Bill C-299 (Historical)

An Act to amend the Criminal Code (kidnapping of young person)

This enactment amends the Criminal Code to prescribe a minimum punishment of five years when a kidnap victim is under sixteen years of age, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the victim.

Criminal Code

[The Deputy Speaker, NDP, Joe Comartin]

It being 5:52 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-299, under private members' business.

Call in the members.

And the bells having rung:

The House resumed from October 5 consideration of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), as reported (with amendments) from the committee; and of the motions in Group No. 1.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, thank you for this opportunity to speak to Bill C-299.

As a member of the Standing Committee on Justice and Human Rights, I have worked on this bill with my 11 other colleagues to look at its strengths and weaknesses.

I must say that I understand where the hon. member for Kootenay—Columbia is coming from. I am sensitive to that and I absolutely do not doubt his desire to improve things.

Unfortunately, the bill before us may not have the scope or produce the results that my colleague is looking for. I think that is a shame.

I will provide two sound reasons why we strongly oppose the passage of this bill.

When we look at case law and the sentences handed down in court, we see that the sentences far exceed the five-year minimum proposed in this bill. The minimum sentence of five years has no practical purpose. It is almost impossible to find a case where the sentence was less than five years.

When we go back a number of years, we can see that generally, sentences imposed in similar cases ranged between 12 years and 14 years. That is what one of our witnesses, retired Supreme Court Justice John C. Major, told us during the work of the committee. In addition to confirming that he did not find a sentence that was less than 10 years for this type of crime no matter how far back he looked, the honourable justice questioned the purpose of including a minimum sentence in the legislation.

I must say that this concept, this option, lends itself to discussion. I am perfectly open to that. It is not a problem at all to think it may be useful to contemplate mandatory minimum sentences for certain categories of crime. Unfortunately, hon. members opposite do so too systematically, without any basis. They do not rely on experience, or on research that support the fact that it is good to have mandatory minimum sentences for certain categories of crime.

I can even mention the R. v. Mills case, in 1998, in which a court of appeal judge decided, after reviewing the accused's conviction, to reduce from 13 years to 11 years the sentence that had been imposed and which was significantly longer than the five years proposed in Bill C-299.

Therefore, the concern raised by the member for Kootenay—Columbia is totally unjustified.

The second reason is the deterrent effect invoked in many bills amending—or dare I say “altering”—the Criminal Code. Unfortunately, this deterrent effect has never been clearly shown in our work.

Of course, I am not referring to belief, which is one thing. I must admit that some witnesses firmly believed in the deterrent value of a mandatory minimum sentence in the act. Our work in committee also clearly showed it, and this was even supported by Michel Surprenant, who was representing the Murdered or Missing Persons' Families Association.

Mr. Surprenant talked about the most despicable, the most shocking aspect of a child abduction, namely the sexual assault. He said that sexual predators ignored logic and were primarily, if not exclusively, guided by their instinct.

This raises a question. If we follow Mr. Surprenant's reasoning, no sexual predator will take into account this kind of clause, even if it is included in the Criminal Code, since he will never have it in mind. Rather, he will be guided by his instinct.

I think this is somewhat simplistic. During our work, we often received confirmation from experts that the typical criminal, regardless of the category of crime, does not act thinking he may get caught in the act. He always thinks he can commit a crime with impunity, without ever being caught. Therefore, since criminals believe they can get away it, why include this type of clause as a deterrent?

I would like to add to that the fact that in the course of our work, some of my colleagues unfortunately demonstrated a degree of confusion when they attempted to support arguments of this kind. For example, my colleague from Delta—Richmond-East cast doubt on the value of studies conducted in the United States on minimum sentences of up to 20 years. When she questioned our witness, Michael Spratt, he clearly stated that no studies in the United States had been able to demonstrate that a 20-year minimum sentence had a deterrent impact. How then could a five-year minimum sentence have such an impact? Unfortunately, this did not convince my colleague. I therefore leave her to her own reasoning, and to her conscience, because I do not want to give people a false sense of security.

Confusion reigned for my colleague from Brampton West as well, who in speaking of deterrence confused it with the restraint represented by incarceration. During the appearance of one of our witnesses, the member for Brampton West interrupted frequently to say that incarceration was deterrence when it is nothing of the kind. Those who are incarcerated cannot do harm, but prior to incarceration, the threat thereof is not a deterrent.

From my standpoint, it is rather unfortunate to see this bill go forward, when a rather serious study is known to have shown that it might give people a false sense of security.

I call upon my colleagues in this House to consider this unintended impact and the possibly very harmful effects it might have, and to reject Bill C-299. The problem is not the Criminal Code, but rather the mechanisms used to implement it within society.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I stand before all members of Parliament today to speak to private member's bill C-299, an act to amend the Criminal Code to impose a mandatory minimum sentence on a stranger who is convicted of kidnapping a child under the age of 16.

The smile of a child is one of innocence, based on an understanding that those in authority will watch over him or her. When a child reaches his or her hand out, it is in trust. It is the human touch that provides children with the security in which they find comfort. Every parent, grandparent or person who has the opportunity to feel that innocence and trust of a child knows exactly what I mean.

However, there is a small segment of society who do not appreciate the innocence of a child. They, on the other hand, see the vulnerability of the child and the ability to manipulate them, with Clifford Olson and Paul Bernardo being two of the most notorious.

More so, as a society, we soon forget that the families who are directly affected by these tragedies then live with the emotional scars for the remainder of their lives.

First, there is the struggle of wondering if the child is safe. Then there is the struggle of wondering if they will ever see their child again. Unfortunately, in most cases, reality strikes and hope turns to despair.

Someone asked me why I have such a deep desire to deal with kidnapping and, in particular, the kidnapping of young children. I have two reasons, one more close to home than the other.

