[Recorded by Electronic Apparatus]
Tuesday, April 15, 1997
.1543 
[English]
The Chairman (Mr. Stan Dromisky (Thunder Bay - Atikokan, Lib.)): I call the meeting to order. As the order of the day, we will resume consideration of Bill C-237, an act to amend the Immigration Act and the Transfer of Offenders Act.
We have three witnesses before us today. I will ask them to introduce themselves.
Mr. Brian Grant (Director, Program Development, Enforcement Branch, Department of Citizenship and Immigration): I am the director of program development with the enforcement branch, Citizenship and Immigration.
[Translation]
Mr. Pierre Bourget (Director General, Enforcement Branch, Department of Citizenship and Immigration): My name is Pierre Bourget and I am the Director General of the Enforcement Branch at the Department of Citizenship and Immigration.
[English]
Mr. Neil Cochrane (Director, Case Presentation and Detention, Enforcement Branch, Department of Citizenship and Immigration): Good afternoon. I am the director of case presentation.
The Chairman: Thank you very much. I don't know whether all of you are going to speak or one person is going to be the spokesperson with the other two acting as support staff.
Mr. Bourget: Thank you, Mr. Chairman. I'm going to try to be supported as well as possible by my two colleagues.
I may as well say at the outset that unless you mind, I am going to be focusing particularly on the issues related to the part of Bill C-237 that refers to the removal of criminals and the powers that could be given to judges to perform that. We also have colleagues from the Solicitor General's office who, if you do not mind, would focus more on the issues or questions that could arise with regard to the transfer of offenders - that is, the intent of Bill C-237 to make it more accountable for countries to take back their own citizens who have been convicted of crimes.
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In my short preliminary remarks I must tell you that Citizenship and Immigration, and I particularly as the director general of enforcement, took very seriously and examined very attentively the proposal that is Bill C-237. As we have a clear objective in the department to be able to effectively and efficiently remove foreign criminals from Canada, any proposal that refers to being creative in terms of the means to achieve this warrants special attention.
Prior to this meeting we distributed a one-pager entitled ``Bill C-237'' and ``CIC - Current Process''. I hope all members have it. I would like to compare the actual process we have in dealing with foreign criminals to what Bill C-237 is proposing so that we are in a position to highlight some of the benefits associated with Bill C-237 and also, if I may, some of the more hazardous or risky elements or consequences.
We are talking, as you know, of dealing with people who have not obtained Canadian citizenship and who are therefore either immigrants or permanent residents, or non-residents, and have been convicted of serious crimes in Canada. At present, as indicated in the column entitled ``CIC - Current Process'', we have a situation where if somebody is convicted and sentenced for a serious crime, the infraction is reported by an immigration officer. The next step is to decide whether the offence the person committed is serious enough to warrant removal from Canada.
Therefore, even though in the case of non-permanent residents it will very often happen that the people are considered removable from Canada, there is still an element that is evaluated to determine if removal is the solution with regards to what the person went through.
There is also at that stage the possibility for the minister to issue a certificate considering the person a danger to the public. As we will see later, this deprives the person from accessing certain mechanisms of review.
Let us stop here and examine what the dispositions of Bill C-237 may involve. What we see, which at first glance seems interesting, is that the person who would be convicted and sentenced by a judge could also be ordered removed by that judge. Our understanding of the intent of Bill C-237 is that the judge would not necessarily be obligated to render the removal order, but would exercise a certain discretion. That discretion could partly inspire itself of the discretion that we are using now - that is, discretion in the context of the immigration program - but could also be discretion used based on other criteria that are impossible for me to predict at this time.
The reason we added plea bargain is clearly that it is also possible that the judge could be influenced by the plea bargain or the discussions that took place between the crown prosecutor and the defence attorney representing the client in order to decide whether or not a removal order should be made against the individual.
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As you can see, I wish to highlight for you that this step in Bill C-237 seems to expand the discretion currently being used at Immigration. It does so in the sense that it can be the same elements of discretion, but there can also be other factors the judge will take into consideration, which we would not be able to intervene on at all. This includes, evidently, elements leading to plea bargaining.
The other important factor to remember is that in the present process, if somebody is directed to be removed through an inquiry process, as we call it, the adjudicator who presides over that inquiry has no discretion to find the person removable or not. The only thing the adjudicator verifies is whether that person was convicted of that serious crime. If that's the case, the adjudicator has no choice but to render against the person a deportation order or a removal order, as we say.
Again, if a judge who has the power given under Bill C-237 decides that a deportation order is not warranted - as I said before, based on criteria that may be his own - then it is felt that even though Immigration could continue to have the power under the immigration legislation to render a deportation order against that individual - in other words, take him back and say the judge did not want to pronounce a deportation order; we at Immigration will pronounce a deportation order - even though it's not clear, there could be a risk that the element that lawyers like to call double jeopardy appears more clear. Somebody with the discretion to take a decision preferred or decided not to take that decision.
It would be hazardous, at a minimum, to think that the courts could accept that this decision was taken by somebody else, as there had already been an opportunity for somebody who had the power to make that decision. So that is an element of risk.
There is another aspect that I think is important to raise. We have had many lawyers addressing representations to us and even to the courts, saying that when a foreign criminal is convicted and sentenced by a judge, there is a concept of double punishment when Immigration decides that the person, for the same offence, will be ordered deported from Canada.
So far we have been able to have the courts - if I may use the expression - resist the temptation of concluding that there is double punishment. This is partly because the theatre where the conviction and the sentence takes place is a different theatre from where the deportation order is made. The court recognizes the person as guilty and sentences the person, and Immigration is the one to pronounce the deportation order. There is some risk of getting closer to the notion of double punishment if it is the same individual who renders the sentence and recognizes the person as guilty, and also makes the deportation order.
