalof the U.S. program, which is somewhat critical of Canada's present approach, but also the submission that I usually make to the minister upon reconsideration pointing out the purposes of the act and everything that Correctional Service Canada does. It points out that in most of these other countries, in the U.S. in particular, reformation and rehabilitation are not a purpose of imprisonment. The purposes of the act cannot be served by leaving somebody in a country that is not interested in trying to reform or rehabilitate a foreign prisoner. That has to take place within our own country.
Public safety involves getting to know the person. I always say that if we have a Canadian citizen terrorist out there, would we not want to arrest that terrorist and bring him into one of our prisons so that we can try to figure out why this Canadian citizen has become a terrorist, or do we want to leave them languishing in some foreign jail to suddenly be deported back free and clear? It simply does not make any sense. These amendments obviously are designed to give the minister broader discretion to deny, not broader discretion to approve. I welcomed them in the sense that they are going to create more work for me and make it easier for me to overturn these decisions in the courts.
A problem that we have experienced is not with the minister needing a broader discretion but with the minister being unable to make a reasonable decision that takes into account the purposes of the act. Why would the reformation and rehabilitation of a prison and their reintegration back into the community be better served by deportation than by bringing them back into our own clutches so that we can try to assess them and determine what risk they present and control that risk until their warrant expires pursuant to the sentence?
I expect that these amendments will be found by courts to not be reasonable limits under section 1 of the Charter, which will make it easier for us to re-establish that section 6 of the Charter applies. The case of Divito seems to be sitting in the Supreme Court of Canada. I do not know if it is being pursued. We really need a decision from that court that takes into account and explains the intent and purpose of this particular act, and whether these factors are reasonable limits.
In my view, I do not know why we need any of these factors at all, whether they are mandatory or permissive. The real purpose is to assess risk and control risk of a Canadian citizen who has offended abroad.
The Chair: Thank you, Mr. Conroy. We will turn to questions from committee members.
Senator Fraser: I am not sure who will want to tackle the answer to this one, but I am a little puzzled by the reference to public safety in the criteria under this bill that the minister may consider, one of them being whether, in the minister's opinion, the offender's return to Canada will endanger public safety, including the safety of any person in Canada who is a victim of an offence committed by the offender or any member of the offender's family or any child in the case of an offender who has been convicted of a sexual offence involving a child.
As you have pointed out, Mr. Conroy, these offenders, as I understand, are going to come back to Canada, particularly if they are in the United States.
Mr. Conroy: Right.
Senator Fraser: The only question is: When? However, let us assume that what this clause of Bill C-10 refers to endangerment of public safety in Canada during the sentence. They are being transferred back here to go to prison, so I am at a loss to understand how public safety, particularly, for example, of a child, will be endangered if they are being sent back here to prison. This sounds as if I am asking for somebody to say, you are right; but I would like some legal opinion. Is there jurisprudence on the concept of public safety that I should know about but do not know about?
Ms. Des Rosiers: In our submission, we suggest that there be a clarification on that point. We suggest that we make sure that those factors are limited to criminal activity and safety concern arising specifically due to incarceration in Canada. That needs to be clarified. Otherwise it looks like it is a matter of public safety in a larger context, which would be post-release. That is not relevant for the purposes of this proposed legislation. Those are in the submission. It is a little misleading and will be misleading to the public when a minister makes a decision when the language is so ambiguous in the legislation. Our suggestion is that it be clarified as to public safety concern relating to incarceration in Canada.
The other considerations, which are the safety of family members and so on, certainly are relevant in the decision to release someone on parole. We certainly support the fact that family should be a prime consideration. However, that is not the purpose of this bill.
Ms. Lafontaine: In addition to what Ms. Des Rosiers said, for the children and other family members it is a little more difficult to see the purpose, particularly because the safety of Canada or of the public is only concerned during the sentence; and the jurisprudence is clear on this.
As to the other elements, if there is a risk of terrorism offences, the jurisprudence refers to the links that the accused can have with international networks and, for instance, putting prison guards at risk.
It has been referred to and I could find a case here as to exceptional cases where the safety of the Canadian public or of Canada would be at risk during the sentence. As you mentioned and as Mr. Conroy said, after his time or her time has been served abroad, he or she has a right to come back to Canada, and will. That is my submission.
Senator Fraser: Mr. Conroy, did you want to add anything?
Mr. Conroy: When a person comes back on a transfer, they are treated exactly the same way as anybody who has been sent to the federal system who has just been sentenced by our courts. They come to the same reception centre and they go through exactly the same procedure. That is the puzzling thing.
How is the minister better equipped to determine whether or not somebody is a risk to the public, as opposed to the Correctional Service of Canada that gathers far more information than we ever get from the Americans, and then the National Parole Board that has the specific mandate to try and assess risk to reoffend and impose conditions and so on and so forth? It just does not make any sense to have a minister make those decisions. It appears as if he lacks faith in his own ministry. He is responsible for the Correctional Service of Canada. He is responsible for the Parole Board of Canada. Why would the minister want to do it with such flimsy guidelines and criteria, having legislated their powers to assess risk and control with none of the same information and so on?
