Bill C-299 (Historical)
An Act to amend the Criminal Code (kidnapping of young person)
This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.
David Wilks Conservative
Introduced as a private member’s bill.
This bill has received Royal Assent and is now law.
This is from the published bill. The Library of Parliament often publishes better independent summaries.
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.
- Oct. 17, 2012 Passed That the Bill be now read a third time and do pass.
- Oct. 17, 2012 Passed That Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), as amended, be concurred in at report stage.
- Oct. 17, 2012 Failed That Bill C-299, in Clause 1, be amended by replacing line 14 on page 1 with the following: “paragraph, other than a parent who has been deprived of all parental rights in respect of the person referred to in that paragraph pursuant to a court order, to a minimum punishment of”
- Oct. 17, 2012 Failed That Bill C-299, in Clause 1, be amended by replacing lines 11 to 15 on page 1 with the following: “who commits the offence is (i) a parent, guardian or person having the lawful care or charge of the person referred to in paragraph (1)( a), (b) or (c), or (ii) a person who, in the opinion of the court, occupies a position in relation to the person referred to in paragraph (1)( a), (b) or (c) that is substantially similar to the position occupied by a person referred to in subparagraph (i), to a minimum punishment of imprisonment for a term of five years; and”
- Feb. 29, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.
Private Members' Business
October 5th, 2012 / 1:25 p.m.
David Wilks 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.
Private Members' Business
October 5th, 2012 / 1:35 p.m.
Raymond Côté 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.
Motions in amendment
Private Members' Business
September 24th, 2012 / 11:05 a.m.
Irwin Cotler 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.
Motions in amendment
Private Members' Business
September 24th, 2012 / 11:15 a.m.
Françoise Boivin 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.
Motions in amendment
Private Members' Business
September 24th, 2012 / 11:25 a.m.
Sylvain Chicoine 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.
Motions in amendment
Private Members' Business
September 24th, 2012 / 11:35 a.m.
Mauril Bélanger 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.
Motions in amendment
Private Members' Business
September 24th, 2012 / 11:45 a.m.
Christine Moore 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.
Motions in amendment
Private Members' Business
September 24th, 2012 / 11:55 a.m.
Pierre Jacob 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—
Private Members' Business
February 27th, 2012 / 11:05 a.m.
Joy Smith Kildonan—St. Paul, MB
Mr. Speaker, I am pleased to rise today to speak to Bill C-299. This bill was tabled by my colleague, the member for Kootenay—Columbia. I want to commend him for bringing forward such an important bill to strengthen Canada's legislation on kidnapping. As an RCMP officer for over 20 years, the member has been on the front lines protecting and serving many communities throughout B.C. My son is an RCMP officer. I thank the member for his service to our country.
The member has tabled a bill that I strongly support. Bill C-299 would amend the Criminal Code under subsection 279(1.1) to include a mandatory minimum sentence of five years imprisonment if the kidnapped victim is under 16 years of age. This would be an important amendment as it would recognize the grave implications of kidnapping a minor. I want to recognize that this legislation would focus on stranger abductions, which are abductions by someone other than a parent or legal guardian.
Parents and families are put through devastating emotional trauma when their children are ripped away from them. They face significant anxiety not knowing the condition of their children or if they will ever be reunited. There is often deep guilt around whether they could have done anything different to prevent the kidnapping. There is also a general fear and anxiety placed on communities where the abduction has taken place. In Canada, numerous stranger abductions, abductions by someone other than a parent or legal guardian, occur every year. The Missing Children Society of Canada documented 56 stranger abductions in 2008. In 2009, based on CPIC data, this number is up significantly from 31 in 2004 and 30 in 2005.
The tragic result is that each year approximately 100 parents in Canada lose their children to an often violent and abusive predator. As we heard from the member for Kootenay—Columbia, not all parents get their children back. There is much debate around the use of mandatory minimum sentences. However, I believe that child abduction is a serious matter that requires serious penalties. It is the role of Parliament to ensure that the Criminal Code contains measures and sanctions that denounce egregious crimes such as kidnapping and the abduction of a minor.
In 2009, I brought forward legislation that proposed similar five year mandatory minimum sentences for child trafficking. This bill is now law and is being used across Canada. I believe that the mandatory minimum sentences in this bill are appropriate for this crime and reflect similar offences in the Criminal Code.