Finally, there is one other aspect that is important to keep in the back of our minds when we examine Bill C-237. At present, the possibility for people to challenge a decision made by an adjudicator that the person be ordered deported from Canada is, to say the least, quite limited. The best example of this is that when a non-permanent resident, therefore a visitor or an illegal, who was convicted of a serious crime while in Canada is ordered removed by an adjudicator, the only appeal or recourse the person has is to seek permission for a judicial review in the Federal Court. If I may use a baseball expression, the batting average in getting the Federal Court to allow an appeal - the risk that this person will be successful - is very low.
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On the other hand, what seems to be envisaged in Bill C-237 is that the person could appeal the conviction, appeal the sentence, and appeal the removal order if pronounced by the judge. In our thinking with regards to what that means, it is felt that we could not have a Bill C-237 that would force an appeal on a deportation order made by the judge in order to continue to be addressed by the Federal Court, because the Federal Court has no jurisdiction on provincial judges, if I may use that expression. On the removal order pronounced by the judge, you would therefore open up the potential for recourse to - and with all due respect to - appeal tribunals in the different provinces.
Without talking about potential longer delays, you could therefore again be subject to different criteria or new jurisprudence that would have to be established by the different appeal tribunals. There is therefore a possibility of not necessarily attaining efficient and effective objectives, as I'm sure was the goal when Bill C-237 was tabled as a projet de loi.
I will stop at this moment. There are certain things leading to travel documents and removal, but maybe I have spoken enough. We can go to some of the questions that members may have. If there's a need, I will hopefully clarify either some of the elements that I have already mentioned, or additional ones related to the actual removal of individuals.
The Chairman: Thank you very much.
Mr. Nunez.
[Translation]
Mr. Osvaldo Nunez (Bourassa, B.Q.): If I understand correctly, officials at the Department of Citizenship and Immigration, are somewhat reticent about Bill C-237. A number of objections have been raised, and you mentioned them. They are opposed to the principle of double jeopardy and various venues, to the fact that ordinary courts will take decisions in a very specific area such as immigration, which requires particular skills. There should be some reluctance felt about an ordinary court judge assuming such a task, which is not normally his or her area of responsibility.
In view of what you have said, do you believe that current legislation and available tools allow you to effectively combat crime by immigrants, to deport and expel them if necessary, particularly following the adoption of Bill C-44?
Mr. Bourget: Mr. Nunez, there is always room for improvement.
[English]
Even though Parliament has provided us with quite a number of additional tools to deal with serious criminals in recent years, we feel there is always a necessity to remain with the best tools possible. But at this stage, particularly when I compare
[Translation]
what we have at present and what is proposed, I am concerned that we might find ourselves with a system which will be more time demanding and possibly lead to inconsistency in decisions.
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[English]
Mr. Nunez, it does not mean that as of tomorrow we don't need to continue to be more efficient and effective with foreign criminals. I know we can do it, and I know that these things are more in line with management initiatives we should be taking rather than urgent legislative amendments.
[Translation]
Mr. Osvaldo Nunez: As you know, my party, the Bloc Québécois, is aware of the problem of crime. Our position is that the government has the right and the obligation to protect the public against criminals, be they immigrants or native Canadians.
Bill C-237 would also allow a judge to deport family members. Under the bill, deportation is a punishment, but here there is no such thing as crime by association. What is your view of this particular problem raised by Bill C-237, which also punishes members of the family of the individual who committed a crime?
Mr. Bourget: For a long time the Immigration Act contained provisions under which a family member considered to be a dependent of an individual who was the subject of a removal order could also be affected by that order. The Immigration Act provides for such a possibility. However, the Immigration Act also allows an individual to show that he or she should not be affected by the removal order made against the head of the family convicted of a serious crime, for example. Does Bill C-237 allow for some discretion, or is such a power or consequence automatic? That is what must be considered.
Mr. Osvaldo Nunez: You have not referred to the Canadian Charter of Rights and Freedoms. There are also problems here because criminals would be obliged to serve their full sentence. They would not be eligible for parole or be able to avail themselves of temporary absence provisions, as can Canadian citizens. Those criminals would be deprived of quite fundamental rights. How do you view this from a constitutional viewpoint? Is this a violation of the Canadian Charter of Rights and Freedoms?
Mr. Bourget: Mr. Nunez, I'm pleased to tell you that I am not a lawyer. I believe that your committee intends to call representatives of the Department of Justice to appear before it. The points you raised concerning the Charter are related more to the sentence to be served: the individual will have to serve a larger part of his or her sentence. Therefore this is not directly linked to the program or the Immigration Act.
[English]
The Chairman: I'm sorry, but because of the call to return to the House to vote on Bill C-82, our third reading of the bill, I'm suspending the session right now. As soon as we finish voting in the House, we'll return and resume.
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.1638
The Chairman: We shall resume our sitting.
Thank you very much for being so patient. We were fortunate that it was very short.
Mr. Nunez, you still have time left.
[Translation]
Mr. Osvaldo Nunez: Mr. Bourget, you have made a presentation, and I don't know if I can ask you whether you or your Department are in favour or against Bill C-237. I don't know whether you have the authority to indicate that to the committee or to recommend that we adopt or reject the said bill.
Mr. Bourget: Mr. Nunez, I would like to thank you for giving me this opportunity but I will not be taking it. I would simply say that, as you can tell from what I said, I feel a little torn here, since we are ready to go ahead and use the extra tools Parliament will decide to give to us, particularly as regards criminal records and facilitating removal.
However, I hope I have explained to committee members certain concerns, apprehensions and requirements. I would ask committee members to think more carefully about the impact of Bill C-237, particularly as regards increased use of appeal or remedy mechanisms.