In fact, most of the time the courts are setting aside his decisions as unreasonable because he is not accepting the recommendations of his own ministry. His findings are contrary to what the Correctional Service of Canada has put forward and are inconsistent with them.
Senator Runciman: Senator Fraser was talking about why they would care because these individuals are going to be incarcerated once they return to Canada. Perhaps that is only one element of their desire to return to Canada, but they can possibly be out on the street a lot faster than they could be in other jurisdictions.
Ms. Des Rosiers, you talked about the value of victims having input into the process. I cited earlier, and I am not sure if you were here or not, the Albert Walker case, where the daughter of the family certainly expressed very serious reservations about the transfer occurring but had no impact at all. Of course he will be eligible for parole next year. That is certainly from a victim's perspective, in looking at the ability to apply for parole at perhaps a much earlier date than they would in other jurisdictions. Again, of course the parole board has to make those decisions ultimately.
I believe, Ms. Lafontaine, you mentioned Khadr in your submission. I am wondering about that situation. Certainly he is held in that system. I am not sure what you would call that system. I just read this recently and do not know whether it is accurate or not: If or when he returns to Canada he will be immediately able to apply for parole, given the amount of time he has been incarcerated. Is that accurate?
Ms. Lafontaine: First, there are different issues depending how long he stays. Now he is in Guantanamo for eight years. Depending on when he comes back, how long the minister takes to make the decision, whether he is returned or not, then that will impact on when he can actually apply for parole. Having said that, I believe you know the criteria that guide parole decisions.
I refer to Khadr, though, not so much as to the current situation but as to the transfer in respect of the Supreme Court's decision, which said that there might be a causal link between actions of Canadian officials here in Canada concerning rights of detained persons abroad. That was my submission about Khadr. It was not necessarily about his current transfer.
Senator Runciman: Mr. Conroy, I am not questioning that there are valid concerns about the ability to access CPIC and deal with offenders prior to release if they are back in Canada. However, you suggested there is no recourse. We had an official here from the ministry earlier. There is access to the 810 sections in the Criminal Code. If an individual was deemed to pose a serious risk to public safety an application could be made under those sections of the Criminal Code. Do you agree with that?
Mr. Conroy: Certainly once in a while I have seen that occur, so you have to make sure that the local Crown counsel knows that this person is imminently about to come back to Canada so they can gather the information in order to make the application.
You have to understand that when the prisoner applies for transfer his sentence is converted to a Canadian sentence. He has set eligibility dates like any Canadian prisoner. Just because you are eligible for parole does not mean you are entitled to it, and the National Parole Board is not going to release somebody who they think is an undue risk to reoffend. It certainly presents a risk to any victim. They are very mindful and concerned about the impact on rights of victims.
The person does not have to apply for parole. It will be an automatic review at one third for full parole. If turned down, then the next date is at two thirds, which would be one's statutory release, formally mandatory supervision, so you are supervised for the last third. The whole idea in Canada is that instead of unlocking the door and kicking the person out, there is some period of gradual release to control them in order to protect the public. The prisoner who comes back on the transfer could be detained at two thirds if still considered a risk, right until warrant expiry, which is longer than if they were deported back.
You have to understand, just because you are eligible for parole does not mean you are going to get out on parole. If you do get out on parole because they have determined you are not an undue risk. The parolee is a puppet on a string and subject to being suspended, not only by committing a new offence or breaching a condition but in anticipation of that as well.
Senator Runciman: I appreciate all that. I was simply trying to make the point that there are options available beyond. You indicated there were not.
Mr. Conroy: However, they are not effective. They are not as effective, sir, as the supervision of the Correctional Services of Canada.
Senator Runciman: My point was you were indicating there were no options and there are options.
Ms. Des Rosiers — and I know there are broader concerns about the legislation — I just wanted to put a comment out here from the Alberta Court of Appeal in the Arcand case of 2010. This is a case where a trial judge gave a man a 90-day intermittent sentence for raping an unconscious girl. The court said that one of the greatest threats to justice in Canada is the lack of uniform sentences, and the court talked the problems caused by judge shopping. I will quote from the court.
Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility. The final truth. If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.
I take it you disagree with that?
Ms. Des Rosiers: Not if it is done in the appropriate way. What we suggested was that if you want uniformity or clarity or transparency in sentencing there are mechanisms that are more appropriate. There are some directives to Crown attorneys we have talked about. There is judicial education that has occurred in sexual assaults, for example, that led to good results. It is in that context that we were making these comments.
Even if you go after a minimum sentence, we have made some suggestions to tweak some of the factors you are considering. I am happy to see that you will consider them. Overall I certainly think we have some concerns, but it is only for a certain number of crimes that you are moving forward anyway. I think it is incompatible with our system to diminish the ability to individualize sentencing. It is not taking criminal justice seriously if you do minimize this aspect.