The Supreme Court of Canada has affirmed the test for when a mandatory minimum sentence of imprisonment will constitute cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms. In the unanimous reasons for judgment in Regina v. Ferguson, Chief Justice Beverley McLachlin stated:
The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate... As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive.
I would argue that a five year minimum sentence for the crime of abducting a child from his or her parents would not be grossly disproportionate. Bill C-299 proposes a sentence that would reflect our society's denouncement of this horrid crime. I call on all members of the House to support this very important measure. It is well known that every day we see on TV and hear on the radio of children who disappear or are abducted. It is a very traumatic experience. In Canada, it behooves us to ensure that our most treasured and vulnerable children are protected and respected.
Private Members' Business
February 27th, 2012 / 11:05 a.m.
Philip Toone Gaspésie—Îles-de-la-Madeleine, QC
Mr. Speaker, I am pleased to have this opportunity to speak to Bill C-299, which would prescribe a minimum punishment of five years when a kidnap victim is under 16 years of age.
I am appealing to my Conservative colleagues' democratic values and asking them to take a close look at this bill, which has a number of faults that should be corrected. During the debate at second reading of this bill, members said that many children are kidnapped in Canada. The member who just spoke said that this is still a problem in Canada and that it happens often.
In Canada, children are rarely kidnapped by strangers. The RCMP, the Canadian Centre for Child Protection and other experts say that it is very rare. The last time a child was kidnapped by a stranger was 20 years ago. I have to wonder why we need a bill like this, which would impose a minimum sentence and prevent judges from exercising their discretion. This sentence would be imposed regardless of the circumstances of the kidnapping of a child.
Of course, nobody thinks that the kidnapping of a child is a good thing. That would be ridiculous. Parliament must send a clear message to Canadians and to the world that Canada will not tolerate the kidnapping of a child. The Criminal Code already states that the penalty can be as high as life in prison. Existing penalties are harsh enough; making them harsher would be pointless. It is up to judges to determine appropriate penalties in light of the circumstances. The government is using its legislative power to impose a five-year minimum penalty, thereby undermining judges' expertise and usurping their judicial authority. I do not think that this is a good way to legislate in Canada.
We know that strangers rarely kidnap children. At the beginning of this debate, the member for Kootenay—Columbia, who introduced this bill, said that relatives were not considered “strangers”. Several sections, including section 280 of the Criminal Code, already set out penalties for the kidnapping of a child by a relative, specifically a mother or father.
During the debate, we heard that the bill does not cover close relations; it covers only strangers. However, I would like to quote from a study published by the RCMP in 2003, which I have before me in English.
The Abduction of Children by Strangers in Canada: Nature and Scope , December 1, 2003, is a report that was often cited in the last hour of debate back in November. Certain elements of the study were not raised. I would like to raise them now.
If I could speak to the definition of stranger, I will quote a paragraph:
To elaborate further, not only is the term “abduction” difficult to define, but also the term “stranger”.
Boudreaux et al., 1999, define a stranger as:
Someone who the victim has never come into contact with before the offense; anyone who is not part of the immediate family; and everything in between. Commonly referred to as a “non-family member” this person is someone who is not part of the family, such as a babysitter, family friend, acquaintance, boyfriend, and so on.
I think that the next part of the quote is particularly revealing:
The Royal Canadian Mounted Police's Canadian Police Information Centre (CPIC) operating data entry guidelines define a “stranger” as someone other than the parent or guardian of the victim. This includes siblings, aunts, uncles, grandparents, cousins, as well as the non-family members, neighbours and close friends.
If I can continue the debate on the term “stranger”, the bill does not give a proper definition of the term. The member who introduced the bill gave us his definition of stranger, that is, someone whom the child does not know.
However, the people who will be mandated to enforce this piece of legislation are the RCMP or the police. According to the RCMP's definition, a stranger is not someone whom the child does not know, but rather someone whom the child knows very well. An uncle, a grandparent, a cousin—these are close relations. We have all experienced difficult situations within our families. In a family situation that might be very complicated, I have a serious problem with the fact that someone would remove a child, thinking they are protecting that child.
In such situations, judges are in the best position to determine the punishment, which should definitely apply. Only the parent or legal guardian should be allowed to take the child. However, we need to be aware that there are very difficult and emotional situations and that a minimum sentence completely ignores the reasons for removing a child. It is very important to keep in mind that the RCMP's definition is completely different than the definition the bill before us seems to propose.
