JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, October 1, 2003

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1535

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Normand Payette (Acting Director, Corrections Policy, Department of the Solicitor General)

The Chair

Mr. Normand Payette

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1540

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

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1545

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

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1550

Mr. Normand Payette

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

Mr. Normand Payette

Mr. Robert Lanctôt

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1555

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Michel Laprade (Legal Counsel, Legal Services, Correctional Services of Canada, Department of Justice)

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Michel Laprade

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

The Chair

Mr. Inky Mark (Dauphin—Swan River, PC)

Mr. Normand Payette

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1600

Mr. Inky Mark

Mr. Normand Payette

Mr. Michel Laprade

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Michel Laprade

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

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1605

Mr. Inky Mark

Mr. Normand Payette

The Chair

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Normand Payette

Mr. Lorne Nystrom

Mr. Normand Payette

Mr. Michel Laprade

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1610

Mr. Lorne Nystrom

Mr. Normand Payette

Mr. Lorne Nystrom

Mr. Normand Payette

Mr. Lorne Nystrom

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

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1615

Mr. Normand Payette

Mrs. Marlene Jennings

Mr. Normand Payette

Mrs. Marlene Jennings

Mr. Normand Payette

Mrs. Marlene Jennings

Mr. Normand Payette

Mrs. Marlene Jennings

Mr. Normand Payette

Mrs. Marlene Jennings

Mr. Normand Payette

Mrs. Marlene Jennings

Mr. Normand Payette

Mrs. Marlene Jennings

The Chair

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Normand Payette

Mr. Kevin Sorenson

Mr. Michel Laprade

Mr. Kevin Sorenson

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1620

Mr. Normand Payette

Mr. Michel Laprade

Mr. Kevin Sorenson

Mr. Normand Payette

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

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1625

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

Mr. Michel Laprade

Mr. John McKay

The Chair

Mr. Robert Lanctôt

Mr. Michel Laprade

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

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1630

Mr. Michel Laprade

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

Mr. Robert Lanctôt

Mr. Normand Payette

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

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1635

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

The Chair

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

The Chair

Mr. John McKay

Mr. Normand Payette

Mr. John McKay

Mr. Normand Payette

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1640

Mr. John McKay

Mr. Normand Payette

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Normand Payette

Mr. Chuck Cadman

Mr. Normand Payette

Mr. Chuck Cadman

Mr. Michel Laprade

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1645

The Chair

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Normand Payette

Mr. John Maloney

Mr. Michel Laprade

Mr. Normand Payette

Mr. Michel Laprade

Mr. John Maloney

The Chair

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

Mr. Normand Payette

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1650

Mr. Inky Mark

Mr. Normand Payette

Mr. Inky Mark

The Chair

Mr. Chuck Cadman

Mr. Normand Payette

Mr. Chuck Cadman

Mr. Normand Payette

The Chair

Mr. John McKay

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 065

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Wednesday, October 1, 2003

[Recorded by Electronic Apparatus]

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[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): Good afternoon. Bienvenue tout le monde.

    I call to order the 65th meeting of the Standing Committee on Justice and Human Rights. Today, pursuant to the order of reference of Tuesday, May 13, we are looking at Bill C-33, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences.

    To help us through this, we have, from the Department of Justice, Michel Laprade, legal counsel, legal services; representatives from Correctional Services of Canada; and from the Department of the Solicitor General we have Normand Payette, acting director of corrections policy.

    Gentlemen, I'm sure you're familiar with the way in which we operate here. We'll have opening comments with regard to Bill C-33, and then we'll have an opportunity for members to pose questions.

    On that, I welcome your intervention. Thanks for coming.

[Translation]

    Mr. Normand Payette (Acting Director, Corrections Policy, Department of the Solicitor General): Thank you indeed, Mr. Chairman.

[English]

    The Chair: I might mention, before you begin, thank you for coming under very short notice. Thank you.

[Translation]

    Mr. Normand Payette: Thank you.

    What I intend to do, as you said, is to give you an overview of the bill and then answer questions. My colleague Michel Laprade and I will answer whatever questions you may have on the bill.

    The Transfer of Offenders Act provides for the implementation of treaties with other countries for the transfer of delinquents. Its goal is essentially humanitarian. The act and the treaties allow Canadian delinquents found guilty abroad and sometimes in prison there in difficult conditions to do their time in Canada. Conversely, foreign nationals can do the rest of their Canadian time in their country of origin.

    The legislation helps protect society in the sense that the Canadian delinquent can do the rest of his time in Canada and gradually be reinserted into the community. Otherwise, the Canadian delinquent would be deported back to Canada at the end of the sentence and would show up without having been submitted to any kind of control at all.

    Why did we propose an amendment to the act? Since it was proclaimed in 1978, there have been no amendments addressing the substance of the act, while more important matters were identified. Those matters were examined in a public consultation document that was made public in 1997. That detailed examination showed that the legislation has to be modernized and clarified. Ninety-one organizations from the public and private sectors were consulted, and, in general, the majority of organizations that responded to the document reacted favourably to the questions examined in it and expressed their support for the proposals put forward in the document.

     The proposals can be divided up into the following categories, that is the proposals that are a reflection of the traditional treaty principles. Those proposals would provide for goals and principles such as the obligation not to increase the sentence, the rule of double jeopardy, the adaptation and implementation of the imposed sentences, in short, principles that would support the objective of the legislative provisions.

    On the other hand, the proposals would mean new requirements in the matter of communication of information. The official named by the minister and the authorities in charge of the administration of prisons would have an obligation to inform foreign nationals of the existence of a treaty between Canada and a person's country of origin.

    There would also be new provisions in any matter of consent. For example, the foreign national could withdraw the consent given as long as the transfer has not actually taken place.

    The following category of proposals would plug the holes identified in the act and ensure uniformity with other legislative provisions. First, the proposals would allow for the transfer of teenagers on probation, children of less than 12 years of age and persons with mental problems.

    The proposals would explicitly specify that the consent of the provinces is required to transfer Canadian or foreign delinquents who are on probation, on parole under provincial jurisdiction, on passes under provincial jurisdiction, or who are serving a suspended or intermittent sentence.

    The proposals would also add provisions requiring that the delinquent be informed of the reasons for the minister's decision not to consent to the transfer requested.

    The proposals would include provisions clarifying the rules serving to calculate sentences and would align the provisions on other legislative measures, more specifically the Criminal Code, the Corrections and Conditional Release Act as well as the Youth Criminal Justice Act.

    There would also be provisions requiring that Canada act in consequence when a foreign State takes humanitarian steps concerning the conviction or sentence of a delinquent, for example if the foreign State decides to cancel the conviction or reduce the sentence.

    There would be provisions to the effect that unless a court were to declare the transfer of an offender invalid because he is not a Canadian citizen, the sentence is mandatorily to be served in Canada. If the court were to declare the transfer invalid, the solicitor general would then have to or have the duty to advise the Minister of justice and the Minister of Citizenship and Immigration so that they could take the necessary steps for removal.