Senator Baker: Mr. Chair, I would like to congratulate each one of the witnesses for their writings and for their great contribution to the subject that is under review, but especially I would like to congratulate John Conroy. He has won more than he has lost, and I find that that is incredible under the rules of the Federal Court.
Let me ask this question that has really been bothering me for some time, Mr. Conroy. Some of us read the Federal Court Rules on a regular basis and the changes that take place. Someone who is appealing a ministerial decision under this bill would hire you and you would contest it before the Federal Court as the court of exclusive jurisdiction in matters. Much of the evidence would be by affidavit. They could be protracted proceedings if the Attorney General wishes to really fight you on the matter. You would have a hearing before a prothonotary and before the judge. In the end, if you lose, you most likely will have to pay the costs associated with the proceeding. Well, Mr. Conroy, this could amount to a considerable sum of money. You will have to pay for the entire thing.
Does the Attorney General, Department of Justice, fight you, actively or over-actively, on these appeals to ministerial decisions; or do you find them really cooperative, disclosing all information according to the criminal standard; or are these proceedings protracted and you have to pay a lot of costs if you lose at the end?
Mr. Conroy: The potential to have to pay the cost is always there. Most often many of the people who lose are not in a position to afford to pay the costs and are still languishing in the foreign prison. For those who succeed, the government has to pay the cost. One must understand that you apply for judicial review and one of the problems is that the procedure in Federal Court can take up to 120 days before you can apply for a hearing date. It then seems to take another five or six months to get a hearing date. I have a case, Tangorra, which was recently decided by Justice O'Reilly. He is denied. We go to court, the decision is set aside as unreasonable, and it takes us 10 or 15 months to get to the court and get a decision and then the minister re-denies it. We have to start all over again because, once again, the minister's decision is still unreasonable; it still does not address the purposes of sentencing and the purposes of imprisonment and release according to the Canadian standard.
This thing can go on and on and on. I have to admit that I am looking at all sorts of ways to try to see if I can use habeas corpus in the provincial superior courts as a much more expeditious way of getting to court at an earlier time in order to be able to have the liberty of the citizen passed upon by a court of law instead of how long and how costly it can be in the Federal Court.
Senator Baker: You have not answered my question, though. It was this: What is the attitude of the Crown in these matters?
Mr. Conroy: I am sorry. The Crown is, I understand, always instructed by the minister's office to fight these cases vigorously. I have no criticism of them as individuals. The Correctional Service of Canada, as I said before, is quite good at ensuring that when they do their assessment, they do provide as much information as possible with respect to the risk to reoffend and with respect to the various factors that are set out in the act. I have little criticism of the Correctional Service of Canada or of the lawyers at the Department of Justice. They are instructed by the minister's office to fight these things tooth and nail.
Senator Baker: Do you have many motions to strike from the Crown?
Mr. Conroy: No, we do not see that very often in these procedures because it is a straight judicial review. We apply for all of the materials that were before the minister under rule 318. Everything that has been before the minister comes and is before the court, as well as the affidavit from the applicant. Usually, there is an affidavit from a representative at the Department of Justice, often putting in all the various treaties and other factors so that the court has the broader context. It is the Correctional Service of Canada material that is the critical material. It is not like a civil suit; it is a motion or a petition type of process.
Senator Baker: Do you find —
The Chair: Senator Baker, I am sorry. I suspect you do have further questions that we could move to the second round. I want to ensure that every senator has a chance on the first round to ask a question.
[Translation]
Senator Boisvenu: I do not know who here talked about Pierino Divito's case, which really went down in Canadian history during the 2000s. I just want to remind you that Divito was convicted in Canada, but was then extradited to the United States, in 2005.
Divito set up one of the biggest cocaine trafficking networks in Canada. He exported 10,000 pounds of cocaine. That was clearly not for his personal use. His sentence is actually ending this year, in 2012.
He was extradited to the U.S. because he had also committed crimes there. He began his criminal career in 1963 — he was involved in prostitution, possession of illegal weapons, traffic, and so on — and was arrested in the 2000s.
I think that your association condemned Canada, saying that Divito's rights were not actually respected. You defended him.
Ms. Des Rosiers: The Canadian Civil Liberties Association aims to ensure that Canadian law remains consistent with the Charter. We do not defend specific individuals. That is our mandate.
What we have to keep in mind is consideration for Canadians, and that is something of a problem with this bill. We are accountable to Canada and Canadians. Some of them do good things, and some of them do bad things. When they do bad things, we try to reform them, to send them to prison so that they can pay their debt to society.
Perhaps this is unfortunate, but Mr. Divito is a Canadian. In any case, Mr. Divito will return to Canada.
Senator Boisvenu: So you defend the Charter of Rights and Freedoms?
Ms. Des Rosiers: We defend democratic principles.
Senator Boisvenu: The Charter of Rights and Freedoms also contains a provision on the right to security.
Ms. Des Rosiers: Yes, human safety.