Mr. Osvaldo Nunez: I remember that when you appeared before us you told us that you were strongly in favour of Bill C-44. Can you give us some information on the impact of that legislation? How many criminals have been deported? Is the fight against crime effective or not?
Mr. Bourget: As I said before the pause, there is always room for improvement. Bills C-86 and C-44 provided us with the tools to generally fulfil our responsibility to protect the Canadian public more effectively against criminals. Bill C-44 did not work independently, the department had to introduce certain mechanisms, for example to ensure better coordination between the various police authorities and to develop strategies dealing directly with the problem of foreign criminals in Canada. But the work is not completed. There are still major challenges we have to address.
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[English]
The Chairman: Thank you. Ms Meredith.
Ms Val Meredith (Surrey - White Rock - South Langley, Ref.): Thank you, Mr. Chair. I have a general question to ask. Does the Department of Citizenship and Immigration put a lot of emphasis on the enforcement of deportation orders when it's a question of criminality or illegal entry into this country?
Mr. Bourget: Yes, Madame Meredith. The enforcement branch of the department, which is also responsible for port of entry activities, investigations and hearing processes, clearly has as its number one priority the increase of the removal of individuals, particularly criminals. I would also say that we need to increase the number of removals of unsuccessful refugee claimants.
Ms Val Meredith: I'm a little concerned. I understand there's a memorandum of understanding between the RCMP and the Department of Citizenship and Immigration concerning response to warrants. This memorandum of understanding passes the responsibility from the RCMP to the Department of Citizenship and Immigration. The understanding is that the Department of Citizenship and Immigration would man an office seven days a week, 24 hours a day, to verify outstanding warrants so that if a police officer pulled somebody over, they could verify that warrant. Is this working?
Mr. Bourget: This is working. We have weekly reports on the degree of calls received by that office from the different police authorities across Canada.
I suspect you are also interested in knowing about the present...not debate, but evaluation of the infrastructure that we put in place to exercise as fully as possible our responsibilities towards cooperation with the RCMP and other police forces across the country. Currently there is no intention on our part to reduce the type of service provided to the police, including the RCMP. It's just a matter of evaluating whether that service remains as effective if it can be provided at a lesser cost.
Ms Val Meredith: There seems to be some concern that the support isn't there. I understand there was a post-implementation review of the IWCR. I understand this report has been taken and reconsidered. I was wondering if this committee could get a copy of the original report that audited the warrant response centre. If you're able to make that available to the committee, we would appreciate it.
Mr. Bourget: Okay.
Ms Val Meredith: My information may be wrong, but I understand that there are 18,500 warrants currently on the CPIC system, and those numbers are increasing by 1,000 per month. Would you say those are fair numbers to be using?
Mr. Bourget: I know there are quite a number of warrants for arrest for immigration purposes. I cannot validate it this afternoon, but I could indicate to you in a future communication if the numbers are correct.
May I also explain the strategy we adopt at enforcement. As soon as somebody, be it a criminal or somebody wanted for removal, has disappeared, is no longer living at the address the person was living at, then steps are taken to try to locate that individual. But rather than investing too many resources in having our investigators try to locate these people, we feel that particularly for criminals, it is better that these people be put in the police information centre. This allows thousands of policemen across the country to assist us in locating the individuals. So the numbers do not scandalize or surprise me.
Ms Val Meredith: Considering the numbers, considering the caseload of individuals from this response centre who have to enter these warrants onto the CPIC system, if they're increasing by 1,000 a month, my understanding is that there are only six immigration officers presently working24 hours a day, 7 days a week, to keep that centre open. Do you feel that's an adequate response to the demand?
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Mr. Bourget: Ms Meredith, this is part of the elements currently being reviewed - that we continue with our commitment to provide the best service to the police authorities at any level, federal, provincial or municipal; that we do it in an effective manner; and that we do it at the best cost possible but not to the detriment of our objective to provide that service correctly.
Ms Val Meredith: My understanding is that there's a memorandum of understanding between you and the RCMP to see that this level of service is there. In order to locate and to apprehend, if you will, the people out there who have been put on the CPIC system, which I assume means they are criminally responsible in some way or another, either under the Immigration Act or the Criminal Code, I suspect if we want to do the job, if we want to enforce the deportation... Obviously, when we give someone the onus to appear at a hearing and they don't show up, they're breaking the Immigration Act. I think we want to put more emphasis on fulfilling that function of the immigration department's mandate.
Mr. Bourget: First of all, these people are not all criminals - evidently, that's the nuance - but I agree with you that when Immigration has decided that the warrant should be issued on a particular individual, it makes sense that we have the necessary infrastructure to allow for the system to function as adequately as possible. That's what we're doing. We're currently reviewing this issue of the input, the number of cases that have to be dealt with and the type of service we provide to the police when they call. It is not our intention to reduce the type of service we now have.
We also need to be attentive to our resources invested in that particular activity. We're proud of what we achieve with regard to that, and we don't want to lose it.
Ms Val Meredith: Can I ask what you meant when you said they're not all criminals?
Mr. Bourget: As I indicated, somebody could be wanted for removal after having gone through, for instance, the refugee determination process and all its recourses. The person decided to go underground rather than presenting himself voluntarily. There is a possibility to issue a warrant for the arrest of that person.
There are also thousands of people who are not criminals, not failed refugee claimants, but who we know have contravened the immigration legislation for other purposes. We are trying to locate them. They have disappeared. Some of these people have also had warrants issued for their arrest.
Ms Val Meredith: Just to clarify that, my understanding is that anybody who is in this country illegally is breaking the Immigration Act and is a criminal.
Mr. Bourget: That's your definition.
Ms Val Meredith: They may not be a serious criminal under the Criminal Code, but if they are breaking the Immigration Act, they're breaking a federal act and are therefore a criminal.
Mr. Bourget: I appreciate your nuance on that.