    These proposals would add to the present act those considerations concerning transfer that are already in the transfer of offenders regulations.

    There would also be proposals with a view to increasing efficiency. Those proposals would do away with the referral to the schedule, as well as the schedule, as such, of the act.

    Finally, the proposals would allow for an administrative agreement for transferring persons with mental problems. The proposals would also allow Canada to come to administrative agreements for the transfer of offenders between Canada and foreign governments that are not recognized as countries by Canada such as Hong Kong, Macao or Taiwan.

    Canada would also be able to enter into administrative agreements for the transfer of offenders with a State with which there is no treaty in force.

    Those are the broad outlines of Bill C-33.

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[English]

    The Chair: Thank you very much. That's the presentation.

    I'll go now to Mr. Sorenson for seven minutes.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you.

    Thank you for coming and giving us a summary of this bill.

    I noticed in the proposals that it includes provisions for the transfer to Canada of young offenders who are on probation, and also children under the age of 12 years old. In this country, anyway, I think that you need to be at least 12 years old to be held criminally responsible. How does that correspond with other countries?

    If that is indeed the case, and if someone commits a criminal offence in another country, yet is under the age of 12 years, how does that play out, seeing how part of the legislation says...? Maybe I'll leave it at that. How does that play out, first of all? How does that play out with the Youth Criminal Justice Act that we have in place right now?

    Mr. Normand Payette: Under the current legislation, as you said, people cannot be charged if they're under 12 years old, but that does not preclude them from being charged in other countries. What we've done is extend the net, again, to further the humanitarian objective of the legislation, to say that in cases where there are children under sentence in a foreign country, we can bring them back. They will not be incarcerated and they will be remitted to the appropriate provincial authorities.

    Mr. Kevin Sorenson: Basically you're saying, then, that if someone committed a schedule one or even a schedule two offence in another country, that person would come back and be turned back out on the streets.

    Mr. Normand Payette: They would be remitted to their guardians and the provincial authorities that would be responsible for children.

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    Mr. Kevin Sorenson: If someone had committed a schedule one offence in Canada and was being held in another country that asked for them, knowing that they may be incarcerated in that other country, is there anything in this provision that would prevent us from sending it to the home country?

    Mr. Normand Payette: Do you mean a foreign offender who is incarcerated here in Canada?

    Mr. Kevin Sorenson: I mean an offender who is under the age of 12 years.

    Mr. Normand Payette: You can't be.

    Mr. Kevin Sorenson: They would automatically be sent back to the other country. Okay.

    In 2001, 5% of all those who were incarcerated in this country were foreigners from other countries. Although I do know that over a 25-year period, from 1978 to 2003, a total of 118 prisoners were transferred from Canada to a total of six countries, I'm not sure about the stats showing what percentage of the 1,100 offenders in 2001 were transferred back to their home countries. Basically, how many were sent back in the year 2001 to their countries? We know how many were sent here. How many did we send back to other countries?

    Mr. Normand Payette: On average, it's about two offenders per year who are sent back to their country of origin, as opposed to 85 Canadians who are brought back yearly. That's the average.

    Mr. Kevin Sorenson: Is that the average over the last ten-year period?

    Mr. Normand Payette: Just about.

    Mr. Kevin Sorenson: We aren't talking about large numbers going home.

    Mr. Normand Payette: No.

    Mr. Kevin Sorenson: In the same period of time, how many Canadians do you feel were incarcerated in other countries? I guess what I'm driving at is how many are in other countries? How many will this make a difference to? Is this new legislation going to make any difference at all?

    First of all, how many are incarcerated in other countries?

    Mr. Normand Payette: There are approximately 3,000 Canadians who are incarcerated abroad, and of those, approximately 2,700 are eligible for transfer. Here in Canada, our statistics from November show there are roughly 972 foreign offenders here in Canada, of whom about 270 are eligible for transfer.

    Mr. Kevin Sorenson: All right.

    In this bill it spells out very clearly the three different entities that have to show that they want this to take place--they have to consent: we have the foreign country, we have our country, and we have the offender. Is there anything in this bill that says that we need to take a look at the victim? Is there an opportunity for a victim to come forward, for example, and say “Listen, here you are working on a transfer to a foreign country”?

    In all these files, we're told to have victim impact statements. We're told at probation now that the victim has the ability to make an application or to make a presentation. Before consent is given for an offender to go to a different country, is there anything saying that the victim has the opportunity to come forward and have a say before the decision is made?

    Mr. Normand Payette: There's nothing specific in the bill that alludes to that. As you said, the victim certainly is allowed to make a statement at trial. If the offender also has appeared before the parole board, there is an option for the victim to make an impact statement there. That's not to say that the Solicitor General, in making his decision, will do a file review and be made aware of the victim's concerns.

    To answer your question, in terms of whether the victim can make a declaration or a statement in respect to the offender's request for transfer, there's nothing in the legislation.

    Mr. Kevin Sorenson: We have the ability, usually at the trial, for a victim to somehow be--

    Mr. Normand Payette: To make a victim impact statement.

    Mr. Kevin Sorenson: We have that ability at parole. Would the department object to something being put in this bill that would allow the victim, again, the opportunity? We've had people in this city and in our country who have been hit by drunk drivers and killed. They've been sent back to their country, and they're sent out on the streets. We allow it at the trial, we allow it at parole, but here you are going to send someone back to a foreign country. The hurt and the suffering of the families, perhaps, back here are as defined as they would be in any other instance. Why would we not allow the victim to have a presentation at some type of hearing that would decide this?

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    Mr. Normand Payette: I can only confine myself, Mr. Sorenson, to what is in the bill and les grandes lignes. The only answer, as I said, I can offer is that there is a possibility at trial and at the parole board hearing. When the minister does go through the file, he can look at it. That's all I can really say.

    The Chair: Thank you very much.

    I'm going to ask the indulgence of our witnesses for just one moment while we have ten members here.

    As I mentioned yesterday, we will require money to undertake the studies of three bills we have identified that will require witnesses. Since we have been reconstituted, we have to do that today. It's very simple and straightforward. It is first that the proposed operational budget for the committee for a study on Bill C-20 be $31,500; second, that the proposed operational budget for the committee to study Bill C-33 be $8,200; and third, that the budget for Bill C-44 be $13,000. That is based on 25 witnesses for Bill C-20, as discussed, six witnesses for Bill C-33, and ten witnesses for Bill C-45.

    Mr. McKay has moved that.

    (Motion agreed to)

    The Chair: Thank you. I apologize for the interruption.

    Monsieur Lanctôt, seven minutes.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

    I'd just like to have clarifications on clauses 17 and 19 concerning young persons. Was consideration given to the fact that the court of appeals gave an opinion, that was not further appealed, on the presumption of punishment, that is behaviour that adversely affects rights, freedoms and the psychological security of young persons?

    It reads:

(2) Is deemed to have received an adult sentence within the meaning of [...]

    of that legislation, and it mentions young persons from 12 to 13 years of age, and in the other clauses, young persons of 18 and 19 as well as 14 and 17 years of age.