Senator Boisvenu: In listening to you — and correct me if I am wrong — I somewhat get the feeling that you place more importance on criminals' rights to return to our cushy prisons here in Canada than on the protection of Canadians.
Mr. Divito is a good example of someone who should not be brought back. I am trying to figure out, based on your remarks, how you define the balance between the duty to ensure public safety and the duty to defend a criminal like Divito.
Ms. Des Rosiers: Public safety will be at risk if we allow individuals to return to Canada without any restrictions. That is why we must ask ourselves whether Canadians will be better protected by a system that does not provide for any monitoring or control whatsoever.
Regardless of the individual, the problem, as I see it, is not allowing Mr. Divito to come back — he will do that in any case — but rather ensuring that the system puts the necessary controls in place to monitor him appropriately.
Senator Boisvenu: I would like you to check your records because someone from your association said that Ottawa was denying this criminal his rights. I would like you to look into that and follow up with the committee as to whether one of your people made that statement.
Ms. Des Rosiers: I would be happy to.
[English]
Senator Joyal: I have listened to you carefully, Mr. Conroy, Ms. Lafontaine and Ms. Des Rosiers. If I understand your interpretation, the fact that the amendments remove the word "shall " and substitute the word "may " widens the discretion of the minister to accept or not to accept a transfer. Also, by virtue of the fact that the amendments remove the rights of the offender as they are now at 10(3)(b) — you know the section — will those amendments provide an easier way for the court to impose on the minister the obligation to justify his decision, while in fact with the discretion being widened, the court will be more attentive to see deeper how that discretion is exercised than when that discretion is framed by legislative criteria that are compelling by the word "shall "? I do not know if I put my question in clear terms for you to comment.
Mr. Conroy: I have always had difficulty with the word "shall " in relation to the existing factors, because it always struck me as: Why are they relevant when we are trying to look at enabling a transfer for the purposes of reformation and rehabilitation? Now, to make them permissive, certainly broadens the scope for the minister. However, we always still have to come back to: Is he able to make a reasonable decision, whether it is a mandatory factor he has to consider or a permissive factor? These amendments introduce further relevant topics that we will want more information and disclosure on.
I foresee the minister having an even more difficult time making reasonable decisions because he is being given such a broad mandate, but it is a broader mandate that still is subject to the rule of law, to judicial review, and to the tests of reasonableness. That is where the problem lies. I think that with these amendments, the minister may well shoot himself in the foot.
[Translation]
Senator Joyal: Would Ms. Lafontaine like to comment as well?
Ms. Lafontaine: Indeed, it is unique. I agree with Mr. Conroy on that. In reality, the amendment complicates judicial review by creating confusion around the criteria to be considered. It is important to understand that current case law forces the minister to justify his decision on the grounds of all the criteria that must be considered. This legislation, however, allows the minister to consider what he pleases. Not only does this change make the judicial review process more complicated, but it also makes it more enticing for people to file legal challenges: clear parameters do not necessarily govern the minister's discretion, so it can more easily be called into question.
In my view, this may have a dual effect in that it could increase the likelihood of legal disputes as far as judicial review goes, precisely because the consideration criteria are being made more confusing, not to mention the constitutional obligation under the Charter of having to consider certain criteria. Since the legislation no longer requires the minister to take those criteria into account, it will lead to even more problems, in my opinion.
[English]
Senator Joyal: Mr. Conroy, you were the lawyer in the Goulet case, which I quoted before. Why, in your opinion, did the justice who gave the decision quote all the 12 cases in the last years whereby Canadian courts have continuously contended that the minister has to justify in detail, and not just by a mere broad statement, a threat to security or public safety? Why, in your opinion, did the justice in that case pin down the fact that in the last years the successive ministers have not really respected the objective of the act?
Mr. Conroy: That is the problem. The court in Goulet is saying, "Look, time and again we are setting aside your decision as unreasonable. Why can you not make a reasonable decision? You have made another unreasonable decision. "
Typically, the first paragraph of the minister's decision is boilerplate and sets out the purposes of act. The next couple of paragraphs of his decision deal with the circumstances of the offence. Once in a while he makes a reference to social and family ties or other factors. Then the concluding paragraph again is usually boilerplate, where the minister simply says, "Based on these facts, I do not believe that the purposes of the act will be served. "
However, he never deals with what happens when a person comes to Canada and how they are dealt with by his own ministry, the Correctional Service of Canada, and then the parole board. He does not deal with that in terms of reformation, rehabilitation and reintegration, nor does he deal with what will happen if the person is left in the foreign country. He never explains his reasoning in the context of the purpose of the act.
Therefore, no matter how many extra provisions you put in and no matter how broad they are, he still needs to come back to the fact that the purpose of the act is to enable transfers for the purposes of the reformation, rehabilitation and reintegration, a recognition by Parliament that that is a better way to protect the public than to simply let them come back and be deported back, free and clear.