Ms Val Meredith: Thank you.
The Chairman: Mr. Wappel.
Mr. Tom Wappel (Scarborough West, Lib.): Thank you, Mr. Chairman.
One of those individuals who should have been deported was shot to death a block from my office a week and a half ago.
I want to concentrate on Bill C-237. I understand your evidence, if I can put it in my own words, to be as follows. You are sympathetic to the intent of the bill but feel a duty to point out potential problems such as possible double jeopardy arguments and expanding the length and nature of appeals.
Mr. Bourget: That's correct. There's the element of potential double punishment also, which is an additional thing to the double jeopardy. So you're not quite correct, Mr. Wappel.
Mr. Tom Wappel: Okay.
You would agree, I take it, as would, I presume, the immigration department, with the general intent of clause 2 of the bill, which is to ensure the expeditious removal from Canada of criminals.
Mr. Bourget: We have that objective, yes.
Mr. Tom Wappel: Now, let's take your chart and work through it. If you don't mind, let's take a specific example, that of the landed immigrant sentenced to 15 years for armed robbery. Under Bill C-237, it's my understanding that the judge would obviously have found the person guilty, sentenced him to 15 years for armed robbery and under the appropriate section ordered that person deported.
What happens, under your understanding of Bill C-237, at that point? Does the person serve the 15 years or is the person deported? What's your understanding of the bill, first of all?
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Mr. Bourget: If some other elements of the bill are not taken into consideration, my understanding of the bill would be that the person would serve part of the sentence, as is recognized now, a third or something like that, and the person could eventually, after that period, be the subject of removal from Canada; they could be deported.
Mr. Tom Wappel: What do you mean ``could be''? According to the bill, the judge has made an order that they are to be deported. I'm not talking yet about appeals. We're talking about a person who has served five years of the fifteen. Is it your understanding that he would be eligible for his one-third? What does this proposed section 32.1(8) mean, then: No other release? I'm not quite sure how you interpret that.
Mr. Bourget: The reason I'm making that distinction or being a little more nuancé,Mr. Wappel, has to do with the fact that there is a difference between somebody who is under removal order or deportation order and who has passed, let's say, a third of his sentence in a penitentiary and who is technically susceptible or eligible to be removed...can be removed. That's where I want to make the nuance. In my little thing there I had the removal at the end. Quite a number of individuals in Canada have been legitimately, legally ordered deported from Canada and we cannot deport them. Some of the reasons are that the country that we feel may have an international obligation to take back the citizen is not prepared to receive that person, is not prepared to issue a travel document that would allow the person to go back to the country where we feel the person should be returned.
Mr. Tom Wappel: I understand that, and Mr. Bourget, for someone who isn't a lawyer, it's amazing how many nuances you have.
Give me a country that would not involve that problem. Name a country.
Mr. Bourget: The United States.
Mr. Tom Wappel: All right. A guy is from the United States; fifteen years for armed robbery. Under Bill C-237, when is he deported if a judge makes a deportation order at the time of sentence? What is your understanding?
Mr. Bourget: After the person has served the sentence that is required to be served. It could be a third.
Mr. Tom Wappel: And it's your understanding that then he would be deported; the matter would have been decided by the judge?
Mr. Bourget: That's correct.
Mr. Tom Wappel: Forget appeals.
Mr. Bourget: Yes.
Mr. Tom Wappel: Okay. So the judge makes that determination. Let's say the criminal then appeals. The criminal appeals to the court of appeal for the appropriate province, because we're dealing with the Criminal Code. The criminal appeals conviction, sentence, and deportation order - just to be on the nuance side. All of those appeals are heard at the same time, are they not?
Mr. Bourget: It could be, yes.
Mr. Tom Wappel: Well, we would assume they would be, because there's an appeal of a process from a criminal court to a criminal appeal court, and then theoretically from there to the Supreme Court of Canada, on a basis of law, not on the basis of fact or on constitutional arguments.
So what happens under the current process? Let's forget about Bill C-237. A guy is from the United States. He is sentenced to fifteen years for armed robbery and serves five. What happens?
Mr. Bourget: The first thing is that when we are informed of the conviction and the sentence, as I said in the second part of this thing here, a report is made confirming that, first of all, this person is not a Canadian citizen and he is therefore susceptible to being removed from Canada. That report is written so as to confirm that the person is a candidate for deportation, but it also serves to examine, if you are referring, for example, to a permanent resident, how long that person has been in Canada. Did that person arrive when he was two years old?
Mr. Tom Wappel: Let's not do that, because the bill deals with sixteen. Let's talk about a man who has been here for five years. Let's avoid as many nuances as possible and get to the meat of the issue.
Mr. Bourget: Okay. Let's say the direction for inquiry is ordered. Therefore an inquiry takes place, and that inquiry would take place in the penitentiary where the person is detained.
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The person being a permanent resident, if that person were convicted of a serious crime, a crime serious enough for the minister to issue a certificate to the effect that the person is a danger to the public, the person would not have any access to the Immigration Appeal Division of the Immigration and Refugee Board. If there is no certificate indicating the person represents a danger to the public, there would be a review of the deportation order as pronounced by the adjudicator - who would have had, by the way, no discretion to issue the deportation order or not if he found the person was convicted. The immigration appeal division of the Immigration and Refugee Board would examine the case in terms of the legality of the removal order as pronounced by the adjudicator and would also examine if there are what we call ``equitable reasons'' not to have that person removed out of Canada.
Mr. Tom Wappel: Is this automatic?
Mr. Bourget: Yes. As well, the person has to apply to the immigration appeal division to appeal the decision.
Mr. Tom Wappel: Then what is the difference between appealing an order of a judge and appealing for a review of an adjudicator's report?