    Are any amendments going to be brought to this bill? Could you explain what's going on here?

    Mr. Normand Payette: We want to extend the application of the act for humanitarian reasons. As you mentioned, if you look at paragraph 17(1) in the case of young persons from 12 to 13 years of age, if the foreign sentence is more severe than what is provided for by the Youth Criminal Justice Act for adolescents, then we go with two or three-year sentences. There is no derogation. If the young person is between 14 and 17 years of age, we want to make the legislation as flexible as possible. Why? Because more often than not, foreign countries are quite dissatisfied with the way Canada manages its sentences. And here is what I mean.

    They want the foreign delinquents to spend as much time in detention as possible, in other words as lengthy a sentence as possible, to such an extent that they will refuse consent. Here is what we wanted to do. If there's a young person aged 14 to 17 years serving a sentence under very difficult conditions, physically and emotionally, and if the foreign sentence is longer than two or three years, how will we manage to repatriate the offender? How can we catch the offender in the nets of the legislation? By making it possible for the young offender's sentence to be deemed an adult sentence.

    Mr. Robert Lanctôt: Don't you think that goes against what we're trying to do here? There are things in the legislation that we have before us that will never be implemented. The bill mentions young people between 14 and 17 years of age, whereas we should remember that in the new Youth Criminal Justice Act the age range mentioned is 16 to 17. Therefore, I think that our legislation could lead to some confusion, because we are referring to adult sentences for young people between 14 and 15 years old, whereas in the new Youth Justice Act, young people between the ages of 14 and 15 cannot be sentenced as adults; rather, we are talking about young people between the ages of 16 and 17. This was the opinion of the Quebec Appeal Court and we did not appeal that ruling.

    In light of that, don't you think that it would be better to say young people between the ages of 16 and 17 rather than between the ages of 14 and 17? That would be closer to reality, because the Youth Justice Act refers to young people between the ages of 16 and 17 and not young people between the ages of 14 and 17. Previously, it was young people between the ages of 14 and 17, but in light of the ruling and the opinion of the Quebec Appeal Court, that we did not challenge by the way, I think that it would be better to refer to young people between the ages of 16 and 17.

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    Mr. Normand Payette: The provisions of the current legislation are appropriate. By that, I mean that the legislation is drafted in such a way as to comply with the Youth Criminal Justice Act. Don't you agree?

    Mr. Robert Lanctôt: But doesn't this legislation refer to young people between the ages of 16 and 17?

    Mr. Normand Payette: No, isn't it young people between 14 and 17 years of age?

    Mr. Robert Lanctôt: I don't know. But, I had the impression that it was young people between 16 and 17.

    Mr. Normand Payette: I have to tell you, Mr. Lanctôt, that we have consulted representatives from the Department of Justice who deal with the Youth Criminal Justice Act. We wanted to make sure, in any event, that our provisions were in compliance with the provisions of other pieces of legislation.

    Mr. Robert Lanctôt: But we can we ever really be sure?

    Mr. Michel Laprade (Legal Counsel, Legal Services, Correctional Services of Canada, Department of Justice):

    You have to be careful here. Adult sentences may be handed down to young people between the ages of 14 and 17. What the appeal court was referring to was the issue of presumption for designated offences.

    Mr. Robert Lanctôt: I am concerned about including that in the legislation. I don't really know how the bill could be redrafted, but as it stands it might suggest that there is still presumption.

    Mr. Normand Payette: Indeed, but the fact remains that the crown prosecutor may make a request in regard to this issue. However, he or she may not request an exemption or a waiver. When a young person is deemed to be serving an adult sentence, do you think that the legislation in that case suggests presumption?

    Mr. Robert Lanctôt: It's not clear. When you read sections 18 and 19, you might think that there is a presumption. I don't want this legislation to have to go before the courts and for the door to be opened to interpretations like the one I'm laying out before you now.

    Mr. Normand Payette: Indeed, but why would it be taken to court? What could the offender argue in that case?

    Mr. Robert Lanctôt: Well, it might be the case of a foreign national who doesn't agree with his extradition and that person might obtain the services of a lawyer in Canada or Quebec, and that person might say...

    Mr. Michel Laprade: Sections 17 and 18 apply to Canadian offenders, and do not apply to offenders from other countries who want to be transferred to their home country.

    Mr. Robert Lanctôt: Indeed, that's just it, you are talking about offenders, but you're not referring to others. Let's imagine that I am an American or a person from some other country let's say, and I have committed a crime against someone here, and let's say that I'm not happy because I would have preferred to be sentenced in my own country rather than in Quebec or Canada. Suppose I take my case to the courts and I say I don't agree, and I try to interpret the legislation in a different way.

    Mr. Normand Payette: The actual way the sentence will be executed is explained to offenders before they are extradited. The offender must therefore be informed and consent. They are made aware of the situation.

    Mr. Robert Lanctôt: Offenders are indeed made aware, but not the victim's family or the victim himself in the other country. This is what I'm trying to get at here. This might lead to a different interpretation of the legislation. In any event, what I'm saying is that you should look at the way the legislation is drafted. I think that its current format might leave the door open to interpretation.

    Mr. Normand Payette: If I am to understand you correctly, Mr. Lanctôt, you want to avoid provisions which might give the impression that they either endorse or recognize a presumption. Is that it?

    Mr. Robert Lanctôt: That's exactly it.

    Mr. Normand Payette: Fine, thank you.

[English]

    The Chair: Thank you very much.

    Mr. Mark, you have seven minutes.

    Mr. Inky Mark (Dauphin—Swan River, PC): First, let me thank you for coming to the committee.

    How many treaties do we currently have, bilateral agreements on transfer?

    Mr. Normand Payette: We have roughly 13 bilateral treaties, and there are three international conventions to which Canada is a signatory. The first convention is with the Council of Europe, the second is the scheme for the transfer of convicted offenders within the Commonwealth, the third is the Inter-American Convention.

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    Mr. Inky Mark: How does it work today, when a lot of people have dual citizenship? How would this act work in the case that you're a citizen of another country, you go back there, you break their laws, and they treat you first as a citizen of that country?

    Mr. Normand Payette: So the scenario would be the following. There's a dual national who is sentenced to a term of imprisonment in the United States. He also has Canadian citizenship and he applies for a transfer back to Canada. Would that be it?

    We can't refuse citizens the right to apply to return to Canada. So he could apply, and if he has family support, the minister could consent.

    Mr. Michel Laprade: Some foreign countries don't recognize dual citizenship, so even if Canada is open to a request for transfer from somebody who is Canadian and also has another citizenship, they may be refused by the other country.

    Mr. Inky Mark: The reason I asked that question is that I have been offered dual citizenship, and that's the first thing I thought about: if I got in trouble visiting that country, I'd really be in bad shape.

    Is there a verifiable mechanism to determine whether the offender has been granted full and voluntary consent? I think that can be a problem, and probably is. How do you verify it?