[Translation]
Senator Dagenais: My question is for Ms. Des Rosiers, but first I want to make a comment. I read your brief. You refer frequently to the Supreme Court. You also mention the principles pertaining to minimum sentencing, including as it relates to importing narcotics, a crime that is largely responsible for getting youth involved in criminal activities in the first place, as you know. That leaves me a bit puzzled.
That being said, further on in your brief, you say that mandatory minimum sentencing does not necessarily provide a safety valve in cases where the required sentence would be disproportionate. That comes just after the statement that the mandatory minimum sentences proposed in Bill C-10 are shorter than what the court was considering in the Smith decision. I do not want to think you are objecting simply for the sake of opposing any kind of legislative reform. I would like you to elaborate on these statements as they strike me as somewhat inconsistent.
Ms. Des Rosiers: I want to be sure I answer your question accurately. The purpose of the brief, obviously, is somewhat outside what you are interested in here. The purpose is to identify the areas where the bill could have constitutional vulnerabilities. We are trying to be informative and, in doing so, draw attention to the fact that there may be problems. It is the duty of the Parliament of Canada, which includes both the House of Commons and the Senate, to prevent the passage of bills that could give rise to constitutional issues, because ultimately that creates more problems than it solves. Basically, that is our goal. We want to point out the fact that the bill may raise some questions and share with you which ones we think are likely to arise. If you are satisfied that other criteria will address the shortcomings, it is your duty to ensure that the legislation adheres to the Constitution; that is our goal here.
Senator Dagenais: Mr. Chair, if I may, I would like to ask one other thing very quickly to make sure I understand. Does the Charter apply in the same manner to individuals who have been convicted or charged?
Ms. Des Rosiers: It applies to everyone in Canada. In many cases, it even applies outside Canada in situations where there may have been wrongdoing on the part of the Canadian government. Yes, of course, the rights are different, but they apply to you, to me and to everyone in Canada.
Senator Dagenais: Thank you, Mr. Chair.
Senator Boisvenu: Ms. Lafontaine, in your brief, I was surprised that you used the word "accused " in reference to people that were being brought or transferred to Canada. You used it four times. Look at the individuals brought back under that program; they were all found guilty, were they not?
Ms. Lafontaine: I do not have the exact wording here, but if that is the case, in light of the context, it is indeed an error that was made late last night. The fact is you are right; they are convicted offenders, not people who have been accused. I apologize for the error.
Senator Boisvenu: I thought I misunderstood.
Senator Chaput: My question is a bit on the theoretical side. I would say that, although it may not be perfect, our justice system here in Canada is still very solid and adheres to the principles of fundamental justice.
In the administration of that justice system, a series of factors come into play, obligations, treaties, public safety and so forth. It is completely appropriate that a certain balance would exist between the justice system and its administration, in that everything should be taken into consideration and each party should have an obligation to fulfill.
What has struck me since we began studying Bill C-10 is that, on one hand, it enhances the minister's discretionary power and, on the other hand, removes or diminishes judges' authority.
Are we introducing a certain imbalance into Canada's justice system with the proposed amendments?
Ms. Des Rosiers: That was one of the issues raised in correspondence with the public. Generally speaking, people do not want political decisions on matters that pertain to individuals. Clearly, the people we are talking about here are not popular with the public. As a general rule, then, our system requires that a more objective regime deal with these matters. That is why the responsibility falls on judges, who, unmotivated by politics, examine the evidence in coming to a determination. They are not elected officials, so they are not concerned with whether the decision is popular or not. Their job is to weigh the evidence to figure out precisely what the risk to the person is, and then make a decision.
On the whole, governments are better off making political decisions in situations when it is truly appropriate, not when the substance of those decisions could call into question their legitimacy.
For instance, we received a letter from someone asking whether the new legislation meant that if you wanted to help a family member incarcerated in Mexico or elsewhere, you would have to mount a publicity campaign or donate to a specific political party in order to influence the level of intervention.
We really do not want to go down that road in Canada. Nor do we want the public to even have to wonder about that. Our preference is to have clear criteria that are in line with international law and all the considerations it entails, so questions of that sort never have to be asked.
Ms. Lafontaine: It is important to remember something, and this is one of the points I was trying to make. This may not have been one of the bill's intended objectives, but it definitely has an effect. Power is not being taken away from the courts. On the contrary, the courts retain the ability to conduct a judicial review of the reasonableness of the decision and its legitimacy under the Charter. The bill may, however, open up the door to legal disputes and to more cases being brought before the courts. But the fact that discretion is defined differently does not take powers away from the courts. That is for sure.
But what it does do is remove clear criteria to guide the minister in exercising his discretion, and that creates a political problem. As far as judicial review is concerned, though, the courts are not losing any authority. Their role is to safeguard the Constitution and to prevent abuses of political power, but this bill could open the floodgates to legal challenges.
[English]
Senator Chaput: Mr. Conroy, do you have anything to add?
Mr. Conroy: On this question of whether the power will be taken away from the courts?
Senator Chaput: Yes.