The first involves Michael Dunahee, Mindy Tran and Kienan Hebert. I will speak to those three children in a few minutes.

As the House knows, I was a member of the RCMP for over 20 years. I have investigated everything from murder to domestic disputes to grow ops. I have dealt with death more times than I wish to remember and, to some degree, have become insensitive to it. However, the toughest thing I ever had to do as a police officer was to give a next-of-kin notification to a parent. On four occasions I have had to tell a parent that his or her child would not be coming home. It is not something that I would wish upon anyone inside or outside of this place. I have no words to describe the feeling of watching the heart and soul being ripped out of a mother and father. That is why I feel so strongly about this issue.

On Sunday, March 24, 1991, Michael Dunahee went missing from a playground in Victoria, B.C. He was four years old. Michael has never been found and the person who kidnapped him has never been captured.

During committee hearings, Crystal Dunahee gave testimony. It was heart-wrenching to watch her struggle after all those years without knowing where Michael was and hoping that he would still walk through the door of her Victoria home some day.

Mindy Tran was eight years old when she went missing while riding her bicycle on the street in Kelowna, British Columbia, in August of 1994.

Along with hundreds of other police officers, I was part of the ground search team desperately trying to find Mindy. Unfortunately, she was found dead six weeks later in a shallow grave not far from where she was taken. I cannot imagine what was going through that young girl's mind after being kidnapped, but I am certain it was not pleasant.

Kienan Hebert was three years old when he was kidnapped from his home in Sparwood, British Columbia, in September of 2011. A suspect was identified early in the investigation and Kienan was returned safely home to his parents.

We had three different outcomes, all started with a kidnapping by a stranger.

Whether it is the Clifford Olsons, the Paul Bernardos or others of the world, one thing is for sure: the acts they committed all started with a stranger kidnapping a child under the age of 16.

They have absolutely no concern whatsoever for the emotional toll they placed on families affected for the remainder of their lives. They have no concern for the child they kidnapped, for if they did, they would surely never commit the crime in the first place.

Society must be assured that the crime of stranger kidnapping of a child under the age of 16 is dealt with severely. This is why we must ensure that a mandatory minimum sentence be placed upon anyone convicted of this crime.

Do not forget that most people who commit this act have increased their propensity for violence, and their need for self-gratification becomes worse over time. Unlike some commenters I have heard, I do not believe that these people can receive any type of program available that would ensure they can safely integrate back into society.

I have listened to those who say that in some cases the perpetrator has mental issues and should be treated differently. I disagree. Most, if not all, individuals who kidnap children are cold and calculating and know exactly what they are doing.

I have listened to the opposition parties state that mandatory minimum sentences are an intrusion on the judges' powers. In my opinion, and for the children who are kidnapped by strangers every year, they are wrong.

This is not about judges' power. This is about children's rights and our obligation as a society to protect them from the evils of the world. In fact, most of the speakers from the other side who come from the legal profession know full well how the judicial system works, and in fact creating questionable language only opens up the opportunity for court and charter arguments, and does nothing for the victims of crime.

Canadians know what the word “stranger” means. In fact, at committee the amendment was made to define stranger as “not a parent, guardian or person having lawful care or charge of the child”. I believe that is fairly clear.

Let us get beyond the stick-handling of legal jargon and pass the bill. It is about our obligation as parliamentarians and law-makers that we do our utmost to ensure we give as much confidence to society in our criminal laws as is humanly possible.

I will be cutting short my speech because I do believe I have made my point. All I would say to the members of this House is that I encourage every member of Parliament to vote in favour of Bill C-299.

The House resumed from September 24 consideration of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), as reported (with amendments) from the committee, and of the motions in Group No. 1.

Motions in amendment

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, today I rise to speak to Bill C-299, introduced by the hon. member for Kootenay—Columbia, which is at report stage and third reading. This bill, entitled An Act to amend the Criminal Code (kidnapping of young person), adds a new paragraph to subsection 279(1.1) of the Criminal Code. It provides for a minimum sentence of five years for anyone who kidnaps a person under 16 years of age. The legal definition of kidnapping is found in subsection 279(1), which states:

Every person commits an offence who kidnaps a person with intent (a) to cause the person to be confined or imprisoned against the person’s will; (b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (c) to hold the person for ransom or to service against the person’s will.

I will simply quote some witnesses to illustrate my remarks. A former Supreme Court Justice had this to say:

With a minimum sentence you're boxing in the judiciary, but you're also providing a motive for the kidnapper to perhaps act very viciously and do something to the child, so that he won't be identified. Then the minimum sentence becomes academic, because he doesn't think he's going to be caught.

I'm still a little concerned about a minimum sentence that's absolute. Cases are not all the same, as you know, and the minimum sentence may be inadequate in a number of circumstances of commercial kidnapping, but in other cases it may not be proper....

...experience shows that the severity of the crime seldom acts as a deterrent, because there's a philosophy that says the criminal doesn't believe he'll be caught.

It's interesting to look at the range of sentences for kidnapping in our judicial history where there's no minimum. The sentences, nonetheless, have been severe. By severe, I mean lengthy. The courts, to my knowledge, have always treated commercial kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years, so that the five years is not extreme. I think you'd have to look hard to find a case where a serious kidnapper was sentenced to less than that.

The criminal offence of kidnapping, as defined earlier carries a number of sentences that are set out in subsection 279(1.1) It should be noted that the maximum sentence of life imprisonment applies to all cases. Bill C-299 also provides for the same maximum sentence.

In our society, protecting minors is very important. It is always sad to hear about child kidnapping on the news. Sexual predation and assault are crimes that we categorically condemn. I would remind the House that the NDP supported harsher sentences for sexual assaults. However, with regard to this bill, I would like to express reservations about, on the one hand, the objective of creating a deterrent and, on the other, the bill's usefulness from a strictly legal standpoint.