    Mr. Normand Payette: As a rule--and it's confirmed in the legislation--if there's a Canadian who is going to be transferred to Canada, the correctional officials responsible for the physical transfer will confirm with the individual, and actually ask him to sign a document to confirm, that his consent is voluntary--that's for Canadians. Then, depending on which country, consent is usually confirmed. For example, with the United States, a magistrate will come up here to Canada and verify that, say, an American citizen wishing to transfer back to Canada actually does want to do that.

    Mr. Inky Mark: You indicated that 274 nationals were eligible for transfer. What if they end up being transferred back to their country of origin--I guess that's the correct term--and the penalty for the same infraction is twice that in Canada? How do you deal with that?

    Mr. Michel Laprade: We can transfer, but the country that receives the offender cannot aggravate the sentence. This is a concept that's been in the transfer of offender treaty since the first treaty was signed between the United States and Mexico, and then Canada and the United States. The principle of non-aggravating of sentence has always been there. So a country that transfers an individual to another country has to ensure that they don't aggravate. They can adapt the sentence to the maximum penalty applicable in their country in respect of an equivalent offence.

    Mr. Inky Mark: Does anyone keep track of these matters, what's on the books?

    Mr. Normand Payette: In the treaties there is an obligation for the signatory parties to keep each other informed on how they administer the sentence. It's a standard clause in the treaty. There is an obligation to inform the sending state.

    Mr. Inky Mark: Apart from the humanitarian motive for this legislation, which I support, one of the criticisms I've heard is that Canadian penal standards are imposed on foreign sentences, that we're trying to impose our system on foreign states. How would you respond to that?

    Mr. Normand Payette: Whenever we act as a receiving state, do you mean?

    Mr. Inky Mark: I think the Young Offenders Act would probably be a good example.

    Mr. Normand Payette: There are a number of principles at stake here. Probably one of the most important is deference to the sovereignty of the state. It works both ways. For example, if Canada accepts an offender, a Canadian, who is serving a foreign sentence, one of the principles is that you try to respect the sentence that was imposed by a foreign jurisdiction. It's only when these sentences start to conflict with our own laws that we have to step in. So that's one of the major principles of the transfer of offenders scheme.

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    Mr. Inky Mark: So the bill really insists on strict conformity with our criminal justice system.

    Mr. Normand Payette: It reflects treaty standards, but it can't ignore the charter and it can't ignore our Criminal Code. So in line with that, we do say that when a sentence does have to be adapted, we will adapt it. For example, if a person has a 12-year sentence, he's eligible for parole in four years, because everybody else in Canada, as a rule, is eligible for parole at four years. That's what's reflected in the legislation.

    The Chair: Thank you very much.

    Mr. Nystrom, for seven minutes.

    Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you, Mr. Chair.

    Let's take a Canadian incarcerated somewhere overseas. I notice there's a focus on the Canadian's family members and support in the community in considering eligibility for transfer back to Canada. To what extent would you focus on the conditions in a foreign prison in deciding whether or not that person is eligible to transfer back to Canada? What is the balance between the two? If the person has a good family network here, a community network here, a support network here, it seems to me that's quite important in what you are looking at in the department. What about the conditions in a foreign prison? Is that a major factor, and to what extent is it a factor? I mean Saudi Arabia or Iran compared to Great Britain or France.

    Mr. Normand Payette: We've set out a list of factors the minister must consider in determining whether or not to consent to the transfer. Certainly, as you say, the family and the support network he has in the receiving state are important. That's not to say there are no other factors the minister might wish to consider. Clearly, at times there are compelling humanitarian reasons to bring a Canadian back. It could be a terminal illness, it could be, as you point out, difficult conditions of incarceration. These are all factors that underlie the legislation. In short, the minister is not precluded from considering that factor.

    Mr. Lorne Nystrom: I wonder if you can elaborate--I know it's a very subjective thing. There are a lot different prison conditions in western Europe, Scandinavia, and compared with those in Iran, Saudi Arabia, and some other countries. To what extent is that a fairly major factor? Is that a minor factor? You say the minister can take it into consideration. What is the general practice? I know it's not an easy one to answer, but perhaps you could give us an idea.

    Mr. Normand Payette: The general approach is that we want to repatriate our own. The bottom line is that we want to transfer them all, but because there are so many factors, particularly with the consent issue.... There are three parties: the sending state, the offender, and Canada. That's all I can really say.

    Mr. Michel Laprade: I think you have to also consider the fact, for example, if you're taking the example of Saudi Arabia, that they would have to be part of one of the either bilateral or multilateral conventions we have. If they're not, the only way we can approach a situation like that would be through an administrative arrangement, the ones that we're proposing as a matter of fact in this bill, because a country is not part of any of the treaties. So these certainly would become cases that would be brought to the attention of the minister and would be fairly important to him.

    The basic considerations we have put in the bill are focusing on security issues--for intance, terrorism and criminal organizations--and on citizenship to a certain degree. When we're asking whether or not he has family ties or whether the offender has left Canada with the intent of never returning to Canada, the family ties are related to that.

    If a person who left Canada at the age of two months and is now 55 years old is requesting to come back to Canada because they have citizenship, the minister will have to consider it an important factor that maybe the person is asking to be transferred to Canada as a matter of convenience rather than real ties to Canada.

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    Mr. Lorne Nystrom: What about flipping this around? We have a foreign national who's currently in a Canadian prison and let's say that person's there for armed robbery, break and entry, or something of that sort. How much a factor are the conditions back in the foreign national's country in terms of whether or not we would agree to transfer the person?

    Let's take an extreme example--i.e., Saudi Arabia, and this person's a homosexual and they execute homosexuals in Saudi Arabia. How much of a factor are the conditions and realities back home in terms of whether or not we'd agree to transfer them?

    Mr. Normand Payette: It comes down to consent. Really, this would have to be initiated by the foreign offender, Mr. Nystrom. He would have to say I want to go back to Saudi Arabia. I suppose to a certain extent the minister has to respect the person's wish.

    The other consideration, too, is if he is a foreign national, what do we prefer? Do we prefer that if he can be, this person would be deported at end of sentence and then arrive in his or her country without any controls on them? You can see all the factors I'm mentioning here.

    Mr. Lorne Nystrom: To maybe make it more precise, would that person be briefed about what the law is back home? This person may not be aware of the situation facing him or her back home. You wouldn't want to be transferred back home if you're facing execution, obviously, for armed robbery, but--

    Mr. Normand Payette: If we did have a treaty, they have to be provided with information on how their sentence would be administered back home. That goes to the issue of informed consent.

    Mr. Lorne Nystrom: That's really my question, and you've answered it.

    The Chair: Mrs. Jennings, for seven minutes.

    Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you.

    I want to be clear, and thank you very much for your presentation and some of the clarity you've brought to the legislation.