The bill clearly needs to be amended. It should define the term “stranger”. One debate in the House is not enough. This needs to be clearly defined.
I would like to continue by addressing the issue raised by the Centre for Child Protection or missingkids.ca, which was mentioned in previous debates on this bill. The organization says that it is very rare for a child to be kidnapped by a stranger, which is defined here as a person whom the child does not know very well or at all. I have a problem with the fact that members are rising in the House and saying that this is a frequent occurrence. I would like to know how they are defining kidnapping by a stranger. In fact, from what I understand from organizations working in this field, such occurrences are rare.
A bill like this that will introduce such harsh sentences is completely intolerable. This bill should not be passed. Once again, this bill clearly needs to be amended. I would like the term “stranger” to be defined in the way that experts in the field define it, rather than in the way the legislator defines it, since the legislator, perhaps by omission, has left things vague and has left judges with the discretion to define the term. If the bill seeks to remove judges' discretion and then creates a situation in which it is impossible to define the term “stranger”, the legislator has truly missed the mark.
Most missing children are not necessarily kidnapped. Many of them, particularly teenagers, have run away from home. The bill, which pertains to children up to the age of 16, ignores the fact that 16-year-old children are not usually kidnapped. When a child is kidnapped by a stranger—someone the child does not know—there are serious consequences. Once again, no one will tolerate a child being kidnapped by anyone. We want kidnappers to be punished but we want the punishment to fit the crime.
One member rose as part of this debate and gave the history of the Magna Carta. I do not want to have to refer to the Magna Carta to explain the reason why I do not support the bill as it stands today; however, it is important to understand that mandatory minimum sentencing completely disregards the purpose of—
Private Members' Business
February 27th, 2012 / 11:15 a.m.
Irwin Cotler Mount Royal, QC
Madam Speaker, I am pleased to participate in the debate on Bill C-299. Let me state at the outset, I realize that as soon as one opposes a mandatory minimum sentence one is regarded as being soft on crime or worse. That has occurred here in the House. However, it is my submission that the issue really is how can one be smart and effective on crime.
In that regard, mandatory minimums not only impugn the integrity of the legal process but they also are a failed criminal justice policy. Enhancing our Criminal Code with such mandatory minimums does nothing to reduce crime or improve public safety.
Moreover, the fact that this legislation is dealing with child kidnapping, a crime all of us abhor, is not a reason to suggest that a mandatory minimum that underlines it should be accepted without any form of reservation or critique. The abhorrence of the crime does not thereby validate the sentence.
Simply put, mandatory minimums do not advance the goal they purport to reach, that of crime prevention and of deterrence. This is not a personal conclusion. It is one that is anchored in studies the world over, from the United States, South Africa, from whence I have just come, which discussed and critiqued mandatory minimum sentences, New Zealand, and the like. That conclusion is found also in volumes of social science research and evidence.
Perhaps the strongest evidence against mandatory minimums comes from the United States where legal experts have increasingly critiqued their use. Indeed, just last week a coalition of American law enforcement officials, judges and prosecutors called upon the Senate of Canada to reconsider the mandatory minimum sentences in Bill C-10, concluding that such penalties “do not achieve their stated objectives”.
Indeed, the signatories of the letter expressed great confusion over the current government's emphasis on mandatory minimums, as these mandatory minimum sentences have been repealed in various jurisdictions of the United States for precisely the reason of being a failed criminal justice policy. Moreover, the letter itself bluntly states:
--we cannot understand why Canada's federal government and some provincial governments would embark down this road.
Lest it be thought that there is no Canadian evidence on the matter, our own justice department published a study in December 1990 called “A Framework for Sentencing, Corrections and Conditional Release, Directions for Reform”, which on page 9 states:
The evidence shows that long periods served in prison increase the chance that the offender will offend again. In the end, public security is diminished rather than increased if we “throw away the key”.
The truth is that mandatory minimum sentences also have a disproportionate impact on those minority groups that already suffer from poverty and deprivation and disadvantage. For example, we have a situation right now where 34% of aboriginal women are in prison, which is a shocking datum. Mandatory minimums would not alleviate let alone address this problem. Rather, they would exacerbate it.
As well, mandatory minimums prejudice the integrity of the legal and judicial process. They unduly limit judicial and prosecutorial discretion. We know that in some cases prosecutors will leverage or avoid mandatory minimum charges so that offenders will plead to a lesser offence, even if they are innocent of that offence.
