Two corrections and criminal justice events in the past week caught this writer’s attention.  First, a small one in terms of policy and programs, but with huge personal impact.  The sense of freedom that Omar Khadr is now savouring must be beyond our imagining.  A big part of it? – a simple bicycle given to him by his lawyer Dennis Edney.  ”œI can’t get him off it!”, exclaimed Mrs. Edney.  It reminded me of the summer a few years ago when a friend was released on day parole to Ottawa after seven long years in penitentiary and with an expired drivers licence.  He was given a bicycle, and with that and the trails around Ottawa he experienced the exhilaration of freedom in a way that you and I have forgotten.

No, the lack of a bicycle is not a criminogenic factor.  But for even an hour a day, enough with the endless, useless parole conditions, the pointless electronic monitoring bracelets, the scolding by a Parole Officer younger than your children – give every parolee a bicycle and let them ride the tree-lined paths and river banks til they’re exhausted.  A better investment in public safety than the Harper punishment agenda, and a practical way to get parolees to jobs, community treatment and volunteer activities.

The other event was the tabling of yet another criminal justice bill, landing with the thud of an over-ripe piece of fruit.  By my close reckoning, Bill C-60 is just about the last of the criminal justice electoral commitments of this government.  There are two that have not seen the light of day, presumably because even the most ardent Harperites have recognized their inanity.  More on those in a few days.

So why should you care about C-60, aka the ”œRemoval of Serious Foreign Criminals Act”?  Particularly since it received exactly zero media coverage.  You should care simply because in an era of staggeringly cynical and manipulative law-making, the government has absolutely no intention of implementing at least half of this bill.  Now I regard criminal law-making as somewhat of a sacred act:  it is an expression of common values, and a pillar of organized, democratic society.  Tabling a bill purely for political points should upset you.

To understand C-60, you need to know that as much as the current government hates domestic offenders, it actually hates foreign offenders even more.  While foreigners make up a very small percentage of the offender population in Canada (about 1,000 out of 23,000), the Harperites are tripping over themselves to get them out of our country as fast as possible.  We pause for a moment of irony – every story must have one.  And that is that the Harper government has been strongly criticized for refusing to take back many of the Canadian offenders incarcerated in other countries, whilst trying to shovel foreigners out of Canada.

But back to the main story.  The primary means for removing foreign offenders from Canada is deportation.  At its most basic, deportation requires a legal framework, and the consent of the sending country and the foreign country to the removal of the miscreant.  The consent of the miscreant is irrelevant, except insofar as it expedites or slows the removal process.  For foreign offenders under sentence, it is important to note that the minute the individual leaves Canadian soil, the sentence ends.  So, for example, a foreigner who is convicted for a serious drug offence here and sentenced to perhaps 12 years, and who is deported at year two of the sentence, goes home scot free.

So there is an inevitable tension between wanting to get rid of the person quickly, but not wanting to see them escape all consequences of the crime.  Therefore the current law states that an imprisoned person under a deportation order cannot be removed until they have served at least one-third of the sentence, usually considered the denunciatory portion of the sentence and also the first eligibility for full parole (excepting life sentences).

But not every deportation order can be fulfilled.  For example, some countries do not take their citizens back.  And some countries of citizenship no longer exist, such as Yugoslavia.  And sometimes the removal process just takes a very long time.  So the offender serves one-third of the sentence, and is then eligible for parole consideration.  What upsets the current government the most is this group of offenders who are then released on parole and wander through our cities like marauding hordes.  Oh wait, that’s the government’s description of the problem.

Having defined the problem thusly, the government made three promises.  First, they said that they would give sentencing judges the authority to also order immediate deportation of such people.  That echo you hear is the sound of laughter from judicial benches across the country.  The reasons should be obvious to even the most casual observers of criminal and immigration law.  Not to mention that if there is a problem, it is in actioning the order, not getting the order.  You will not find that commitment fulfilled in C-60.