    The first thing is what actually starts the process is that either a Canadian citizen who's been found guilty and is incarcerated abroad, in another country, and requests the possibility to come back and serve the sentence in Canada, or a non-Canadian citizen who's been found guilty and is incarcerated in Canada and all possibility of appeal has expired, requests the right to go back to their country of origin and citizenship and serve their sentence there. It's not Canada or the foreign country that starts the process, in the sense that it's that individual who asks for the right to be transferred.

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    Mr. Normand Payette: That's correct.

    Mrs. Marlene Jennings: Second, in order for any transfer to happen, for a Canadian citizen abroad to come back to Canada or a foreign national in Canada to be sent back to their country of origin, three parties have to consent: the individual who's concerned, the offender who's concerned; the foreign national country or administrative entity, foreign entity; and the Canadian government. You have to have the consent of all three before any transfer can happen.

    Mr. Normand Payette: Correct.

    Mrs. Marlene Jennings: The consent of the individual, the offender, can be withdrawn at any point up to the actual physical accomplishment of the physical transfer.

    Mr. Normand Payette: That's in the case of a--

    Mrs. Marlene Jennings: A Canadian.

    Mr. Normand Payette: Yes, if he's a Canadian. If a foreign country--

    Mrs. Marlene Jennings: A foreign national under our--

    Mr. Normand Payette: Yes, that's transferring from Canada.

    Mrs. Marlene Jennings: Yes, it could be different in the other country.

    Mr. Normand Payette: Yes, there are variations.

    Mrs. Marlene Jennings: In terms of the articles or dispositions that concern youth, Canadian citizens under the age of 18 who have been found guilty and incarcerated in another country, the questions that were raised by my colleague, Mr. Lanctôt, are very interesting. Obviously I'm looking forward to an affirmative and definitive response on that.

    But isn't it a fact that one of the reasons why those particular articles are clarified in this legislation is because we do have young people under the age of 18 who have been found guilty in foreign countries and want to come back to Canada, and those foreign countries aren't giving their consent because they feel that our legislative regime, justice regime for young offenders, is much more lenient than theirs, for instance?

    Mr. Normand Payette: That happens. And also on occasion a state will set as a condition for a transfer that they determine the level of security in which the offender will be held, and will determine when that person should be eligible for parole, which are conditions we cannot accept, which are really contrary to the issue of sovereignty.

    Mrs. Marlene Jennings: On the question that there could be a perception that we're trying to impose our system of criminal justice on foreign states, if there is that perception, those foreign states simply have to withhold their consent to either the transfer of a foreign national found guilty in Canada back to their country because they don't like the light sentences that we impose here, for instance, or if it's a Canadian citizen incarcerated in their country, they simply have to refuse their consent to allow that citizen to come back to Canada and be subject to the “evening out”--if we want to call it that--of sentencing.

    Mr. Normand Payette: They can do that, and they do do that.

    Mrs. Marlene Jennings: Exactly. I want to make sure it's clear that all three parties have to consent. And if there are any misgivings, either on the part of the Canadian authorities, on the part of the foreign state, or on the part of the offender, any one of them can withdraw their consent.

    Mr. Normand Payette: Correct.

    Mrs. Marlene Jennings: Thank you.

    The Chair: Thank you very much.

    Mr. Sorenson, three minutes.

    Mr. Kevin Sorenson: This isn't so much about humanitarianism as I think it is about recognizing our corrections system and our judicial system. I suppose to a certain degree that is what causes me some problems.

    In clause 13, you have clauses 13 and 14 together here. Clause 13 stays the same as what it was in the older act:

The enforcement of a Canadian offender’ssentence is to be continued in accordancewith the laws of Canada as if the offender hadbeen convicted and their sentence imposed bya court in Canada.

    But when you come to clause 14, that's new. It's something that's being added in there, is that correct?

    Mr. Normand Payette: Yes, it is.

    Mr. Kevin Sorenson: All right. It says “Subject to subsection 17(1)”, and it goes on and on, and it talks about:

...the sentence imposed by the foreign entity is longer than the maximum sentence provided for in Canadian law for the equivalent offence, the Canadian offender is to serve only the shorter sentence.

    Mr. Normand Payette: Yes. Mr. Sorenson, yes, it is new in the legislation, but it's a longstanding principle.

    Mr. Kevin Sorenson: That's what you're referring to, the aggravated part.

    Mr. Michel Laprade: Yes, but it's more than that. It's not just the aggravation of sentences; you cannot aggravate a sentence. The principles we have under the treaties, and under the multilateral conventions, are all founded on the principle of continued enforcement and adaptation, adaptation of the sentence to the maximum penalty of the receiving country, when the sentence imposed by the sentencing country exceeds the maximum of that sentence.

    Mr. Kevin Sorenson: My point here is twofold. First of all, obviously we're always only going to serve the lesser of the sentence, according to this act. But the other concern I have, and maybe I'm not a lawyer, so maybe you can explain it, is the part where it says it has been “imposed by the foreign entity is longer than the maximum sentence”. We recognize in this country that very seldom do judges ever hand out maximum sentences.

    What happens if someone in another country is given...? The maximum sentence here is ten years. It may be a ten-year maximum, and whereas the judges would normally say three years, the maximum in the Criminal Code is up to ten years. So this guy has been given 12 years in Saudi Arabia, or 15 years, and he comes back. According to this legislation, he must serve the maximum sentence.

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    Mr. Normand Payette: Yes, ten years.

    Mr. Michel Laprade: That's another element of treaties: we don't re-sentence the individual; we don't redo a trial and give a new sentence. There's no process; otherwise we would have to incorporate a concept that we don't have in our legislation, which is conversion, which means having a hearing and redoing a trial. We're not doing that; we're applying the concept of continued enforcement with adaptation.

    The adaptation, when we have to adapt the sentence to the maximum penalty the Canadian law provides for, is done with the sentencing country knowing about it. This means that we in advance tell the foreign jurisdiction, “Be aware that we are ready to accept this offender, but the sentence here in Canada, the maximum penalty for that sentence, is lower than the sentence you imposed on this offender.” That means we would have to adapt it to the maximum penalty in Canada.

    Mr. Kevin Sorenson: Maybe I can wait for another round, but I will quickly ask something, because I do want to get back to what Ms. Jennings said.

    In another country in a hypothetical situation here, a country wants a tougher sentence for this younger person, or whoever, to go back home. The kid says, “I want to go home. I don't even care; if we're going to get bogged down here over length of sentence, please send me home.”

    Our country says no, we will not impose a tougher sentence, we will only go the lesser sentence. Here we are in a negotiation between countries. Would that prevent...? For instance, even if the kid says “I want to go home even if it means signing off with this country, and the only way they'll sign off is if I get a tougher sentence, with what's happening here, I don't want to stay here so far from home”, we would say no?

    Mr. Normand Payette: It depends on how old the child is, what his sentence is, what is the offence for which he was convicted.

    I can tell you right now, even if he were an adult and he said he got 20 years for assault, and the maximum here in Canada for assault is 10 years if it's prosecuted by indictment, even if the guy jumps up and down and says “I want to do the 20 years, please take me”, we're not really in a position to say that. It's the issue of sovereignty and a conformity with our own legal standards. If you start opening the door to procedures like that, as I said, it's just contrary. We couldn't even do it for an adult, Mr. Sorenson.