Similarly, if more offenders plead not guilty given the particular mandatory minimums, we are likely to further strain our scarce judicial resources, something from which nobody benefits. The Canadian Bar Association has gone so far as to warn that if the courts become clogged with persons contesting the minimum, it may be that the right trial in a reasonable period of time would be infringed and criminals would thereby be set free.
Moreover, mandatory minimums may invite a spectrum of constitutional challenges that further backlog the courts and take us away from principles of justice and fairness. If they are gross and disproportionate, they may violate the charter.
The Ontario Court ruling in the Smickle case several weeks ago is proof on this point. The judge struck down a mandatory minimum in that case saying that its imposition would be, "fundamentally unfair, outrageous, abhorrent and intolerable".
For a government that touts itself as being so concerned with cost cutting, it is surprising that it would embark on a criminal justice plan that would have it defending multiple charter claims at great expense to Canadian taxpayers without enhancing the integrity of our system and without serving as a deterrent or being fair in its application.
Further, as the U.S. Sentencing Commission and the Canadian Sentencing Commission pointed out, inequitable and inconsistent sentencing policies, and this can and very often does result from mandatory minimums as all of the evidence shows us, may foster disrespect for and lack of confidence in the federal criminal justice system. This is another consideration that we should be addressing in the debate on the bill.
At the end of the day, as all of the evidence demonstrates, relying on mandatory minimums would likely result in a situation where we would find ourselves incarcerating more people for longer periods of time and thereby also aggravating the existing problem of prison overcrowding. This in itself may raise a question of constitutional concern with regard to the question of cruel and unusual punishment as it has in the United States. We may find a similar concern being raised here in Canada.
These laws have helped to fill prisons but without increasing public safety. With respect to the subject matter of this bill, someone intent on kidnapping a child is not going to be deterred by the fact that there is a mandatory minimum sentence on the books. Odds are the individual is not even aware of the penalty. Unless we think criminals are using Google to look up the potential consequence of an offence, there is no deterrent value here. The evidence has shown that not only is there no deterrent value, but mandatory minimums end up also being unfair, injurious, grossly disproportionate, and the like.
Lest anyone be confused, the Liberal Party has a strong historical advocacy policy with respect to the protection of children. I might add that the first bill I introduced as minister of justice was exactly that, an act to protect children and other vulnerable persons, to help children who are the most vulnerable in Canadian society.
This is not about whether we do or do not protect children. We all agree that we must protect children. We all agree that the kidnapping of children is an abhorrent crime. The issue is about how we can effectively prevent and combat such a heinous criminal offence.
We support concrete measures to make Canada's streets and communities safer, particularly when it comes to protecting our children, but we cannot support the imposition of mandatory minimum sentences which have been proven time and again to be ineffective, costly, unfair, injurious, prejudicial, disproportionate, and as all of the evidence has shown in all of the jurisdictions that I have cited, an utterly failed criminal justice policy.
Private Members' Business
February 27th, 2012 / 11:25 a.m.
Ryan Leef Yukon, YT
Madam Speaker, I am pleased to rise today to speak in support of Bill C-299, an act to amend the Criminal Code (kidnapping of young persons), introduced by my colleague, the member for Kootenay--Columbia. I was proud to second the bill when it first was submitted for consideration by the House. I would like to applaud my colleague for taking the time and initiative to help better protect our nation's children. Our government has done much to help Canadian families, and I see this bill as a natural extension of all the work we have done and continue to do to make our streets and communities stronger.
Of course, an integral part of any community regardless of its size is its children. As a proud father I speak from experience when I say that children are precious and wonderful gifts to anyone lucky enough to have them. Children are often great motivators. They give their parents a reason to get up in the morning and go out and try to make the world a better place. Children deserve nothing more than to be loved and nurtured by their parents, family and friends. Children deserve to have all of the benefits and protections that we can possibly afford them. Children are only young once, and childhood is a beautiful thing that should not be compromised by those who would do our children harm.
Unfortunately, there are those who would upset this natural status quo. Kidnapping is a reprehensible practice, and it is even more heinous when the victim is a child. I am certain that every member of the House believes this. Kidnapping is currently a punishable offence in the Criminal Code of Canada, and it is only right that this would already be the case. I believe the bill is important because it emphasizes how deplorable it is to remove a child from the love and protection of his or her family. Such an act is wrong by every definition of the word. The bill, by instituting a five year mandatory minimum sentence, ensures that someone who would commit such an act would be rightly punished for it.