Mr. Bourget: Without bringing in too many nuances, the first thing different is that, for instance, there are people who would not have access to the complete jurisdiction of the immigration appeal division if, as I said, the minister considers they are a danger to the public; whereas at the court the judge would not be receiving such...and would have to take into consideration -
Mr. Tom Wappel: If the minister makes such a determination, is there no judicial review of that -
Mr. Bourget: At the Federal Court?
Mr. Tom Wappel: - habeas corpus or anything like that?
Mr. Bourget: They can ask for a judicial review.
Mr. Tom Wappel: They can ask who?
Mr. Bourget: Our success, Mr. Tom Wappel, with the judicial review at the Federal Court has been very good for these types of cases.
Mr. Tom Wappel: And what types of cases are those?
Mr. Bourget: People who are considered to be dangerous to the public, people who may have been involved in violent crimes, people involved in the trafficking or importing of narcotics - generally the list of criminal convictions that, if I may say so, Bill C-237 was trying to address.
Mr. Tom Wappel: So anybody convicted for ten years or more.
Mr. Bourget: No, ten years or more, but who can also be considered as being a danger to the public. And I'll give you some examples: armed robbery, murder, rape - violent crimes and crimes having to do with narcotics or drugs.
So let's continue, if you do not mind.
Mr. Tom Wappel: Not at all.
Mr. Bourget: The person is at the immigration appeal division and a decision may be taken, if there is no certificate, to confirm that the deportation order is correct, and possibly to use equity to allow the person to stay notwithstanding the deportation order. The third decision the immigration appeal division can make is stay of the removal for maybe a couple of years to evaluate whether or not the person will continue with crimes or will rehabilitate himself correctly.
That's the IAD, the immigration appeal division. Following that - and I'm finishing here - the person can seek permission for leave to appeal to the Federal Court. Now, what is different between the Federal Court and the provincial appeals tribunal? What I tried to illustrate in my presentation is that the Federal Court has immigration activities as a minimum of approximately 80% of its activities. It has developed expertise. It is relatively timely in its decisions for permission to appeal. In Canada they take on average four months.
An appeal court at the provincial level - it's different in the different provinces - should not be underestimated in terms of its competence. However, it would be in an area it is far from mastering. It would not necessarily be as linked with the existing jurisprudence that exists at the Federal Court. What training, what sort of information would we be able to provide to that court, and what would it be interested in receiving, so it can properly exercise its responsibilities?
I'm sorry about the length of my answer.
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The Chairman: Thank you very much. That terminates your presentation and the questions being asked of you. We thank you very much for presenting all the information and clarifying some of the concerns members have had.
The next witnesses will be coming forth from the Department of the Solicitor General.
I would appreciate it if you would introduce yourselves.
Mr. Arden Thurber (Director General, Offender Reintegration, Correctional Service of Canada, Department of the Solicitor General): Arden Thurber, director general of offender reintegration with the Correctional Service of Canada.
Mr. Richard Zubrycki (Director General, Corrections, Department of the Solicitor General): Richard Zubrycki, director general of corrections in the ministry of the Solicitor General's secretariat.
Mr. Robert Cormier (Director, Corrections Policy, Department of the Solicitor General): Robert Cormier, director of corrections policy with the Solicitor General's department.
The Chairman: Thank you.
Is there one person who will be making the presentation?
Mr. Zubrycki: If I could be permitted, I'll make a few opening comments. Then you can address questions to any of us.
The Chairman: Very good, thank you. Go right ahead.
Mr. Zubrycki: May I ask, Mr. Chair, whether we are pressed for time.
The Chairman: A bell for a vote is going to ring at 5:30 p.m. So you can take about ten minutes, perhaps less.
Mr. Zubrycki: Sure.
My understanding is that we're here primarily to address aspects of Bill C-237 that will have an impact on the Transfer of Offenders Act and other related aspects of foreign offenders serving time in penitentiaries.
Let me start by saying a few things about the Transfer of Offenders Act and its objectives. The Transfer of Offenders Act, or at least the treaties on which it's based, began about 20 years ago, in 1978, based primarily on humanitarian objectives. There were a number of high-profile cases of Canadians serving time in foreign jurisdictions under very harsh conditions that were quite foreign to them, without the support of family and friends, and some distance from the communities that, in the end, they would be returning to.
We began to negotiate treaties with countries that would allow Canadians to return home. Of course, those treaties are reciprocal, allowing foreign offenders to return to their own countries from Canada for similar purposes. There are certain other objectives. One of them is that the Transfer of Offenders Act and the treaties should not allow a person to escape punishment. So the treaties and the act provide that when a foreign offender is transferred to their country of citizenship, they take their sentence with them. They serve that sentence in the country of citizenship, administered by that country.
Another principle the act is based on is that Canada should not become a haven for foreign offenders. So we would not want offenders to escape punishment by committing an offence in Canada and being immediately deported, in which case they would not serve out their sentence. So the treaties and the act require that a certain portion of the sentence must be served. If the person is not transferred with their sentence, then a certain portion must be served here before deportation can take place.
Finally, public security, public safety, is of concern. The act was meant to bring Canadians back to Canada, where they could be gradually released from custody back into their own community under conditions of control and supervision so that when they finally re-establish themselves they will do it, hopefully, in a law-abiding fashion.
Because of the humanitarian nature of the objectives, the treaties are all voluntary. They require the consent of both the receiving and the sending state and of the offender. The offender must, in effect, request that return.
Internationally, it's been seen to be a very important feature that consent must be given so that there is assurance that offenders are not being coerced into accepting a transfer or are not coming under undue pressure in that regard.
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Today we have treaties with about fifty countries. We have three multilateral treaties and eight unilateral treaties. They cover about fifty countries and various dependent states. All those treaties require the consent of all three parties. Our indication is that is still the international standard. This question was reconsidered by the Council of Europe, which was one of our multilateral conventions, and there was little support, if any, for changing that convention not to require the consent of the offender.