    As I said, it depends on the child. That's why we try to inject the maximum amount of flexibility for adolescents, young offenders who are between 14 and 17, to say that when he is subject to a long sentence at least it can be deemed to be a sentence imposed for adults. At least that way there's more souplesse, there's more flexibility. In that case we can maybe, as I said, broaden the application in the legislation.

    The Chair: Mr. McKay, three minutes.

    Mr. John McKay (Scarborough East, Lib.): Is Taiwan a foreign entity?

    Mr. Normand Payette: Yes, for the purposes of this legislation.

    Mr. John McKay: What part of foreign entity is it, which part of the foreign entity definition?

    Mr. Normand Payette: You can start with sections 31, 32, and then 33, Mr. McKay.

    Mr. John McKay: I'm just looking at the definition for the time being.

    Mr. Normand Payette: I know, but you see there is a definition in 33. It says“In sections 31 and 32, 'foreign entity'means”, and then you have your list of states for the purposes of 31 and 32.

    Mr. John McKay: So what part is Taiwan?

    Mr. Normand Payette: We're not really sure; that's why we have “foreign entity such as”.

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    Mr. John McKay: Does Canada recognize Taiwan as a foreign state?

    Mr. Normand Payette: Canada has a one-China policy, so as a rule Canada will not sign a treaty or a binding agreement with Taiwan. That is why we introduced the notion of an administrative arrangement.

    Mr. John McKay: How can you have an administrative arrangement with something you don't recognize?

    Mr. Normand Payette: Normally with treaties you get an Order in Council for signature and ratification. So cabinet...essentially the government ratifies or recognizes the treaty.

    Mr. John McKay: So this is the winking, blinking, and nodding approach to reality.

    Mr. Normand Payette: This will allow....

    You know where we got the idea. It exists in the mutual legal assistance legislation, where the Minister of Justice can conclude an administrative arrangement to cooperate with another country. So what we've done is consulted with our foreign affairs department colleagues, and we came up with this scheme, because there are other entities that are interested in signing administrative arrangements with us for the repatriation or the transfer of Canadian offenders.

    Mr. John McKay: So even if Taiwan met the criteria under international law of a state, you still wouldn't recognize it because of your policy.

    Mr. Normand Payette: Well, it's more a question of.... The way it was put to me by the Department of Foreign Affairs is that Canada has a one-China policy.

    Mr. John McKay: We'll not deal with the distortions of the foreign affairs department's views on that particular issue. But having said that, it seems passingly bizarre that this is our fourth-largest trading partner in Asia Pacific, the 13th largest overall, and we don't recognize them as a state.

    The other question I had was what impact would this bill have on extradition, particularly with respect to extradition of Taiwanese bad guys? I'm given to understand that the Taiwanese who are bad guys think that Canada is just a wonderful place because we have no treaties or arrangements for extradition with Taiwan, so they can just live here in the lap of luxury, far removed from the criminal reach of the government of Taiwan.

    Mr. Normand Payette: I know very little about the extradition process, but do you mean the scenario in which the Taiwanese would come to Canada and--

    Mr. John McKay: Well, the Americans have an arrangement; I think it's actually an act of Congress. So when a Taiwanese bad guy goes to the United States, there is a formal process for the extradition of that bad guy. But in Canada we have nothing.

    My question is, does this somewhat duplicitous way in which we look at Taiwan in this bill have any impact on extradition arrangements? Are we still in this void?

    Mr. Normand Payette: Well, the basis of any transfer right now under the legislation is consent, and extradition, as I understand it, means that whether you consent or not, you're gone. So I don't really see how it could--

    Mr. Michel Laprade: Extradition and transfer of offenders don't do the same thing. Extradition is to send somebody based on charges or to serve a sentence that was imposed by a foreign jurisdiction, which they are trying to evade. Transfer of offenders is nothing like that.

    Mr. John McKay: I understand. There's a conviction already in place, consent of the parties, and all the rest.

    The Chair: Thank you, Mr. McKay.

    Mr. Lanctôt, pour trois minutes.

[Translation]

    Mr. Robert Lanctôt: Three minutes, that is not much time. Therefore, I will try to present my two points very briefly.

    Let's take the case of a criminal offence, where in Canada only a minimum sentence would be imposed, and no jail time. However, if the offender is very young, this could not be implemented. There would be no consent.

    Mr. Michel Laprade: Yes, it could be applied.

    Mr. Robert Lanctôt: However, if the offender comes to this country, he would have a minimum sentence, and would have to either go to prison or something like that. This means that the sentence would be a lot worse. Therefore, can this be done anyway?

    Mr. Normand Payette: No, we can't mete out a more severe sentence than the one that has already been handed down.

    Mr. Robert Lanctôt: Therefore, in that case, consent cannot be given.

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    Mr. Michel Laprade: In order to establish whether individuals can be transferred, the first thing to do is to determine whether the crime committed abroad would be a criminal offence here in Canada. The issue of sentencing only comes into play later.

    If, at the outset, an individual meets the requirements for dual criminality, he or she would be eligible for transfer. The sentence really depends on the equivalence between Canadian sentences and those handed out in States overseas.

    If a sentence handed down in a foreign country is a lot less severe than the one we would hand down here in Canada, we have no other choice than to impose the sentence given in the other country, since we cannot impose a more severe sentence.

    Mr. Robert Lanctôt: That really answers my first question.

    My second question is a bit more complex .

    Take the case of a foreign national from a country with which we have an agreement, a country that is not widely known as a haven for terrorists. Let's say that this particular person commits an act of terrorism, but that we can't be sure that he will serve out his sentence if we send him back to this native country. What do you do in such cases? I know that you have to deal with things on a case-by-case basis, of course, but what assurance can we have that this person will serve his sentence?

    Mr. Normand Payette: What do you mean exactly?

    Mr. Robert Lanctôt: Well, you have a foreign national who comes to this country and commits an act of terrorism. We have signed an agreement with his native country, but let's suppose that once the individual returns home, he is freed without further ado; they practically congratulate him for what he has done. In that case we would have signed an agreement with that particular country, but we would have been taken in.

    Mr. Normand Payette: Mr. Lanctôt, that might happen once, but it wouldn't happen again. Normally...

    Mr. Robert Lanctôt: What type of follow-up procedures do you have? Do you send people to those countries to investigate?

    Mr. Normand Payette: Normally, when we sign a treaty, we require the other country to inform us on the execution of the sentences. For example, if an individual who has been jailed in the other country escapes, that country is required to warn or inform the partner country. We are required to implement provisions on information sharing.

    As far as the follow-up measures go, if you want to know whether we're going to ask the country about what happened to the individual in question, well, let's just say that we can do that of course, but you shouldn't forget that there are more than two foreign nationals who come to Canada each year.

[English]

    The Chair: Merci.

    Mr. Maloney, for three minutes.