Kidnapping is not the most common manner in which children can go missing. It is true that child abduction is relatively rare and that abduction by strangers is rarer still. However, this fact provides absolutely no comfort to the victimized children and their families who are also affected by this act. While I believe that the infrequency of child kidnapping is something we can be proud of, it does not mean we can pat ourselves on the back and call it a day. It does not mean we can consider our job done. In fact, I would say that it means we need to work even harder to fight child kidnapping. We should be doing everything within our power to bring the number of child kidnappings to zero.
We make buildings earthquake-proof even in areas where earthquakes are a remote possibility because the risk if something happens is too great to stand by and do nothing. We cannot do any less for our children. We cannot leave their safety to chance. We must act decisively to keep them protected. We need to send the message loud and clear to criminals in this country that kidnapping children will not be tolerated under any circumstance, for any reason, period.
Child kidnappers are characteristically habitual offenders and carry out their assaults in a highly stereotypical manner. They are some of the most frightening offenders because they plan the kidnapping down to the smallest of details with no regard for how their actions will affect others. Their sole desire is self-gratification.
Protecting the nation's children is one of the most important things, if not the most important thing, we can do in this chamber. We must remain vigilant in our responsibility to the nation. This is a discussion that we should most definitely be having, and I thank the member for Kootenay--Columbia for giving the House the opportunity to do just that.
We have heard a number of different perspectives on how best to approach this issue and I look forward to hearing even more. I know that some members in the House have expressed concerns about the scope of the bill as it is currently written. The only way we can work out any perceived imperfections is to send the bill to committee where it could be examined more closely and refined to ensure it accomplishes everything it sets out to do. I have complete confidence that once this happens and once the bill returns to the House for another look, any concerns will have been addressed and all members will be satisfied.
Let us give the bill a chance. Let us vote it through to committee so it can receive the in-depth examination it so rightly deserves. I hope that all members can set aside any differences they may feel and really focus on what matters, the safety of Canadian children. Our children deserve to be truly safe. Let us make that happen.
The trauma that any kidnapping victim undergoes is unimaginable. Since these children are at such a crucial stage of their personal development, the violence of kidnapping can be even more damaging. Even if the child is returned physically unharmed to his or her family, they will sadly carry painful memories with them for the rest of their lives. When physical violence is part of the equation, things can be even worse. These are wounds from which a child may never fully recover.
Things are not any easier for a child's family. Their most treasured loved ones are gone. There is no way to know what will happen to their children and they have no idea when they might see them again. They too are impacted and will forever have difficulty trusting the world around them. The safety of their world has been shattered.
The pain that children and their families suffer is beyond compare. There is no reason that anyone should have to live through such a terrible experience. It is not fair and it is not right.
People have said it before, but I have no shame in saying it again: even one kidnapped child is one too many. On this I am certain that we can all agree, so I invite every member of the House to stand and support this piece of legislation.
When we talk about the statistics of how frequently or infrequently this happens in our country, we see that the numbers have been fairly steady between 1995 and 2009, with a low of about 30 stranger abduction kidnappings to a high of 68. We had approximately 50 in 2009. We stand in the House and say this is still rare, but 50 is still an alarming number of children going missing in our country from stranger abductions. That may pale in comparison to the 237 parental abductions or the 35,000 runaways, but what is more staggering is what we do not know. In 2009, 11,757 children were reported missing for an unknown reason. We do not know if those were parental abductions, runaways, wanderers, other incidents or stranger kidnappings, but we do know that 50 is too many.
The bill signals that we will not treat these incidents, these children and their families, as insignificant. This is something that is far beyond party lines, so I encourage everyone to do their part to put an end to child kidnapping. It is the right thing to do. It is the only thing to do.
Private Members' Business
February 27th, 2012 / 11:35 a.m.
David Wilks Kootenay—Columbia, BC
Madam Speaker, I would like to thank all of the members who have spoken to this bill. The kidnapping of a child by a stranger is a crime that, in my opinion, as a retired police officer, parent and grandparent, is inexcusable. In most cases the results are devastating. The fact is that another child will be kidnapped by a stranger in Canada and that child's family and friends will live through myriad feelings to which very few Canadians can relate. Those who can relate are never the same. The physical and emotional toll is huge and the burden they carry is for a lifetime.