It seems that my colleague introduced this bill to create a deterrent by establishing a new minimum sentence. If that is the objective, I would like to remind my colleagues that the sentence of life imprisonment already exists and that it has been applied in British Columbia.

If we look next at the legal analysis of this bill, the Criminal Code already provides a legal framework for kidnapping. Thus, people found guilty of this criminal offence can be sentenced to a maximum of life in prison. When judges have to rule on cases involving the kidnapping of a child, they have tools available to them that allow them to impose suitable sentences on offenders who represent a danger to society. It is important to note that, in a review of cases involving the kidnapping of a child, the average sentence imposed already exceeds the five years set out in the Criminal Code and is often as long as 8 years. Including a minimum sentence of five years in the Criminal Code would therefore only serve to limit the judge's discretion. Judges must be able to assess the extenuating and specific circumstances when making their decisions.

As a member of the Standing Committee on Justice and Human Rights, I had the opportunity to listen carefully to the various witnesses when Bill C-299 was being examined in committee. What we learned there was that a minimum sentence limits the work of a judge in determining the sentence and that the deterrent effect of the minimum sentence would not meet these objectives in that it would not prevent people from committing the crime of kidnapping.

The president of Child Find British Columbia said:

As some of the members have pointed out, I believe any terms that have been put out there have not been for less than five years. They've been for anything higher than five years...I don't know to be quite honest, because as I said, judges are already going beyond that, and by putting in five years it now brings down that eight-year sentence to a minimum of five years, so I don't know if that is the message.

For all these reasons, in the case of mandatory minimum punishments, as the lawyer for the Canadian Civil Liberties Association said:

...that evidence shows the contrary...The bottom line is that mandatory minimum sentences are not effective. They're a simple way of looking at a complex problem and, in my submission, ultimately a myopic way of looking at that problem...If the intent of this bill is to decrease the kidnapping of young people, to protect young people, the evidence shows that mandatory minimum sentences, I submit, will not accomplish that goal. In turn, they will bring the practical side effects that I can testify about: the increase in court time; the perverse incentives; the shift—

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to speak to Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), introduced by the member for Kootenay—Columbia.

We are all outraged and concerned when we hear that a child or young person has been kidnapped, or is the victim of any kind of crime. In the past, we have all supported harsher sentences for sexual assault.

I would like to point out that this bill amends the Criminal Code. As we all know, the Criminal Code contains sections dealing with all manner of crimes, sentences, penalties and procedures. This bill amends subsection 279(1) of the Criminal Code, which deals with kidnapping, including the transport, confinement, or imprisonment of a person without their consent.

The Criminal Code provides for different sentences and penalties depending on the type of kidnapping and the circumstances.

Paragraph 279(1.1)(a) provides for a minimum sentence of five years in the case of a first offence, or seven years in the case of a subsequent offence, if a restricted or prohibited firearm is used in the commission of the offence, or if a firearm is used and the offence is committed for the benefit of a criminal organization.

Paragraph 279(1.1)(a)(i) sets out a minimum sentence of four years in any other case where a firearm is used in the commission of the offence.

Finally, under paragraph 279.(1.1)(b), there is no mandatory minimum in any other case.

In all cases, the maximum sentence is life imprisonment, which is the most severe punishment in Canada. There is no harsher sentence. At present, judges can impose the harshest sentence on the perpetrators of such crimes, if warranted by the circumstances.

The bill would add, under subsection 279(1), a specific provision regarding kidnapping of a young person. It provides for a minimum punishment of five years for the kidnapping of a young person under 16 years of age.

The committee that studied this bill suggested adding to this provision that there would be no minimum penalty if the individual is the father, mother or legal guardian. We can obviously assume that this would include any person acting in that capacity. For example, we can assume that a judge could interpret that grandparents who committed this offence because they thought that the child's safety was at risk could be assessed in light of this amendment.

The idea behind this bill is to keep our children safe and to ensure that the guilty are punished. I listened to the debates and some concerns about the provisions of this bill. We must ensure that Bill C-299 will make it possible to achieve the desired objective.

In the cases we are talking about today, the Criminal Code already provides for a maximum penalty of life imprisonment. As a result, in kidnapping cases, the courts have the latitude to imprison someone for life if they deem it appropriate. This is rarely done, but the possibility is there. It is the same thing in cases of kidnapping aggravated by sexual assault or murder: judges have the latitude they need to imprison people for life and to declare them dangerous offenders. They have all the latitude they need to ensure that criminals receive the punishment they deserve, which may be life imprisonment.

I would like to point out that in reality, there are few cases of straight kidnapping and that other offences are usually added to the charges. The other elements are always aggravating factors that judges take into account to make a ruling and decide on the punishment.

Jurisprudence varies regarding punishments, but in general, the penalties imposed in kidnapping cases are rarely shorter than eight years. As I said earlier, in some cases, the maximum penalty is possible.

Obviously, not having a minimum sentence for kidnapping of minors does not mean the justice system is lenient. Currently, sentences are harsher than the minimum sentence set out in this bill.

Furthermore, section 718.2 of the Criminal Code already states that when a minor—a person under the age of 18—is the victim of a crime, that is to be considered an aggravating circumstance. The Criminal Code already recognizes that crimes against minors are different. In light of these provisions, I truly think that the Criminal Code offers enough latitude to punish kidnappers of children harshly.

A review of average sentences imposed in such cases shows that they are typically longer than eight years, certainly longer than the five years in this bill. In general, whether the victim is a child or an adult, a sentence of 12 to 14 years or more is not unusual, particularly if the crime was premeditated or if there was a ransom demand or some other aggravating factor.