As I said, though, consent is not a veto. If a foreign offender is convicted here and is serving a period of time in custody but does not request a transfer to their home country, once they have served their parole ineligibility period, which is usually a third, sometimes a half, and in the case of lifers up to 25 years, they will then be deported if in fact the deportation order can be effected.
In some cases, as has already been mentioned, it's not possible to deport deportable offenders and they do spend lengthy periods of time here. In fact, some spend so much time here that they finish their sentence in Canada. Then the question is what should be done with them? In many of those cases there are enforceable deportation orders but there are difficulties or other reasons. The Department of Immigration could discuss those more effectively than I can.
Where those people cannot be removed, we do have to face the question of what should become of them. If they present a danger or if there's a high risk of flight, I suppose they go into an immigration holding facility, but in cases where they will return to the community it's our view that they would best be returned to the community in a gradual fashion via our usual parole system.
I will mention a few of the areas we would have some concern about. In clause 3, a proposed new subsection (8) would be added to section 32.1 of the Immigration Act. It would prohibit any conditional release of an offender in a penal facility while a deportation order is in effect. We would view that as too inflexible to deal with the vast array of unique situations offenders find themselves in.
We do have a provision now such that under the Immigration Act a detention order can be issued where we're prevented from releasing those individuals on any form of conditional release, but where the Department of Immigration agrees that is not necessary, and where the parole board believes the risk to the public is manageable, those offenders can now be released. We would argue that possibility should continue.
I've already mentioned the consent of the three parties. This bill suggests we should do away with that consent and in effect the court should be able to order the deportation of an individual, in a manner similar to the Transfer of Offenders Act, so they would be transferred, with their sentence, to countries that were agreeable, that would give their consent to that.
Right now, as I've said, we have treaties of one kind or another with about fifty countries. None of those countries appear to be interested in a compulsory transfer system.
Of course, many of the offenders in our institutions do not come from treaty states. Of the foreign offenders in penitentiary right now, roughly 1,100, about 300 come from 30 treaty states, but the rest come from states where we don't have any treaty at all.
Those countries that aren't interested in a treaty along the lines of the kind we have at present are unlikely to be interested in a treaty that would require them to receive offenders back, and we're reasonably certain the countries we do have treaties with would resist. In fact, we think there is a possibility it would offend some of those countries. If we tried to change the treaty it would raise suspicions and it might actually jeopardize some of the treaties we now have.
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There's also provision in the act that where a person was transferred without their consent to a receiving state that gave their consent, they should have a conditional release system that's substantially the same as Canada's. It would be a matter of judgment as to whether or not a country's system was substantially the same, but I can say there are very few, actually, that have a system that's very similar to Canada's, with similar parole eligibility periods and levels of supervision. So I believe it would be difficult to find states that would meet that requirement.
Those are what we would perceive to be some of the problem areas. We can discuss any of those areas or answer any other questions members may have.
The Chairman: Thank you very much. In light of the time, we'll give each party six minutes. Mr. Nunez.
[Translation]
Mr. Osvaldo Nunez: I will reiterate the point I made earlier. I don't know whether you are in favour or against this bill, or what you are recommending to the committee. I noted that you have a number of objections.
As the opposition's spokesperson for citizenship and immigration, I often receive calls or meet with people on the subject of Canadians serving sentences abroad. They sometimes complain that the Canadian consul is not helping them. The conditions in which they are detained are poor, sometimes the correct procedure wasn't followed, etc. How many Canadians are there serving sentences abroad?
[English]
Mr. Zubrycki: These are figures we would receive from the Department of Foreign Affairs. Their missions abroad would be in contact with Canadians who are known to be serving sentences in foreign countries. They're not always that precise, but we get periodic reports. Mr. Thurber is just looking for that number.
Mr. Thurber: At the moment we are aware of 1,569 Canadians who are incarcerated in countries abroad. Not all of those countries are countries with whom we have agreements.
Mr. Osvaldo Nunez: Would you mention some of these countries? I know some of them, for example, Brazil, Mexico, Venezuela and Colombia.
Mr. Thurber: It's an extremely lengthy list, running from -
Mr. Osvaldo Nunez: Just mention the main countries.
Mr. Thurber: For example, we are aware of 11 Canadians in Austria; 23 Canadians in France; 26 in Germany; 26 in Italy; 29 in Mexico; 16 in the Netherlands; 12 in Poland; 13 in Spain; 13 in Switzerland; 17 in Thailand; and the largest number by far, 1,223 in the United States.
Mr. Osvaldo Nunez: How many are there in Latin America?
Mr. Thurber: I don't have that breakdown. I have it by individual country as opposed to continent.
Mr. Osvaldo Nunez: Don't you have treaties with Latin America?
Mr. Thurber: We have agreements with some Latin American countries, yes, but not all. Of the Latin American countries, we have a bilateral treaty with Bolivia, Mexico and Peru, and under other agreements, Venezuela as well as some Caribbean countries.
[Translation]
Mr. Osvaldo Nunez: How many of these individuals can come back to Canada and, generally speaking, what types of crimes have they committed?
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[English]
Mr. Thurber: I'm afraid I don't have available the list of crimes they may have committed, but I think we're safe to say it probably spans a wide gamut of criminal offences.
About the timeframe for processing an application, if that is your question, once the offender has made an application in the country in which they are incarcerated and that country has given a preliminary approval and forwarded it to us in Canada, it generally takes between six and nine months to do all of the investigation, obtain an approval in Canada, and return that information to the country where the person is incarcerated. Once that process is completed it is generally a reasonably short time, two or three months, before a transfer can actually be physically made to happen.
Mr. Osvaldo Nunez: How much does it cost?