However, there is the odd time, such as in the case of Kienan Hebert, when a child is found and returned to his or her loved ones unharmed. It is by luck and good police work, in that order, that these rare cases happen. When they do, the attention soon changes from the return of the child to the apprehension of the suspect. In the case of Kienan Hebert, I will be so bold as to say there was not one Canadian who was not hoping that the suspect would be arrested and incarcerated.
The accused persons in cases of stranger kidnappings usually have lengthy criminal records, have been incarcerated before and are escalating their criminal behaviour. They need self-gratification. They do not care about any other person's feelings except their own.
I listened intently as the debate on Bill C-299 has continued and have heard it said that our Conservative government and its tough on crime legislation, especially regarding mandatory minimums, is going to be too costly and will yield little if any results. If anyone in this place has notified the child's next of kin, as I have on a number of occasions, that person will know that the emotional toll on those receiving that type of news is devastating; that the accused in these crimes rarely come forward; and that when the accused are caught, rarely do they show remorse unless they believe it is of benefit to them, and that they will do anything to lessen the chance of incarceration. I have seen it time and time again.
The fact of the matter is there is a certain segment of society made up of career criminals. These people choose that way of life and accept the consequences that come with it. For crimes such as kidnapping by a stranger, there must be a strong deterrent, a strong message sent that this will not be tolerated in Canada. For this crime, there must be a minimum mandatory jail sentence and I hope that every member of Parliament will support this bill.
Private Members' Business
November 28th, 2011 / 11:05 a.m.
David Wilks Kootenay—Columbia, BC
moved that Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), be read the second time and referred to a committee.
Mr. Speaker, it is with great pride that I stand today for the protection of all children and speak to Bill C-299 and to recognize the severity of kidnapping a child under the age of 16 by a stranger, by attaching a minimum sentence of five years to anyone convicted of this crime.
A child is the most valued treasure of a parent, a gift and is bequeathed with the honour of carrying the legacy of that family forward. When that is taken from a family there are no words to describe what the family is going through except sheer terror. For the child taken by a stranger without consent, I can only imagine the fear and the anxiety the child would go through.
In its simplest terms, kidnapping came from the term “kid-napping”, slang for child stealing. Unfortunately, the act of kidnapping is the forgotten crime under normal circumstances. Stranger kidnappings in Canada are a rare occurrence; however, each incident tends to shock the nation. When child kidnapping is portrayed by the media it is usually a report of the most severe kind. A child is taken from his or her home, yard or bed, kept for ransom, for sexual exploitation and sometimes murdered.
A kidnapper is normally classified under one of four categories. The first is pedophiles, individuals who seem to identify with children better than with adults which is the reason they are able to lure children easily. The second is profiteers, individuals who are crime exploiters, who sell children to pornographers or adoption rings. The third is serial killers, methodical and ritualized, with power, dominance and control as the most frequent motivators. The fourth is childless psychotics, individuals who tend to kidnap children when they are unable to have children of their own or have lost a child and seek another in its place.
Child kidnappers are characteristically habitual offenders and carry out their assaults in a highly stereotypical modus operandi. They are some of the scariest offenders because in the terms of kidnapping they have planned what they are going to do and to whom, with no regard for those they are about to affect. Their sole desire is self-gratification. Once the kidnapping has occurred, their attention turns to not being apprehended by the authorities and the victim is drawn deeper into the desperation of the kidnapper.
Kidnappers must ensure that the victim conforms to each and every demand and normally that will involve physical violence. The younger the victim, the more traumatic the experience.
For the most part, if a person has resorted to this type of criminal behaviour, his or her ability for rehabilitation is remote. Why do I say that? Because these people have no regard for the care or well-being of a fellow human being. As I said before, this is about self-gratification or financial gain and nothing more.
Kidnappers seldom stalk their victims. They are usually very skilled at manipulating and luring children. In the most recent case in Sparwood, B.C., the accused entered the home of the victim and removed him while the family slept. Most kidnappers target younger children because they cannot match the strength of an adult and consequently they are quite easy to restrain.
There is one more point about why this law must be changed to better reflect the severity of the crime.
In a 2000-01 study of stranger-kidnapping cases, five cases were studied. In three of those cases, the accused was convicted of murder. In another case, the accused was before the courts and charged with murder. However, the most disturbing to me was the last case. A babysitter kidnapped a child and later returned the child unharmed. The accused was sentenced to open custody and probation. Just because a child is returned unharmed does not justify a leaner sentence. The child was taken without consent and that is just wrong.