Mr. Conroy: I agree that the power will not be taken away from the courts. The courts will still be there to do judicial review. Again, it comes back to whether or not the minister makes a "reasonable " decision, as that term is used in law. That is an intelligible, rational explanation that people can understand. That is where the problem lies.
Therefore we say, giving broader discretion will result, undoubtedly, in more challenges unless and until he learns how to make a reasonable decision, within the meaning of that term as a matter of law.
Similarly, there will be further opportunities to re-litigate the section 6 issue, which is a right that citizens have. It is peculiar to citizens in the Charter, this right of entry and return to Canada, and section 7 of the Charter, which is not limited to substantive matters. It also involves procedural fairness, trying to ensure that the minister or representatives of the minister disclose fully to the person whose is affected the case against them, so that they can have a fair opportunity to respond. That is a constitutional principle under section 7 of our Charter.
Senator Lang: I am not a lawyer. I do not know if that is a plus or a minus, but I like to think I have common sense.
I perhaps reflect what some of the viewers here are thinking as they watch the debate that goes on with respect to transferring prisoners who have obviously consciously broken the law in another country, in many cases knowing what the consequences for their actions will be if they do break those laws, and in most cases it is in the United States. They are obviously a lot stricter with their sentencing, especially when you get into robbery with violence, murder, all these very violent types of crimes. As Mr. Conroy pointed out, they generally have to do at least to 85 per cent of their sentence, which is substantial — 10 to 15 years. That is unlike here, as Senator Runciman pointed out, if you come back to Canada you might do five years for the same offence.
One has to wonder how fair that is in respect of the system if you believe in the fact that there are consequences to the actions that you have taken.
I have a concern. I think this has not been voiced here but it has been mentioned. I would like to hear comments from the witnesses on this. If I rob a bank in the States and I do my 10 years, and then I just come across the line as a Canadian citizen and there is nothing on my record at all, I find that unbelievable. I would say that maybe we should be looking at legislation that would require at least that the public authorities be known and that be noted on an individual's record so that if something does happen later on that it is taken into account. I would like to hear your comments on that.
Mr. Conroy: If you are asking me, in order to make it part of the Canadian police information computer, CPIC as we call it, it has to be part of the criminal record under the Criminal Records Act, Parliament's legislation. You would have to amend the Criminal Records Act in some way.
However, with the data bases that exist nowadays, it is not difficult to determine whether someone has a record in a foreign country, it is just that it will not be part of that data base that the police officer, in his car checking someone, pulls up. They will not see the converted sentence. That is where that problem lies.
If you were contemplating trying to make the foreign offence part of the Canadian criminal record, you would have to probably amend the Criminal Records Act to try and accomplish that.
Senator Lang: Do you think we should?
Mr. Conroy: No. Again, if you are talking about public safety, you take the robber who would otherwise, as you point out and say it is in the United States, serve 85 per cent of his sentence, it is more in the public interest in terms of public safety to get that person back, remembering that the country in which he has done the crime is consenting to the transfer usually. There are exceptions to that if it is Japan, for example, where the Canadian decision has to come first. However, in an American situation, usually the country is saying we consent to the prisoner going back and so Canada has to say, in my submission, we want him back in order to reform and rehabilitate him so that the public is safe by the time he gets to the end of the sentence. That is more important than simply knowing whether he has a criminal record or not in a foreign country, in my opinion.
Senator Lang: With all due respect, if you were to use that logic, then we should not have a database for the authorities for those who have committed the same crime in Canada. There is a reason for that database, and that is to give the enforcement officers at least a background on individuals who they are being asked to interview in a situation where maybe a crime has been committed.
Is there a loophole in the law? Why would I have to be on the database if I have done my 10 years here on the crime that I talked about, yet I come from the United States with the same crime and I am not on the database here? I would think that common sense says you should be there.
Mr. Conroy: Well, you are there if your sentence is converted to a Canadian offence and sentence and it then becomes part of your Canadian record, but you are not there if you are deported.
The Chair: Mr. Conroy, I direct my first question to you. You, as have the other panellists, have referred to the constitutionality of the act and the proposed amendments. I just want to make sure that I am clear in understanding where the law is at today. It is not unusual for us to hear that with any proposed change to legislation that there could be a challenge under the Charter. That is fine. That could happen. It is up to us, of course, to judge the credibility of the objection, and we certainly will listen to what each of you have said in that regard.
However, it is my understanding that today the constitutionality of the act has been challenged in the court, in particular section 6(1) of the Charter that you referred to earlier, and there have been a number of decisions by both the Federal Court and the Federal Court of Appeal that have ruled the act is constitutional. I want to establish if I am correct in that. I realize beyond that there is consideration of this bill, but I just want to make sure there is not confusion on that point. That issue has been dealt with.