Mr. Thurber: The process itself? In the Correctional Service of Canada we devote the equivalent of three people to this process. The total cost would be in the neighbourhood of $200,000 for the processing of information. That's just for the Correctional Service of Canada. There is obviously a role for Foreign Affairs and consular offices that would imply other costs.
Mr. Osvaldo Nunez: Who pays for the ticket for the transfer?
Mr. Thurber: The returning of a Canadian citizen to Canada is a cost undertaken by the Government of Canada.
Mr. Osvaldo Nunez: Do you have a global figure?
Mr. Thurber: I don't have that available, but I could provide that information for you.
[Translation]
Mr. Osvaldo Nunez: Are you negotiating other treaties with other countries?
[English]
Mr. Zubrycki: Yes, we are. Right now I believe the country we're most actively engaged in negotiations with is India, but it's an ongoing process. In some cases discussions begin and then break off and then they are resumed on another occasion. In some cases they are given impetus by a particular case that arises in one country or the other and remotivates the negotiations. With India we're very close to an agreement right now.
The Chairman: Ms Meredith.
Ms Val Meredith: I'm curious about the figures you gave for the number of foreign inmates we have. I believe you said 300 came from 33 states but 600 of them came from countries we don't have treaties with. Is this a figure that is changing over the years or is it a sort of standard situation for you?
Mr. Zubrycki: I'm really not aware of whether there has been change over time. Mr. Thurber may know.
Mr. Thurber: The proportional breakdown changes year to year as people are sentenced or they complete their sentence or they are transferred back to Canada, so the proportion between treaty countries and non-treaty countries would change from year to year. The only thing we know consistently at this point is that over the last three or four years there has been a decline in the total number of foreign offenders who are here in Canada, in the neighbourhood of about 200 offenders.
Ms Val Meredith: But these figures you use, I take it, are for foreign inmates who are here in our system.
Mr. Thurber: Yes.
Ms Val Meredith: So basically you're telling us that twice as many of these foreign inmates come from countries where we don't have these treaties.
Mr. Thurber: Yes.
Ms Val Meredith: So in essence you're telling us that even though we were to pass Bill C-237 or Bill C-44, deporting 600 inmates is virtually not possible.
Mr. Zubrycki: No, they all remain eligible for deportation, but when an offender is deported they return to their home country without any penalty in the receiving state. They don't carry their sentence with them. They return free and clear.
From Canada's point of view, if an offender is deported from another country and returns to Canada, they are under no sanction when they are returned here. They are not serving any sentence and they don't really even have a criminal record in this country. Even though there's some cost to Canada, we would prefer, for both humanitarian and public safety reasons, to have them returned under sentence, have them complete their sentence here and be returned in a gradual and controlled fashion to the community.
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Ms Val Meredith: So it's not a question that you can't deport them. It's a question that they can be deported, providing Immigration will go through the process and deport them. They just won't be required to finish a sentence in the other country.
Mr. Zubrycki: That's right.
Ms Val Meredith: That's all we talk about when we're using these figures.
Do you find that the majority of foreign inmates who would have sentences, or the potential of sentences, of 10 years or more are deported when they are released the first time on serving one- or two-thirds of their sentence? Is it your experience that this process does happen, or do you find that the process doesn't happen at that time? Do you keep track?
Mr. Thurber: We have not been keeping track of that kind of information. I can't give you an accurate answer to that.
Ms Val Meredith: So you're really only concerned about foreign criminals up to the point of releasing them from the penitentiary, from incarceration, at which time, then, the Department of Immigration takes over with a deportation order and then goes through this appeal process we heard about earlier.
Mr. Thurber: Precisely.
Mr. Zubrycki: They in fact will be deported as soon as they become eligible for parole. So they would have to serve at least that period of time when they're not eligible for parole. That's usually a third of the sentence. After that, if there's a deportation order they can be deported at that point. Their Canadian sentence is deemed to have ended at that point, and they're deported. If they return to Canada, the sentence is reactivated, and they would have to begin serving it again.
Ms Val Meredith: Is the onus on the Solicitor General's department to inform Immigration when their eligibility for parole has come up, or is this something the Department of Immigration has to keep an eye on?
Mr. Thurber: This is something we do cooperatively with the immigration department. We've linked our automated information services so that they are informed when we receive an offender who may be eligible for deportation and they can go through their process.
Once they've rendered a decision, and if that decision is that a deportation order has been put in force against a person in our custody, then they inform us. An alert signal goes up within our information system so that we know there is a deportation order lodged against that individual. The consequence of this is that they are not eligible for any kind of temporary absence or release up until the point of full parole eligibility.
Ms Val Meredith: Do you have a bilateral agreement with places like the United States such that if an individual escapes from one of their penitentiaries and finds their way to Canada they will be returned, and vice versa? If somebody escapes from a Canadian prison, say, and ends up down in the States, are they returned to the facility?
Mr. Zubrycki: It's really not part of this legislation, but there is the Fugitive Offenders Act, which allows the return of fugitives. Of course, there's also the extradition process, where offenders who come here from another country, or even Canadian persons who commit an offence in another country, can be returned to face prosecution.
The Chairman: Mr. Wappel.
Mr. Tom Wappel: As I understand this bill, there are really two aspects to it. One is giving the power to a sentencing judge to order deportation. The second aspect is the Transfer of Offenders Act, as I see it.
I agree with your assessment of proposed subsection 20.1(6), that it would be very difficult to find too many countries in this world who have a system similar, or, if I may say, as generous to the offender, or as humane, as we have here. So I have some trouble with the proposed subsection.
What I don't quite understand is what you were trying to say with respect to consent - you indicated that there is no veto - because it would be ludicrous to suggest that without the consent of the convicted person they can't be deported. That is just crazy. No one would advocate that.