I would like to focus for a few moments on two children from British Columbia who were kidnapped during my tenure as a police officer and another, while I was a member of Parliament.
Michael Dunahee was born on May 12, 1986 and disappeared from the Blanshard Street playground in Victoria, B.C. on March 24, 1991. He was four years old. He has never been found. His parents were mere metres away when Michael was taken. His mother, Crystal, was instrumental in getting the AMBER alert program implemented in British Columbia. She also serves as the president of Child Find for British Columbia. Police officers across Canada were kept on alert for years after Michael's disappearance and many people across Canada volunteered their time to search for Michael. It has been over 20 years since Michael Dunahee's disappearance and we hope that he is still alive and he will be found some day.
Mindy Tran was kidnapped and murdered in Kelowna, British Columbia in 1994. As a member of the RCMP stationed in Penticton at the time, I was part of an enormous team assembled to search for her. The fear that gripped the city of Kelowna was very noticeable. For a young child of eight years old to be riding her bike on her street and vanish without a trace is something that no parent should be subjected to. Mindy was found about six weeks later, not far from her home, in a shallow grave.
The third and final child I would like to speak about is Kienan Hebert. Kienan was taken from his home in Sparwood, B.C. this past September. Kienan is three years old. It was the middle of the night and he was taken from his bedroom while the rest of his family slept. For four days, the people of Elk Valley, Canada and the international community were focused on the safe return of Kienan to his family. Through the efforts of so many, and some very good police work, Kienan was returned and his kidnapper arrested.
I have presented three kidnappings with three different results. The families of these children will never be the same. A child was taken from them without consent and those responsible for the abductions did not care in any way about the effects that they would have on so many. They only cared about their own gratification.
I now focus on the most important part of this bill: standing up for the victims of kidnapping and for some of the most vulnerable in our society, our children.
As a police officer for 20 years, I worked with victims of crime in the gravest of circumstances. Those who were subjected to traumatic events such as sexual assault or kidnapping will in most circumstances always be faced with that question: Why me? Most of the time there is no answer and, as such, the victims continue to relive the event and are subject to years of mental torture. There is also fear that the crime will reoccur.
I cannot say how many times I have had to convince victims that their giving a statement and providing evidence in court was the only way for the accused to receive justice. Most victims of crime are so fearful of the accused that facing them in a secure courtroom is a very tough challenge.
Subsection 279(1.1) of the Criminal Code of Canada provides for minimum sentencing when a firearm is used in the commission of kidnapping. In fact, the sentencing is most severe if, “the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization”.
Most kidnappings involving children do not involve a firearm. The child is either lured or physically manhandled.
Our children are more important than any criminal organization. As politicians, we have an obligation to ensure that we protect them at all costs. Children are fragile. They are to be nurtured and loved. They should not be subject to intimidation or fear. They should know all of society will protect them and stand up for their well-being.
In closing, I have received questions regarding the intention of the bill and whether it focuses on the kidnapping of children by strangers. My intention is to have the mandatory prison sentence apply only in cases where a stranger commits the crime of kidnapping a child under the age of 16. I am open to considering an amendment to my bill that would clarify that intention. I call on every member of this House to stand and support the bill.
Private Members' Business
November 28th, 2011 / 11:20 a.m.
Jack Harris St. John's East, NL
Mr. Speaker, I am pleased to have an opportunity to speak today to Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), a private member's bill which was just introduced.
We all have the same strong feelings of revulsion and concern when a child, a young person, is the victim of a crime of this nature, in fact of any nature. I know we collectively have a great revulsion to the crime of sexual predation and sexual assaults. All of us have supported increasing and strengthening of sentences in the case of sexual assaults.
I want to talk a little bit about this particular offence in the context of the Criminal Code. I do not think the prayer that precedes the House opening is in camera in the sense that it is secret, but in the prayer there is an exhortation to ask for support to make good laws and wise decisions in this House. It is kind of in this context that I want to talk about this piece of legislation.
It is a private member's bill in the context of the Criminal Code. I think we all know the Criminal Code is a pretty thick and integrated document with all kinds of inter-related sentences, penalties, crimes and procedures. It has been a part of our criminal law since 1892, when the first code was brought forward.
The sentence for kidnapping of any person is life imprisonment. Although that particular sentence of life imprisonment may be rare for kidnapping, it is in fact not only available but has been used, in particular, in the case of a child. I will refer members to cases. The member said quite rightly that these are extremely rare cases. The fact is that we are going back over 20 years in British Columbia to come up with the three that the member mentioned.