Mr. Conroy: It is a bit confused in the cases, but Divito is the leading case from the Federal Court of Appeal. It is a bit confusing because there are three judgments and a couple of interpretations of it, but there is no doubt that section 6 is engaged in the sense that it involves a person trying to come back to Canada, but the court ruled that the International Transfer of Offenders Act is a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society, and that is under section 1 of the Charter. That is where section 6 sits at the moment, and we were hoping that the Supreme Court of Canada would pass upon that in the Divito case, but it does not seem like that case is being pressed forward so we will have the opinion of the court.
However, there is lots of case law in Canada that a minister making a decision under a public statute must comply with the Charter, and so the decision, as I say, in context involves section 6, but as Ms. Des Rosiers I think pointed out, section 7 of the Charter provides that everyone, not just citizens, have the right to life, liberty and the security of their persons and the right not to be deprived thereof except in accordance with principles of fundamental justice, and so those principles of fundamental justice still come into play in relation to a minister's decision under this act whether it be for substantive reasons or procedural fairness reasons.
The Chair: That process of ministerial discretion which is in the act today, my point would be that issue has been considered by the Federal Court and the Federal Court of Appeal in terms of its constitutionality and it has been considered to be constitutional; is that correct?
Mr. Conroy: Yes, and my point is that these amendments, when we come to consider the factors and the reasonableness under section 1, the court is more likely to find these to be unreasonable and therefore they will not be upheld as reasonable limits on the section 6 right because they are too broad and unreasonable.
The Chair: I appreciate that. I just want to make certain that applying the case law that exists to date to the amendments, that that is a fair comparison, so that is fine.
My other question will be directed to Ms. Lafontaine and Ms. Des Rosiers. I listened to the comments and some of the criticisms of the exercise of ministerial discretion that is contained within the proposed amendments. When I hear the reasons why the exercise of that discretion is inappropriate or unfair or maybe unlawful, what rings in my ear are all the arguments we have heard why ministerial discretion is so appropriate.
I know in many bills that we have had before us, when there have been suggestions in the bill or it has been part of a bill that ministerial discretion be restricted and that, in particular, reference to factors that are to be considered in the use of that discretion, we have heard all the arguments why that should not be the case. I can think of an example we had recently when we considered the production of documents in sexual offence proceedings, where factors that the court judges to consider are in the act, are in the code, but we should not restrict those because the judge is there, the judge is familiar with the facts of that case and should use his or her discretion.
Similarly, in the case of this act, the case of these amendments, why is it not appropriate for the minister to similarly exercise his discretion? He is the one familiar with the facts. He has all of that presented to him, so why is it inappropriate for the minister — the elected official, elected by the people, who has the ultimate responsibility for the act — to exercise that discretion when seemingly the same logic does not apply to the court, in particular where the minister is required to give reasons for his judgment? He cannot just say no. He has to give reasons, as is required of the court. Why is there a difference in those two circumstances?
Ms. Des Rosiers: I think one of the questions is whether all the criteria are appropriate in light of the objective, and I think that is one of the criteria. For example, I suggested that cooperation with the authorities is a dangerous criterion for the reasons that I have explained. It is dangerous internationally to do this, so that is one of the issues.
I want to make sure also that there is no confusion on this point. People do not arrive and change their sentences. The remainder of the sentence is what they are going to serve in Canada. It is not a new sentence, a shorter sentence. It is the remainder of the sentence.
Senator Lang: However, they serve a lot less.
Ms. Des Rosiers: It depends. I just wanted to clarify this.
The Chair: Sure.
Ms. Des Rosiers: We have no objections with the minister faithfully explaining how he reached his decision. He or she must do it, which is reasonable, but the criteria has to be compatible with the act, and that is where it is a little bit difficult because some of these criteria do not seem to support the purpose of the act.
It is not an advantage. The act was not designed to give a goodie to bad people outside of Canada who want to come back. It is an international agreement because countries realize that it is better for all of them to have their offenders housed and looked after in the countries in which they will likely live thereafter. Maybe I am not answering the question.
The Chair: No, you are. Just to that point, do I take from that that you are suggesting that the safety of a victim, the safety of the offender's family, the safety of the child are not relevant?
Ms. Des Rosiers: They are.
The Chair: Are not relevant for the purposes of the act?
Mr. Conroy: No.
Ms. Des Rosiers: Go ahead, Mr. Conroy. Maybe I am not explaining —
Mr. Conroy: The relevant —
The Chair: Sorry, Mr. Conroy, not to cut you off, but I am directing it to Ms. Lafontaine and Ms. Des Rosiers. I am taking more time than I should, but it is important to me.
Ms. Des Rosiers: During the incarceration of the offender, the safety of the child is not irrelevant; he will be incarcerated. That is the issue. That is the point. That is what is interesting here. It is not at large whether this is a good person, whether we like him or whether he is a good Canadian. It is not that. It is whether or not it is better for the safety of Canada to comply with this international agreement, which is reciprocal, to the extent that they will be housed here, supervised here and released under terms that we know. I think that is a slightly different nuance.
The Chair: Ms. Lafontaine, if you have a quick response, I would appreciate it.