In none of the very serious and appalling cases that spring to mind when we are talking about kidnapping of children would the five-year minimum sentence contemplated in this bill ever be applied because sentences are typically much longer anyway.

When my colleague from Kootenay—Columbia says that “Child kidnappers are characteristically habitual offenders and carry out their assaults in a highly stereotypical modus operandi,” he is talking about criminals for whom a five-year minimum sentence would not change anything because they would typically be sentenced to much more than five years in jail. For example, premeditation is an aggravating factor that gives the judge the latitude to impose a harsher sentence.

As I said before, this bill would change nothing when it comes to sickening kidnappings that involve rape or murder, because these crimes are punished by much more than five years in jail. Those found guilty can be sentenced to life. The five-year minimum sentences would only come into play in cases with attenuating circumstances.

A five-year minimum sentence will do nothing more than curb judicial discretion in complex cases with many factors to consider, such as cases where the guilty party has diminished mental or intellectual abilities.

Another factor that must be taken into account in this debate is, once again, whether Bill C-299 will really achieve the desired goal.

According to the member, another goal of the bill is to deter people from committing this crime and send them a message. This presents a problem. As for the deterrent effect of a five-year sentence, I am not convinced that this achieves the desired goal; in fact, it could have the opposite effect. When a minimum sentence is imposed for a given offence, the individual might believe that if they show mercy, if they do not hurt the child and let the child go, maybe the judge will not be too harsh. However, if that individual knows they are automatically going to have a mandatory minimum, there is a danger that that individual might decide to hurt the child. That person might think that there is no chance that anyone will show them mercy, even if that person had a change of heart and realized they made a mistake, if they hear the message that the parents are worried and if they release the child. Thus, there is a risk that this could have the opposite effect on criminals.

I would like to conclude on a final point that relates to the severity of the sentences that are usually imposed, which I mentioned earlier. I would like to quote some evidence from committee to explain my position.

In his testimony, Justice Major stated the following:

It's interesting to look at the range of sentences for kidnapping...where there's no minimum. The sentences, nonetheless, have been severe...The courts, to my knowledge, have always treated commercial kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years...I think you'd have to look hard to find a case where a serious kidnapper was sentenced to less than that.

Thus, I do not believe that this bill will really change anything. On the contrary, it could even have unwanted negative consequences, and this could be very bad for children.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, Bill C-299 suffers from many of the same flaws that, unfortunately, have been characteristic of the government's general approach to criminal justice. It legislates in response to a single incident rather than taking a more comprehensive outlook. It focuses on punishment after the fact rather than on the importance of the prevention of the crime to begin with. The bill relies on a mandatory minimum sentence rather than heeding the overwhelming evidence from jurisdictions around the world, including our own Department of Justice, that mandatory minimums are not only ineffective but also prejudicial.

At second reading my colleague from Mount Royal referred to numerous studies demonstrating the ineffectiveness of mandatory minimums in countries around the world, including the United States, New Zealand, South Africa and Canada. The research concludes that mandatory minimums do not prevent or reduce crime but result in more crime in and outside of prisons, that they prejudice already vulnerable offenders and in no way serve the objective of deterrence for which they are often advanced.

Accordingly, having regard to the evidence, we remain opposed to mandatory minimums on grounds of principle and policy, and we have sought to remove the mandatory minimum provisions from the bill at committee.

The committee heard from a former Supreme Court justice, the Hon. John Major, who said that even without a mandatory minimum in place, kidnappers in Canada have been dealt with severely by the courts on a consistent basis.

The committee also heard from Michael Spratt, a criminal lawyer from the Canadian Civil Liberties Association, who warned us—and my colleague knows this from personal experience as a lawyer and as minister of justice, with whom I had the pleasure of serving in Canada—that mandatory minimums do not remove discretion from the legal process. They simply transfer it from judges, who work in open court and publish decisions that are reviewable, to police officers and crown prosecutors whose decisions are neither reviewable, transparent nor public.

With respect to Bill C-299 then, if the prosecution were to deem a five-year penalty excessive in a particular case, it could decline to prosecute or could charge for a lesser offence or another offence such as abduction, and no recourse would be available to those who disagree. It would again undermine the very intention of the sponsor of the bill.

Clearly, the arguments against mandatory minimums are overriding. Regrettably, we are not surprised that our Conservative colleagues on the justice committee remain unconvinced, but we are surprised by the disturbing if not alarming justifications of mandatory minimums that some of them put forth.

The member for Brampton West, for example, argued that there was no distinction between incarceration and deterrence, saying that an individual in prison was necessarily specifically deterred from committing crimes. That suggests that a viable crime prevention strategy is to put as many people in jail for as long as possible. As the logic goes, if everyone were in prison then no one would be out committing crimes. Regrettably, this myopic approach is not only absurd but also ignores entirely the root causes of crime and the importance of rehabilitating offenders and the need for both prevention and deterrence.

Another alarming attempt to justify mandatory minimums came from the Conservative member for Scarborough Centre, who asked: “[H]ow do we protect society from judges who decide that the same offence should be applied to someone who lifts a chocolate bar and to someone who commits murder?“ Apart from the fact that guidelines and precedents exist to direct judges when determining appropriate punishment, and apart from the fact that no convicted murderer in Canada has ever received a chocolate bar calibre sentence, and apart from the fact that should such a sentence ever be handed down, the appeals process would undoubtedly correct the problem, the member's comments demonstrate a lack of understanding of the judicial process.

The committee heard a good deal of evidence that limiting judicial discretion is an ineffective way of fighting crime. It heard no evidence whatsoever that Canadian judges have been guilty of the kind of dereliction of duty the member describes. Indeed, Justice Major urged committee members to have confidence in our judges and to value judicial independence. At the very least, we would urge all members to respect our judiciary and to value the importance of having evidence before impugning the judiciary's common sense.