There are also extremely rare cases to be found with pure kidnapping. The kidnapping offence is in the code. There is a series of them. There are abduction charges, forcible confinement charges, and abduction of a child charges, all with different types of approaches and different types of sentencing.
The essence of kidnapping is that someone abducts someone else and takes them from one place to another. In appropriate cases, and I say “appropriate” in the sense that it is the sentencing judge who looks at this. I will refer members to the case of Gillen, which is also quite an old British Columbia case. The offender abducted a child from strangers in order to raise him as his own. In this case, the offender received a life sentence for the kidnapping of a two-week-old baby.
We do see the courts treating the abduction of a child in these circumstances very seriously. I have done some research in response to the member's bill. I know that he is very sincere in bringing this forward, particularly in response to the publicity surrounding the most recent case. It is natural that we would want to follow that case and see what is going to happen to this individual.
To say that, in this case, a minimum five year sentence is appropriate in all cases is uncertain. The circumstances are extremely different in all cases. If we are talking about deterrence, sending messages or that sort of thing, the sentence of life imprisonment is not only available but has been used in the province of British Columbia. If that is not a deterrent or a proper denunciation, then one would have to question whether a minimum sentence of five years is going to have any effect whatsoever.
I do note, and I suppose we should not talk too much about this case because it is still before the courts, there seemed to be some question of mental capacity or potentially diminished responsibility, I do not know, but the family certainly seemed to be aware of something. At one time they said that they did not think that incarcerating the individual for a lengthy period of time would be necessarily appropriate, but obviously leaving it up to the court to decide what an appropriate punishment was for this individual.
We do take these crimes extremely seriously, and so do the courts, and this is one example that I brought forward.
When we look at kidnapping cases generally, whether it is a child or an adult, sentences of 12 to 14 years are not uncommon. Six years is not uncommon, even for the abduction cases where it is not called kidnapping. The starting point, and that phrase was used the other day, is four years, so for aggravating factors it goes higher. However, for kidnapping, we commonly see sentences of 6, 8, 10, 12, 14, even more years for kidnapping, particularly if it involved premeditation, ransom and other charges of that nature.
Kidnapping offences are rare and the kidnapping of children is rarer still, but we do have in our justice system a system where the legislature, through the Criminal Code, sets out the seriousness of the offence by having a maximum penalty, and for the most serious offences, life imprisonment is the punishment. There are circumstances of first degree murder, et cetera.
It is very rare to have kidnapping cases that are simply about kidnapping. Sadly, they are often in connection with other crimes, whether they be of sexual assault or, in the most horrific of cases, murder. Even though they are rare, any case is horrific, any case is to be abhorred.
I will not make any special claim for being a parent, but I think that everyone understands how excruciating it would be if one's child were to go missing, we all feel that, even just keeping track of our children on an ongoing basis as a parent is expected to do.
There is a great deal of emotion about that. We do have a whole bunch of individual circumstances. The mover and one of the other speakers mentioned the difference in spousal situations where there is a dispute over custody.
No one is condoning the other spouse taking the child in these circumstances, but these cases are treated extremely differently by the courts, even in the extreme cases where a child may be taken to another country for some number of years.
These to me are very abhorrent cases as well, where a child is being deprived of the company, custody, and being able to grow up with the mother or other spouse, sometimes without any reason. It is not that the child would be endangered or anything with the other spouse, but is abducted just for mere reasons of a custody dispute, to resolve an uncertainty, or to prevent court proceedings. These are not excuses for the kind of child abduction that unfortunately takes place in spousal disputes.
To get back to the kidnapping, generally speaking we have a problem with private members' bills changing the Criminal Code. We just had an omnibus crime bill where all sorts of minimum sentences would be imposed. If that was important to the government, why was it not part of that?
Private members can introduce whatever bills they want, but it is the government and the Department of Justice that has the responsibility for shepherding the Criminal Code. As a matter of government policy if there are wholesale changes, they could be brought forth and debated through the whole process.
Generally speaking, changes to the Criminal Code by private members are a very difficult thing for us to accept as the official opposition. We have not seen a strong need for this in terms of either the prevalence of the offence or the failure of the courts to handle it properly.
As noted by another speaker, the mandatory minimum sentences here take away the discretion of the courts to fashion an appropriate remedy, taking into account all the circumstances of the case.