Ms. Lafontaine: Your point is good as to discretionary power. Some arguments are that the discretion is full and there is no criteria guiding it.
It remains a very broad discretionary power. Even under the current legislation, it is a broad discretionary power. This is totally in conformity with the international treaties that it aims at implementing.
I think the point of having criteria that the minister must consider is the fact that this is safer for him. It is safer on judicial review. That is my point. I think it could be a very broad discretionary power without any criteria to guide it. The advantage of having some criteria, notably the rights of the accused abroad and the security of Canada, is an extra safeguard for the minister's decision.
The Chair: Thank you very much for that.
[Translation]
Senator Fraser: Ms. Des Rosiers, you recommend removing criterion (i), which reads as follows:
(i) whether the offender has accepted responsibility for the offence . . . including by acknowledging the harm done to victims and to the community;
To the average person, that would seem to be a perfectly reasonable requirement. Why do you feel it should be removed?
Ms. Des Rosiers: The danger here is that it is not a popularity contest to come back to Canada. That is the part that is a bit troubling. You must put it in a context where people are being incarcerated in regimes where their family and the Canadian government want to ensure they are being treated fairly.
You have to consider the presumption of innocence. Imagine someone who is in Mexico or some other country and, despite proclaiming their innocence, is still found guilty. It happens. Even in Canada, innocent people are found guilty, and it can happen in other regimes as well. The person is being forced into pleading guilty or acknowledging their guilt even if they are innocent; otherwise, they will not receive consideration under this legislation. That is what we find troubling.
In some countries, the presumption of innocence exists on paper, but not in reality. There is considerable pressure on people to plead guilty in situations where they are not. We are saying be careful. This criterion is not really necessary. It is not necessary for the minister to exercise his discretion if the only important factor is the public's safety. It is not necessary to know whether the person is good or bad. Is the guy popular or not? Did he acknowledge his guilt in this situation?
It is also very perilous to talk about collaboration with the police. There are scores of Amnesty International reports that refer to the fact that police officers in certain countries are corrupt or accept bribes. We do not want to put ourselves in a position where we are, to some extent, being indifferent to what goes on around the world. The world is a big place. When this legislation is passed, it will be interpreted for all the prisoners around the world.
[English]
Senator Fraser: Thank you very much. It is a useful reminder that this is not just about the United States; it is also about some iffy countries.
Senator Jaffer: Mr. Conroy, for me, the elephant in the room is that people will be brought here and will serve lesser sentences. They will have fewer years to serve if they are brought to Canada, and that is why it is better to leave them in the country in which they have been convicted.
You have been doing this work for a very long time. This has been brought up many times today, but I would like point form from you what the benefits for Canadians are to have control over this person who has been convicted in another country come and serve the rest of his time here.
Mr. Conroy: If you look at the submission that I sent in, my submission to the minister when he is reconsidering a case, you will see everything there in point form. It is an eight-page letter. It is too much detail for me to give you right away.
However, as I have said before, it is just the same as anybody being sentenced in Canada. We have professionals who then assess this person, get to know them, assess their risk and deal with all of these factors that you have in the act. They are dealt with by the Correctional Service of Canada and then by the National Parole Board to protect citizens in terms of the risk of this person to reoffend and to control them until warrant expiry. If you leave them in the other country and they are deported back, none of that occurs.
You have a gut reaction type of an emotional decision by a politician or a minister as opposed to a reasoned, logical, rational decision by a professional who is in the business of assessing risk to reoffend.
Senator Jaffer: If we bring that person here, we then have the ability to supervise them and reintegrate them into society, which we would lose if we did not do that. Is that right?
Mr. Conroy: Exactly. It is just like they are being sentenced by one of our courts. They come here and they go straight to a reception centre just the same way as somebody sentenced to any sentence in excess of two years in Canada. They are assessed by the same people who assess people who commit offences in Canada, right through the Correctional Service of Canada up until they are released, which, as I pointed out, we have provisions in our legislation where we can keep a person right until warrant expiry if we think that is necessary to protect the public.
Senator Jaffer: Thank you.
Mr. Conroy: They do not automatically go out on parole. A person who comes back now will spend at least four to six months in prison before they appear in front of the parole board.
Senator Jaffer: Thank you.
Mr. Conroy: Even if they are way past their eligibility date.
The Chair: The bells are ringing. Ms. Lafontaine, do you have a comment you wish to make?
Ms. Lafontaine: It is not in relation to the last question. In reference to what Senator Boisvenu asked me earlier, I admitted to a mistake I did not make. I just want to set the record straight. I did not refer to the accused in my declaration but to the offender detained abroad. I just wanted to set the record straight. Thank you for allowing me to do that.
The Chair: Thank you. That concludes this hearing, and I want to thank each of our panelists. The information provided was very useful and informative.
We will reconvene next Monday at 12 p.m., and we will be sitting through the week to consider further elements of Bill C-10.
Until then, once again to our witnesses, thank you so much.
(The committee adjourned.)