In that regard, the evidence is squarely against mandatory minimums. Yet those of us who affirm the facts know what we can anticipate from those who support this discredited approach. Indeed, we will be subject to accusations that we care more about criminals than about victims, comments that regrettably resurfaced in last week's debate on Bill C-37.

I trust that there will be no demagogic accusations in this debate. We all want the kidnapping of children to stop. The question is how to achieve that goal. Do we address, to the extent possible, the underlying causes of crime, programs for the prevention of crime, providing police with the tools they need to keep people safe and making every effort to rehabilitate the criminals in order to reduce the likelihood that they will re-offend? The answer is a resounding yes.

Imposing mandatory minimum sentences that we know do not work, that limit judicial discretion in unusual or unanticipated cases and that represent an approach that compounds rather than addresses the initial injustice are neither effective deterrents nor do they serve the purposes of justice.

Let us look at the irony here for a second. Simply put, by including an exemption in the bill, the government is implicitly acknowledging in a small way the need for the judicial discretion at sentencing. The motion before us seeks to improve the clarity of that exemption by giving judges more flexibility to deal with unusual cases.

The first amendment proposed would exempt from the mandatory five-year minimum anyone substantially similar to a parent, guardian or person having lawful care or charge of the child.

The second amendment would exclude from the exemption anyone deprived by a court of all parental rights.

Ideally, of course, the mandatory minimum provision would be stricken as well, but failing that, we offer these amendments as the next best thing. We hope the House will signal its desire for these changes and that the Senate will report back an improved version of the bill.

We trust that members on the government side will carefully study the critiques that have been made of mandatory minimums and will heed overwhelming evidence that they simply do not work at best and are prejudicial at worst.

While it is our sincere hope that this is the last bill with a mandatory minimum provision that will come before this House and that the serious shortcoming is not likely to be fixed at report stage, I do hope that the other shortcomings of the bill may, nonetheless, be ameliorated somewhat to our amendment which otherwise would support the intention of the proposer himself.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, thank you for allowing me to speak. I rise today in this House to discuss something that is very important to me and obviously to all Canadians, and that is the safety and protection of our children.

My colleague opposite, the member for Kootenay—Columbia, introduced a bill that would amend the Criminal Code with regard to the kidnapping of a young person. I understand why this member introduced such a bill, because I am a father of three. The stress that parents of kidnapped children experience is unimaginable. I think it is one of the most revolting crimes, and all Canadians are disgusted when they learn that a child has been kidnapped. A child's life is so fragile that it is important to do everything possible to protect and improve their safety. During times like these, we can see just how strong Canadian solidarity can be.

The questions we have to ask today are whether Bill C-299 will reduce the number of kidnappings in Canada. Will it improve public safety? Is this new bill relevant in the fight against crimes against a person? I am not convinced of that and I do not think that this bill will achieve the objective of reducing the number of kidnappings in Canada. That is why I will oppose this bill.

The purpose of Bill C-299 is to deter potential predators by imposing a minimum punishment of five years. It would include provisions for a mandatory minimum punishment of five years for offenders found guilty of kidnapping a young person under 16 years of age. Like all of the other kidnapping provisions in the Criminal Code, Bill C-299 would impose a maximum penalty of life imprisonment.

Yet, a maximum sentence of life in prison is already set out in the Criminal Code for this type of crime. The life sentence has also been imposed by the courts, including in British Columbia. The Conservatives and the hon. member for Kootenay—Columbia therefore feel that predators will be dissuaded by a minimum sentence of five years, rather than by the maximum sentence of life in prison that is already set out in the legislation. If a life sentence does not dissuade predators from kidnapping children, I do not believe that a minimum sentence of five years will be as effective or have any deterrent effect. In my opinion, the members opposite lack knowledge about criminology.

Once again, the Conservatives want to please their electoral base without any regard for the interests of Canadians or the reality of Canada's legal system. Minimum sentences are a judicial approach that even the most conservative and hardened American judges are starting to reject. They are concerned about the ineffectiveness of this approach and the burden it places on the prison system. During the debates on Bill C-10, their opinions in this regard appeared in the national papers. The Conservatives basically ignored these judges' experience.

With this bill, the Conservatives are once again trying to impose minimum sentences. They want to show the people of Canada that they are tough on crime, when the only effect this approach has is to place a heavier burden on the justice system. In addition, on several occasions, the Supreme Court has struck down the legislator's attempts to impose minimum sentences because such sentences went against the Canadian Charter of Rights and Freedoms. So, once again, the Conservatives are trying to impose such minimum sentences when they know full well that, in certain cases, these are unfortunately not the sentences that should be imposed. And I would just like to mention again that this will no doubt be challenged before the Supreme Court in the future.

The Conservatives are going to try to convince members of the House and Canadians that, since there is no minimum sentence, those who kidnap a child could be sentenced to six months in prison, for example. This is completely false. We must not fall into that trap. Canadians have the right to be well informed.

The NDP is tough on those who commit such crimes. We want to see maximum sentences imposed in these cases. However, we want to protect judicial discretion because we have faith in the existing judicial system.

If we look at sentences in kidnapping cases, we see that average sentences for this type of crime are around eight years in jail, which is quite a bit more than the five-year minimum that this bill would impose.

By introducing a mandatory minimum sentence, all the government is doing is tying judges' hands. This bill would not enable judges to take unique attenuating circumstances into account in certain cases.

It is difficult for lawmakers to write legislation that takes all of the possibilities into account, which is why judicial discretion is important. Judges must respect not only the letter of the law, but also the spirit. They must be able to interpret the law and hand down appropriate sentences that take into account the unique circumstances of each case.

We must have confidence in our legal system and in our judges, who typically make informed decisions that take into account both the law and legal precedent.