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What is your point about consent in terms of this bill? I don't quite follow it. The only place I can see consent even mentioned is where it talks about the consent of the foreign state. You were mentioning problems with treaties. Could you just go over that again for me?
Mr. Zubrycki: My understanding of this bill is that it would combine, in effect, the deportation process and the transfer of offenders process. So a judge could order that offender deported but under sentence and with the sentence to be served in the foreign state. That would be a unique situation. Generally speaking, it's our belief that most of the countries we have treaties with would not accept that kind of process.
Mr. Tom Wappel: But isn't that dealt with in proposed subsection 20.1(3) of the Transfer of Offenders Act because it requires the consent of the foreign state?
Mr. Zubrycki: Yes.
Mr. Tom Wappel: Then what is your concern? If it requires the consent of the foreign state, then there is no concern. The foreign state will either consent or not.
Mr. Zubrycki: The only way we could find out if the foreign state will consent is to return to all of our treaty partners and others and ask them if they would consider either amending the existing treaties or entering into new treaties, parallel treaties or whatever, that would be based on a very different standard than what we've been used to.
Mr. Tom Wappel: Why? Why could we not simply say to the foreign state, we'd like to deport this individual, will you take him?
Mr. Zubrycki: If it's a straightforward deportation, of course that's what we do now.
Mr. Tom Wappel: Exactly.
Mr. Zubrycki: But if it requires that state to administer the Canadian sentence, in most cases they would require domestic legislation in order to do that.
Mr. Tom Wappel: I understand. And I understand your point about proposed subsection 20.1(6). If proposed subsection 20.1(6) were removed from the bill, then I would suspect your objections with regard to problems with treaties with other nations would fall, because we're not trying to be extraterritorial with our method of dealing with offenders.
Mr. Zubrycki: That's correct, yes.
Mr. Tom Wappel: So proposed subsection 20.1(6) is what you're really talking about with regard to consent, and if proposed subsection 20.1(6) went, that objection would be dealt with.
I'll ask the same question of you as I did of Mr. Bourget: assuming for the moment that proposed subsection 20.1(6) were gone, are you generally sympathetic with the intent of the bill?
Mr. Zubrycki: I stated at the outset basically what the principles of the transfer of offender scheme are. To the extent they're consistent, it's really not for me to comment on some of the aspects of the bill. From our point of view, we do want to ensure that Canadians can be returned home, that we cooperate with other countries, that we do protect public safety, and that it is a humanitarian scheme. We certainly have no interest in retaining foreign offenders in our system any longer than is necessary to demonstrate that the punishment cannot be escaped. So in that sense I would say that at the officials level we are sympathetic. I really can't comment on all aspects of the bill.
Mr. Tom Wappel: I understand.
This is my final question. What is your interpretation of proposed subsection 32.1(8) of the Immigration Act? How do you read it? I was asking Mr. Bourget, and of course I shouldn't have asked him because he's in Immigration. I should have asked you because you're in Corrections, and this deals with Corrections.
Mr. Zubrycki: I read it to mean that as long as there's a deportation order in effect, the individual in Canadian custody would be eligible for no form of conditional release except for an escorted temporary absence for medical purposes.
Mr. Tom Wappel: Including eligibility for parole after one-third.
Mr. Zubrycki: Yes.
Mr. Tom Wappel: That's how I read it. The way this proposed subsection is written, it would require everybody to serve their full term and then be deported in every case. It even says statutory release, which I presume is the two-thirds time, is it not?
Mr. Zubrycki: Yes, but if they were to be deported, normally they would be deported much earlier than that. They would be deported as soon as they're parole eligible.
Mr. Tom Wappel: I agree. I'm just asking how you read proposed subsection 32.1(8). Do you read it the same way as I read it, which is that it would require the person to serve their full sentence?
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Mr. Zubrycki: Yes, but I would add ``and then turned over to immigration authority''. So they would be deported or they would be placed in a holding facility or they would be returned to the community, if that were their decision.
Mr. Tom Wappel: Right, whereas if they served their, say, one-third and were deported, as you answered Ms Meredith, they are home free: they have no parole, they have no conditions, they have nobody to report to. They have done one-third of their sentence and they are back at home, in fact with no criminal record at home, as you pointed out, in the reverse with Canada. I guess the intent here is to make them serve the time before they are deported. Is there any comment on that?
Mr. Thurber: Your interpretation may be entirely correct. I'm not legally trained, but as I read it here a possible interpretation is that this is a provision that would keep the person in custody until such time as the deportation order could be executed -
Mr. Tom Wappel: Right, yes.
Mr. Thurber: - as opposed to requiring them to stay the full length of sentence and then be deported. In reading the paragraph I can see both interpretations.
Mr. Tom Wappel: Yes. So clearly, Mr. Thurber, if what you say is true, the wording should simply say they should not be released under any program. Although they may be eligible, they should not be released unless they are released for the purposes of deportation. I think that's what they are trying to get at.
Mr. Thurber: I think it's extremely important that it be very clear what the meaning is.
Mr. Tom Wappel: Absolutely. Thank you.
The Chairman: Ms Minna.
Ms Maria Minna (Beaches - Woodbine, Lib.): I just wanted a clarification on the numbers. Earlier we were talking about the 1,100 who are in our system. When we don't have an agreement with countries, we don't have reciprocal agreements... As for those we do have reciprocal agreements with, do they all include the person doing the sentence once they get to their country? So they take the sentence with them in all of those cases.
Mr. Zubrycki: That's right.
Ms Maria Minna: Okay. I just want to make that clear. Then the remainder are countries we can deport to, but the person does the sentence here because they don't do it.
Mr. Zubrycki: Yes.
The Chairman: Thank you very much, gentlemen, for appearing today. It was most informative.
The meeting is adjourned.