    Mr. John Maloney (Erie—Lincoln, Lib.): This act is based on a consultation paper done in 1997. We're six years down the road. Can you assure me that the circumstances today are the same as the circumstances of 1997, upon which this act is based?

    Mr. Normand Payette: By circumstances, do you mean the elements--

    Mr. John Maloney: Is this act based on the current situation?

    Mr. Normand Payette: It's true. But I can tell you, for example, there are certain elements of the act we had to consult on a little later--for example, in 1998, the provisions that deal with the mentally disordered. We made sure we consulted with the provincial health ministries and the provincial attorneys general, also the boards of review--les commissions d'examen--for the mentally disordered, to make sure they agreed with the procedure we set out, that they felt comfortable.

    But by and large, the answer to your question is yes.

    Mr. John Maloney: The majority of respondents that replied to your consultation paper were in favour. How many were there, do you recall?

    Mr. Normand Payette: There were about 14 organizations that responded.

    Mr. John Maloney: All those were in favour, or were there some that were not in favour?

    Mr. Normand Payette: As I said, the majority of them.

    Mr. John Maloney: What were the negative comments?

    Mr. Normand Payette: I have a list of all the issues, Mr. Maloney, but I don't recall.

    Mr. John Maloney: I can appreciate that, but perhaps you could provide them to us. I'd be interested in seeing what the--

    Mr. Normand Payette: If you like, I'll give you a list of how we've tabulated the responses, sure.

    Mr. John Maloney: Just for my own interest, is there any monetary exchange between countries? If we take a Canadian national, is there any monetary exchange coming from the sending country to finance his incarceration, or vice versa?

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    Mr. Normand Payette: No. It's set out in the treaties, usually, who bears what costs in terms of transport, who offers the escort, for example--which countries bear which costs.

    Mr. John Maloney: Is there any informal arrangement that we'll take one of yours, you take one of ours? How does that work?

    Mr. Normand Payette: Not that I know of.

    Mr. John Maloney: How long does the normal processing take, or is there a normal?

    Mr. Normand Payette: The operations people tell me three to six months, but it's more on the six-month side.

    Mr. John Maloney: Last year, how many came in and how many prisoners went out?

    Mr. Normand Payette: On average per year, 85 Canadians are transferred back to Canada, and an average of two foreign offenders are returned to their country of citizenship. That's the average.

    The Chair: Thank you very much.

    Mr. Mark.

    Mr. Inky Mark: Thank you very much, Mr. Chairman.

    Can you provide the committee with a list of the countries that have bilateral agreements with us and the ones that have signed international conventions, so at least we have a better idea of the flow of the traffic?

    Mr. Normand Payette: We do have that information. I will get that from Serge Boudreau.

    Mr. Inky Mark: Perhaps you could also provide us with information on the incarcerated Canadians abroad, along with the countries they currently are in.

    Mr. Normand Payette: I can ask if he has that, Mr. Mark. You want the list of countries with which we have bilateral treaties and conventions and the numbers and, if possible, the breakdown. You'd like to know which countries--

    Mr. Inky Mark: I'd like to know where our Canadians are getting into trouble.

    Mr. Normand Payette: I can tell you that our biggest trading partner is the United States. The majority of them are in the United States. As a matter of fact, on any given day they have about 400 requests for transfers that are pending, and the majority are from the United States.

    Mr. Inky Mark: This is my final question. Out of the 972 foreign nationals who are incarcerated in Canada, why is it that only 270 are eligible?

    Mr. Normand Payette: Just the luck of the draw. We just don't happen to have treaties with the country, or their country of origin didn't sign on to a convention. That's all.

    Mr. Inky Mark: So where do most of these countries originate, then, the ones that don't have agreements with us? Just generally, can you explain? Where do the 700 who are not eligible come from?

    Mr. Normand Payette: Do you mean what happens, or where do they come from?

    Mr. Inky Mark: Where do they come from? Is it any particular part of the hemisphere?

    Mr. Normand Payette: It's really a mixed bag. I don't have those numbers handy, Mr. Mark. But I will get you the list.

    Mr. Inky Mark: Thank you.

    The Chair: Thank you very much.

    Mr. McKay.

    Mr. John McKay: On the point of the negotiation of this transfer, I was involved in one a couple of years ago. My recollection is that the individual was sentenced for fraud for something like ten years in a Pennsylvania jail. Obviously, he was enthusiastic about coming back here. The American view on it was that they wanted us to keep him in jail right to the end of his sentence. Ultimately, they accepted the representations of the government that he would be eligible for parole immediately upon his return to Canada. But after he returned to Canada, he seemed to spend an inordinate amount of time in Kingston, even though his parole eligibility was already extant as far as Canada was concerned.

    Can you give me an understanding of how that negotiation goes on, and why would there be a delay in terms of putting him out on the street?

    Mr. Normand Payette: Do you mean in terms of negotiating with the American correctional authorities?

    Mr. John McKay: Yes. What's the negotiation process like when you're dealing with the American authorities on something like that, where our parole eligibility would have put him on the street a lot quicker than the American parole eligibility?

    Mr. Normand Payette: In terms of the package of information, we explain to the offender how his sentence will be administered in Canada, and the points in the sentence at which he's going to be eligible for full parole are set out. It's explained to him.

    Operationally, the people in the international transfer section of the Correctional Service of Canada are talking with these people all the time in terms of, well, we don't have the package; there's a bit of information missing. At that point they can be just discussing process and saying, on the issue of sentence, how is it going to be administered in Canada? Is it true he's going to be eligible at one-third? Is he going to be eligible for statutory release at two-thirds?

    When you're talking about American correctional authorities saying that this is the condition under which we agree to transfer the individual, there's not really much that the functionary can say other than no, he's going to be eligible when he's eligible and basically that's it.

    What you're alluding to happens in California as well. The State of California refuses to transfer offenders, because they're dissatisfied with the parole eligibility period.

    We try to explain to them--and I think your case illustrates it--that just because a person is eligible at one-third doesn't mean that person is going to get out. The parole board will make a careful assessment of the case. If the parole board is convinced that offender poses an undue risk to society, that offender does not get out.

    Let's get back to the California example. They're really trying to impose their legislation on Canadian legislation. What happens is, the offender is deported. Once he's earned his.... They have a statutory remission system; they find out they're obligated to release the guy after a set period. They deport him back to Canada and he comes back here without any control. He winds up spending less time under correctional supervision than he would have if they had agreed to transfer him. If they had agreed to transfer the offender, that offender would be supervised until warrant expiry date. You see, those are all the issues--

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    Mr. John McKay: So there's a fair bit of horse-trading that goes on here.

    Mr. Normand Payette: Well, horse-trading.... There's really not much discussion other than trying to sway them and saying, look, if you do transfer him, we can guarantee he will be supervised until end of sentence.

    The Chair: Thank you, Mr. McKay.

    We'll have Mr. Cadman for three minutes.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chairman.