As I said, we have confidence in the justice system. That is why we will oppose this bill. We want to respect judicial discretion by opposing this five-year mandatory minimum sentence.

Current provisions allow judges to sentence those guilty of kidnapping to a maximum of life in prison. Judges have the freedom they need to hand down harsh sentences and ensure that dangerous offenders do as much time as they deserve. As I said, judges have typically sentenced offenders to more than eight years in prison. That is more than the five years this bill sets out.

This bill is problematic on two counts: the mandatory minimum sentence it recommends is shorter than what is typical in case law, and judicial discretion is being taken away for this type of crime.

Justice Major of the Supreme Court shares our opinion on this issue. He is concerned that the minimum sentence would be the rule. He said that no two cases are alike and that the minimum sentence would be inadequate in certain kidnapping cases. He wondered why this bill imposes a minimum sentence that is lighter than typical kidnapping sentences. He also pointed out that minimum sentences do not deter would-be criminals but would have serious consequences for other aspects of our legal system.

Bill C-299 is another clear example of the Conservatives' lack of understanding when it comes to justice issues. At first glance, this is an interesting approach, but upon closer scrutiny, it soon becomes clear that this bill does not really accomplish much of anything. The courts are much more severe on these issues than what this bill proposes. Most sentences are much longer than the minimum sentence set out in this bill.

As previously mentioned, a life sentence is often imposed. Do the Conservatives not realize that they are undermining the discretion of judges and the judicial system with this bill?

In budget 2012, the Conservatives slashed front-line forces by also imposing minimum sentences in several sections of the Criminal Code. Do they really believe that minimum jail sentences will make Canadians and Canadian families safer?

Instead of adopting punitive measures that have no deterrent effect, why does the government not invest in tools and resources for front-line police forces when a kidnapping takes place? Instead of focusing on punishment, I believe the Conservative should pay a lot more attention to prevention.

We are worried that the Conservatives are once again using a crime bill to try to score political points with victims and anyone who is sickened by this kind of offence. We are under the impression that this bill was introduced in order to please the extreme right wing of the Conservative base. Once again, the Conservatives are introducing a bill that presents a restrictive view of the problem. Minimum sentences, I repeat, are not the answer to kidnapping problems, and that is why we do not support this bill.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am pleased to rise here today as the justice critic for the official opposition to speak to Bill C-299 and the amendments proposed by the hon. member for Mount Royal. These amendments are a last-minute attempt to make this bill a little better for Canada's criminal justice system.

When I was elected, I told the people of Gatineau that, especially when it comes to justice matters, as a member of the Barreau du Québec, I have always believed that justice should be a non-partisan issue. I have always believed that the Minister of Justice, the justice critics and all members of the Standing Committee on Justice and Human Rights must be able to rise above the fray. We are the guardians of our beautiful democracy and the separation of the legislative, executive and judicial powers.

The amendments proposed by my colleague from Mount Royal are a clear example of the fact that we are trying everything we can to correct the things in this bill that simply do not make sense. If we were to take the time needed to do a thorough, non-partisan examination, we could come up with a much better bill than Bill C-299, which is consistent with other government bills, whether they are introduced by cabinet members or backbenchers.

Here is another example of basing amendments on something as fundamental as the Criminal Code, which is the foundation of our entire criminal justice system. Everything has been codified, whether we are talking about offences against the person or against property, or any other kind of offence that can be committed. The Conservative government is using a piecemeal approach. It is chipping away at the Criminal Code bit by bit, claiming to do so for the benefit of victims. The Conservatives took one case that made headlines, that of young Kienan Hebert, and used that as the basis of this bill.

I can understand a member whose constituents react to a particular event. We are responsible people and we are supposed to be leaders in our communities. It seems to me that the answer to this kind of thing is not to pass a law to prevent it from happening again. First, because that would be an impossible promise to keep. Second, because that would prevent us from doing the smarter thing, which is check to see if the Criminal Code already contains provisions to ensure that the individual charged will be prosecuted to the full extent of the law and that the sentence will be between eight and 15 years in such cases, based on the jurisprudence.

In committee, the Conservative Party went to extraordinary lengths to give everyone the impression that Canada's criminal justice system does not cover such cases, and thank goodness the Conservatives are around to fix the world's problems. But the truth is that the Conservatives are introducing yet another minimum sentence. That is the main problem with Bill C-299. The Conservative government keeps saying that the NDP is soft on crime. But that has nothing to do with it. Even the courts are overturning—basically throwing out—bills this government introduced because they are just not good, because significant parts of Canadian law have been overlooked and the government has not done its work.

That is what the courts have been doing with the Conservatives' 2008 omnibus legislation, and our predictions will probably come true. I do not like to say, “I told you so”. That is not my goal in life. I would prefer that we do our job properly and that we concentrate on public protection and obeying the laws of this country.

Former Supreme Court Justice John Major appeared before the committee to talk about Bill C-299. For my colleagues who may not know him very well, I would like to point out that Justice Major is not considered to be left of centre. He was not viewed as a liberal judge, but rather as a fairly conservative judge. Justice Major had this to say about minimum sentences:

With a minimum sentence you're boxing in the judiciary, but you're also providing a motive for the kidnapper to perhaps act very viciously and do something to the child, so that he won't be identified. Then the minimum sentence becomes academic, because he doesn't think he's going to be caught.

I'm still a little concerned about a minimum sentence that's absolute. Cases are not all the same, as you know, and the minimum sentence may be inadequate in a number of circumstances of commercial kidnapping, but in other cases it may not be proper.

...experience shows that the severity of the crime seldom acts as a deterrent, because there's a philosophy that says the criminal doesn't believe he'll be caught.