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Second, the government promised to prohibit persons under deportation orders from being eligible for parole, so as to reduce the afore-mentioned marauding hordes.  But that isn’t too smart an idea – if the foreigner cannot be deported before the end of the sentence, they will be doubly disadvantaged.  They will serve longer in custody than may be necessary from a risk-management perspective, and they will be released cold at the end of the sentence with no reintegration support.  You will not find that commitment fulfilled in C-60.

But not to worry.  There is another law that allows foreign offenders to return to their country of origin, the International Transfer of Offenders Act.  This Act has more of an actual public safety and humanitarian basis.  It is part of an international arrangement that recognizes that prisoners will do better in the long run if they serve their sentence in their country of origin, where they can access domestic programs and be gradually reintegrated.  Canada is party to 15 bilateral and three multi-lateral transfer treaties, thus linking us with over 100 countries.  All the transfer treaties world-wide have several common, fundamental principles (some of which Canada actually pioneered).  One of these is three-party consent.  The offender must agree to the transfer, as well as the sentencing country and the receiving country.   The policy reasons lie in the rehabilitative and humanitarian underpinnings of the scheme – forcing someone to go home can undermine the objectives of a transfer.

Now it is true that some countries have grown uneasy with the volume of foreign offenders in their prisons – in some European countries, close to half their inmates are from elsewhere and are a drain on the public purse.  That’s not the case in Canada, as noted above.  And indeed of the 1022 foreign offenders in Canadian penitentiaries in mid-March of 2012, only about 315 were actually eligible to apply for a transfer.  None were actually transferred.  But where evidence is non-existent, ideology is always ready to lend a hand to the Harper government.  So the third electoral commitment was to forget about the cumbersome deportation process and just amend the transfer scheme to delete the requirement of offender consent.  Thus the offender could be sent home quickly and still subject to the penalty imposed by our courts.  And why not, you say?

Did I mention that three-party consent is a fundamental pillar of the international transfer partnership?  That it appears in the treaties that bind us to over 100 countries?  That every last one of our treaties would have to be re-negotiated?  At a time when Canada has already been harshly criticized by these other countries for failing to live up to the existing transfer principles?

When asked what the government plan is for re-negotiating all these treaties to delete offender consent, senior officials replied ”œthere is none”.  No plan, zero, zip.  There is no plan to actually implement this part of the bill, except for the off-chance that new bilateral treaties are negotiated in the future.  And there are actually no plans to do that either.  All the countries with whom we normally do transfer business are already under active treaties with us.  (Since the 1978 inception of the program, 85% of the transfers of foreigners out of Canada have been to the U.S.)  There is exactly one treaty still up in the air, with India, but it has been under negotiation for close to 20 years now so it seems unlikely that anyone would be very interested in starting all over again with a no-offender-consent twist.

As noted above in the paragraph of irony, the Harper government at one point was denying the return of as many as 73% of the Canadians incarcerated abroad who wanted to return home.  (For the first two decades of the program, the denial rate was 0%.)  This did not go unnoticed or uncriticised by our foreign partners.  For example, the U.S. was moved to send a formal diplomatic note, and a summit of senior American and Canadian representatives was convened in Ottawa to discuss Canada’s dismal performance.  Our partners are extremely unlikely to look favourably upon yet another political stunt such as C-60.

So when you hear the rhetoric of the Harper ”œaccomplishments” including ”œcracking down on serious foreign offenders”, just remember:  these wheels are just spinning.

Mary Campbell
After being called to the Ontario Bar in 1984, Mary Campbell joined the Department of the Solicitor General Canada (later Department of Public Safety Canada) where she shaped criminal justice public policy and legislation for nearly 30 years. Retired in 2013 as Director General, Corrections & Criminal Justice, Ms. Campbell continues to contribute to public policy through research and writing, public debate, education of students and judges, and fearless human rights advocacy for persons in the prison system.

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