    Just for clarification--I think I know what the answer is going to be--I have a question on clause 14 and the maximums. A Canadian in a foreign jurisdiction who is convicted and sentenced to life for our equivalent of break and enter with intent to commit an indictable offence could be given a life sentence. If that happened in a foreign jurisdiction, would a Canadian coming back here be looking at that life sentence being upheld for a B and E?

    Mr. Normand Payette: That's the maximum for a B and E right now, isn't it?

    Mr. Chuck Cadman: That's precisely my point. I thought I was going to get that answer. I just wanted to clarify it.

    I just have one other quick one. Do you have any breakdown on or can you give us an idea of how many of these offenders or what proportion of offenders who come back to Canada essentially wind up on parole right away, as opposed to...? I'm just looking at the costs involved in incarcerating people for longer terms. Do we have an idea of how many come back and are paroled when they step off the plane? Would you have any idea of the percentages?

    Mr. Normand Payette: It really varies, but I can tell you it depends on the work-up. If the person was incarcerated in the United States, it would depend on the quality of the case management work that was done in the United States, if the system was compatible. Nevertheless, the correctional authorities still have to spend some time assessing the individual before the parole board can make any pronouncements on whether or not to grant parole.

    Mr. Chuck Cadman: What about things like statutory release? How does that work?

    Mr. Michel Laprade: It's basically impossible with the proposed bill. There are two ways of calculating two different things. There's parole, which is one-third of a sentence. This is based on the sentence the offender received when it started in the United States or another country, and we calculate the eligibility for parole from that point in a sentence that takes into account the credits granted to the offender. That eligibility basically means that if he comes to Canada, he will be eligible on the date that corresponds to that one-third.

    However, if the one-third has already passed, there's a provision in the bill that says the parole board doesn't have to review the case for six months after the transfer in order to allow Corrections Canada or the provincial corrections service to know about the offender and to try to understand what he represents in terms of risk. We have a fair amount of documentation coming from other countries on that aspect.

    With statutory release the calculation is made from the date of transfer. We calculate whatever remains to be served in the sentence, and we take the two-thirds point from the date of transfer. There's no statutory release for offenders at the point of transfer; it's always two-thirds of what remains to be served.

º  (1645)  

    The Chair: Mr. Maloney, you have three minutes.

    Mr. John Maloney: Who or what board or authority reviews or assesses these applications? Who does it?

    Mr. Normand Payette: You mean the processing as such? What you have is the International Transfers Unit at the Correctional Service of Canada, which does the case preparation. It prepares the file and then it's sent up to the minister for decision, so it's the minister.

    Mr. John Maloney: It's done at the ministerial level?

    Mr. Normand Payette: Yes.

    Mr. John Maloney: At least on the Canadian side, is there an appeal process for denial of consent or a mechanism for reapplication?

    Mr. Normand Payette: They can reapply, but they also have the option to rebut--at least whenever they know the case that's stated. They can present observations.

    Clearly, in the current legislation there's no obligation for the minister to explain why he does not consent to a transfer, for example.

    Mr. John Maloney: Does he generally, though? There's no obligation, but does he in fact do so?

    Mr. Michel Laprade: If there have been appeals to the minister?

    Mr. Normand Payette: No. In other words, does the offender have the opportunity to respond to the motives for which the minister...?

    Mr. Michel Laprade: Yes, they do. They get information from Corrections Canada. The transfer unit at Corrections Canada has to examine and prepare the case. Whenever the case is prepared for the minister, the minister envisages denying the application. Corrections Canada then has to inform the offender of the intent of the minister and the basis on which this would be done so the offender has the opportunity to make representations in case the minister wants to change his decision.

    Mr. John Maloney: Thank you.

    The Chair: Thank you very much.

    Mr. Mark.

    Mr. Inky Mark: I just have a short question here again. This was brought up previously, and I'm reading from a Library of Parliament document.

    A person under 12 can't be charged in Canada, right? It says that such a person may be a convicted criminal in a foreign country, so any Canadian under the age of 12 can be transferred under the terms of this act but may not be detained under his or her return to Canada. So what happens?

    Mr. Normand Payette: We'd remit them to the custody of the provincial authorities that are normally responsible for children, and the children would be remitted to their legal guardians, whoever they might be; it could be a parent in Canada.

    Mr. Inky Mark: Did the provinces have any comments when you asked them about this?

    Mr. Normand Payette: I don't remember. I'd have to go through the notes.

    Mr. Inky Mark: Do they see it as problematic down the road? Are they concerned?

    Mr. Normand Payette: As I said, I don't recall. Mr. Mark, we're trying to broaden the net. This is not something we envisage will happen on a regular basis.

º  (1650)  

    Mr. Inky Mark: I agree with you. It's just that it's possible.

    Mr. Normand Payette: It is possible, yes, but as I said, I don't recall.

    Mr. Inky Mark: Thank you.

    The Chair: Thank you very much.

    Mr. Cadman. I think this will be the last question.

    Mr. Chuck Cadman: This is just to follow up on what Mr. Mark was asking. Let's just say an 11-year-old was in another jurisdiction, committed a homicide, and was incarcerated in that jurisdiction for it. What happens when they come back to Canada? Do they automatically go into the provincial system, or do they just basically go home? I think that's what Inky was really getting at.

    Mr. Normand Payette: In terms of setting up a transfer, it depends on the case. Clearly, if you have a legal guardian or a parent who is waiting for the child and is capable of taking care of the child.... This is something we won't do cold turkey, I can assure you. The International Transfers Unit is used to working with provincial authorities, even in the case of offenders who are under provincial authority. As I said, it depends on who the legal guardian is.

    If the child welfare agencies have to get involved, then they will be involved, and--

    Mr. Chuck Cadman: They can look at it first if child protection has to be involved.

    Mr. Normand Payette: Yes. None of this is done cold turkey.

    The Chair: Thank you very much to the witnesses and the members of the committee.

    Before I adjourn, I would like to bring it to the attention of the members of the committee that tomorrow morning at 9 o'clock there will be a subcommittee meeting on the solicitation legislation. Those who are involved will have received notice in your offices today.

    Next week on Tuesday, at both 9 o'clock and 11 o'clock, Wednesday at 3:30, and Thursday at 9 o'clock we'll be hearing witnesses on Bill C-20. Next Thursday we'll possibly have ministers in on the supplementary estimates for the 11 o'clock meeting, and that's what we're attempting to do now. We're trying to get either the Solicitor General or the Minister of Justice on supplementaries next Thursday at 11 o'clock.

    I have a notice of motion from Mr. Breitkreuz on the supplementary estimates for the Solicitor General, so that's the reason we're pursuing that one first, and then we will turn to clause-by-clause on Bill C-23 the week of the 20th.

    Mr. John McKay: What about tomorrow?

    The Chair: We couldn't get witnesses together on Bill C-20 for tomorrow, nor could we get either of the ministers, so tomorrow at 11 o'clock you can do your homework for next week.

    Thank you very much to the witnesses, and thank you to the committee.

    The meeting is adjourned, and we'll see those involved tomorrow morning at nine; otherwise, we'll see you next week.