It's interesting to look at the range of sentences for kidnapping in our judicial history where there's no minimum. The sentences, nonetheless, have been severe. By severe, I mean lengthy. The courts, to my knowledge, have always treated...kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years, so that the five years is not extreme. I think you'd have to look hard to find a case where a serious kidnapper was sentenced to less than that.

This is Justice Major's take on the issue and, the whole time the committee was working on this, I was wondering what message the legislator was trying to send.

When a person is brought before the courts on criminal charges, the judge takes into account sentences that have been handed down in other similar cases. A review is conducted, which is presented to the judge when the accused enters a plea for sentencing, and the usual sentence is between 10 and 15 years. However, all of a sudden, the brilliant legislator introduced a bill that sets the minimum sentence at five years. I do not have any difficulty believing that defence lawyers will tell the judge not to consider imposing sentences of 10 to 15 years any more. We are concerned about this. It is symptomatic of the problem: the government simply did not do its homework to see what would happen in similar cases so that it could say that the sentence for kidnapping is 10 to 15 years or even life in prison. The maximum is actually set out for this type of offence.

What did we work on in committee? We tried to find a minimum sentence. It does not make any sense. This was a typical provision of the Criminal Code that did not need to be amended in any way.

However, when we analyzed it in committee, we wondered who section 279.1 was talking about. It is unclear, and this shows that, if the government side had any intelligence at all, it would have tried to fix the contradictions between section 279 and the entire section of the Criminal Code that deals with kidnapping, human trafficking, hostage taking and abduction.

There is no way to amend Bill C-299 to make it into something that makes sense in the desired context, which the hon. member himself came to explain to the committee. This is absolutely not the result we would achieve if we were to pass Bill C-299.

This is therefore just another failure on the part of the government when it comes to justice.

The Conservative government is completely obsessed with its hatred of the judiciary, which it believes is just getting in the way. However, this is a very dangerous way of thinking in a democracy.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am pleased to rise in the matter of Bill C-299, a bill that would provide a mandatory minimum sentence for the kidnapping of a minor.

Like every member of this place, I am truly saddened to hear news of kidnappings and families torn apart by such abhorrent acts. Indeed, my own family has been affected in this regard, so I know the pain that families experience.

The kidnapping of a child, simply put, is the most reprehensible of crimes.

Accordingly, legislators must enact strong laws that would provide courts the tools to impose severe punishment on anyone found guilty of such an offence. As parliamentarians, we must do everything we can to prevent the kidnapping of children. I know this is a goal shared by all members of the House.

The difficulty is that sometimes a piece of legislation that purports to be tough and effective and principled on crime is in effect ineffectual or counterproductive and ends up being less than principled.

Regrettably, Bill C-299 as it is before us, however well-intentioned, is a flawed piece of legislation.

I will organize my remarks around two themes. First, I will discuss my amendments as they address what I perceive as the biggest defect of this bill; namely, that it simply would not do what the member himself intended from this legislation. Second, I will then move to discuss more generic critiques of this form of legislation.

When the member for Kootenay—Columbia discussed his bill in the House nearly a year ago, he emphasized that it was intended to apply only in cases of kidnapping by strangers. However, for reasons that remain unclear, that intent was not reflected in the bill he put forward at the time. The bill, as introduced, contained a mandatory minimum for kidnapping of minors without any sort of exemption or exclusionary clause. Indeed, the sponsor of the bill himself acknowledged that shortcoming at second reading.

However, it was not until the final committee meeting of our Standing Committee on Justice on this subject that the problem was addressed with an amendment from the government. Regrettably, this last-minute amendment left committee members with no opportunity to address the amendment and to give the new language the thorough examination it required and warranted at the committee stage.

As it stands now, Bill C-299 would exempt from the mandatory minimum any offender who is “a parent, guardian or person having the lawful care or charge” of the victim. This is certainly an improvement over the original bill, as we all at committee seemed to agree that the imposition of such a mandatory minimum during a custody dispute, for example, would be excessive.

However, the present wording of “a parent, guardian or person having the lawful care or charge” nonetheless gives rise to a number of questions.

For example, who precisely does the term “parent” include? Would it include biological parents who no longer have custody of the child? What about sperm donors who, in Ontario, for example, can be listed as a third parent on a birth certificate? More importantly, what does this new wording exclude?

There are, undoubtedly, many people in a child's life who are not strangers but who a court might not consider to be in a position of lawful care or charge. There are grandparents, for example, or other relatives who have played extremely important roles in the child's life. Should an aunt or uncle who removes the child from what they consider to be an abusive household be subject to a five-year mandatory sentence? What about a parent's common law spouse who has been living with the child for many years?

Regrettably, by introducing its amendment at the last minute in committee, the government deprived the committee of the chance to examine these pertinent issues in detail. At clause by clause consideration of the bill, the technical witness from the Department of Justice, while very helpful and responsive, was only able to speak to the criminal law aspects of the bill.

However, with respect to the specific change, members of the committee sought advice on the family law aspects of the bill to explain how the terms “parent” or “guardian” and “lawful care” are likely to be interpreted by the courts. Yet, the Conservatives on the committee refused to call such a witness or put our proceedings on hold to contemplate the seriousness of this proposed change, something that the committee should have been entitled to do in the interest of the legislation itself and its ultimate purpose.

Indeed, the problem becomes clearer by looking at the rest of the Criminal Code. For example, section 215, which outlines the duty of persons to provide the necessities of life, speaks of this obligation applying to “a parent, foster parent, guardian or head of a family”.

This raises important concerns. Should Bill C-299 mention foster parents in the exception? What does the section 215 phrase “head of a family” include that the phrase “person having the lawful care or charge” does not? For example, section 43, relating to the punishment of children, speaks of a “parent or person standing in the place of a parent”. This phrase also contemplates that it may not only be a parent, either in the biological or custodial sense, who is afforded certain legal protection, but it may include those we would otherwise equate with the generic term “parent”.

As one can appreciate, by short-circuiting debate and thereby precluding analysis, as we did at committee, we run the risk of enacting legislation that has unintended consequences. I understand that certain members may well wonder if it is not perhaps equally problematic that my prospective amendments would not get a thorough study here at report stage. I acknowledge that necessary defect in the process and I would gladly support reverting to a committee of the whole if the government would so wish. Instead, I will hope that these amendments would be adopted and the Senate would be afforded due consideration of this matter.

Turning to the amendments themselves, the first amendment is relatively simple.

Simply put, the exemption to the mandatory minimum in the proposed legislation currently applies to a parent, guardian or person having the lawful care or charge of the child. My motion would amend this to include anyone in a “substantially similar” position.

This effectively would preserve the Conservatives' stated intent of imposing a mandatory minimum sentence on strangers who kidnap children, since the position of a stranger vis-à-vis the child could never be considered substantially similar to that of a lawful caregiver. At the same time, this amendment sufficiently broadens the exemption such that the mandatory minimum would not apply unintentionally to friends, teachers, family members and the like. Consequently, for example, an aunt who has her niece over for dinner without obtaining parental consent would not potentially be subjected to a five-year prison term. Similarly this would protect, for example, a step-parent who has raised and lived with a child for years but is neither his or her biological parent nor someone with custody, formally speaking.

In a word, this amendment seeks to address the problem that some people who should be exempted may not benefit from the exemption. Indeed, the step-parent example is a case in study as this person is surely not a stranger to the child.

The second amendment I am offering is potentially even easier to understand and it would also strengthen the government's own legislation. My whole purpose in these amendments, as it is often in committee, is to help to improve the legislation as so proposed by the mover. Even if I do not agree with the principle of the legislation that is going to be enacted, let us at least enact legislation that would be more principled and effective in this regard.

Members may recall that the exemption of the mandatory minimum sentence applies to “parents” without defining the term. Yet in certain cases, a biological parent could be a stranger to the child or equally someone we would not want to see benefit from the exclusion. I doubt, for instance, that the Parliamentary Secretary to the Minister of Justice, who put the original amendment forward at committee, would want someone who is the child's biological parent but who was stripped of custody for abuse, neglect and the like to be the beneficiary of such an exemption simply because the word “parent” as used in the bill did not clearly identify whether it was parents by filiation, by guardianship or both.

For this reason, I have suggested that a person deprived by a court order of all parental rights, that is custody and visitation, would now be excluded from the exemption.

I hope that the member for Kootenay—Columbia and others in his party will support these motions since the purpose of these motions is to bring the bill more in line with the sponsor's own stated objective. It is important to bear in mind that by exempting people known to the child from the mandatory five-year minimum sentence, we are not precluding them from receiving sentences of five years or more should a judge deem such a sentence appropriate.

Such is the purpose of judicial discretion. A judge may consider the specific facts of a case and, with the assistance of sentencing guidelines, impose an appropriate penalty. There is no evidence that Canadian judges have been imposing penalties for kidnapping that are unduly light.

The undue haste with which the amendment was passed at the justice committee has created this dual problem, which I have outlined. That is that some people will not benefit from the exemption who should, and that others whom I believe the government would want to receive a mandatory minimum sentence would not.

I will now turn my attention to the second theme, the broader concerns I have with this bill as a whole.

Mr. Speaker, I notice you are indicating that I should wind up but I thought I had 20 minutes for this debate.

Speaker's Ruling

[The Speaker, Conservative, Andrew Scheer]

There are two motions in amendment standing on the notice paper for the report stage of Bill C-299.

Motion Nos. 1 and 2 will be grouped for debate and voting patterns for the motions are available at the table.

I shall now propose Motions Nos. 1 and 2 to the House.

The House proceeded to the consideration of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), as reported (with amendment) from the committee.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 12th report of the Standing Committee on Justice and Human Rights in relation to Bill C-299, An Act to amend the Criminal Code (kidnapping of young person). The committee has studied the bill and decided to report the bill back to the House with amendments.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

In our view, the bill rightly seeks to ensure that cases involving kidnapping of children by strangers are treated with the severity they deserve. This goal is laudable and merits support. We know that although stranger child abduction happens fairly rarely—thank goodness—the consequences are dire, as abducted children are often sexually assaulted or murdered.

Offenders must be punished severely for such crimes, in our view. However, there is a concern that the way it's presently worded the proposed mandatory minimum penalty could apply to a parent or someone in loco parentis. With respect to that person, there might be an issue of preventing that child from seeing the other parent in the context of a custody or access dispute. We know that parents involved in such disputes have been charged with kidnapping of their own child.

Of course, parental child abduction is a serious issue, as well, for all involved, but we don't believe this bill's intention is to impose severe penalties in these types of situations. The Criminal Code currently criminalizes kidnapping of children through a number of different offences: subsections 279(1), kidnapping, and 279(2), forcible confinement; and sections 280 to 283, which contain four child-specific abduction offences.

Maximum penalties for these offences range from five years to life imprisonment, but only the kidnapping offence, in subsection 279(1), imposes mandatory minimum penalties in certain circumstances, for example, where a firearm is used or where organized crime is involved. Although sections 282 and 283 deal exclusively with parental child abduction, sections 279 and 280 can apply to cases involving both stranger and parental child abductions.

Therefore, Bill C-299's proposed mandatory minimum penalty could, as presently written, apply to parents. To prevent this unintended result, the proposed friendly amendment—which Mr. Wilks has also stated he would accept—would exempt parents and persons standing in place of parents from the application of the proposed mandatory minimum penalty.

Whether or not this amendment is supported, I certainly hope the bill will receive the support it deserves and that we all move together to seek sanctions on those who would seek to harm our children.