Evidence of meeting #37 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was kidnapping.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • John Major  C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual

12:40 p.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

That's of course what every parent wants. Thank you very much, sir.

12:40 p.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Scott.

12:40 p.m.

NDP

Craig Scott Toronto—Danforth, ON

Thank you, Mr. Chair, and thank you, Justice Major, for joining us at a distance.

I just wanted to clarify one thing just to make sure that I understood.

You spoke, Mr. Justice Major, about criminal law principles as one reason to be wary of mandatory minimums and you also spoke separately of charter thresholds. Would I be correct in understanding you as saying they are two different things? Something could pass muster under the charter and still not be the best thing from a criminal law principles perspective?

12:40 p.m.

C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual

John Major

Yes, I think so. I think that there are a number of provisions in the Criminal Code that would pass muster but when the code is revised, I think the revisionist would say, “That section is badly written. I don't like this, it passes muster, but we can improve it.” They are two separate considerations.

12:45 p.m.

NDP

Craig Scott Toronto—Danforth, ON

Madam Boivin referred to your comments on the Arcand decision coming out of Alberta, where the Alberta Court of Appeal had what I think you called a dissertation or essay—I can't remember which—on the principles of sentencing. Part of it was starting point sentencing, coming jurisprudentially from the higher court to the lower courts.

Is there anything you haven't had a chance to mention about the relevance of principled judicial discretion within sentencing? Is this something that we need to take more note of when these minimum sentence proposals come before us? Is there anything you've not told us that you think we should know?

12:45 p.m.

C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual

John Major

The experience with minimum sentences has not been very good, particularly in the United States. There have been cases, one in particular, where a federally appointed judge felt the independence of the judiciary was compromised by the minimum sentence. He resigned and campaigned against minimum sentences at various bar conventions in the United States.

The trouble in the minds of the legislators and the public at large is, “Can we trust the judges?” That's a question that comes up from time to time on a number of things. If the judge is law-and-order, he'll perhaps lean to a tougher sentence. If he's more rehabilitative-minded, he'll go the other way. But we have great confidence, and should have, in our judges. As a citizen, I feel more comfortable with them having some jurisdiction on the severity or leniency of sentence.

Remember, if he doesn't follow the principles of sentencing, the court of appeal is there. My comments with respect to the Alberta Court of Appeal came about in part because I was a member of that court. Being retired, I have full constitutional rights of freedom of speech, and it is very tempting to comment on their decisions from time to time.

12:45 p.m.

NDP

Craig Scott Toronto—Danforth, ON

You can get in trouble commenting on courts, as I found out on the day I arrived in this House.

12:45 p.m.

C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual

John Major

But age will take you out of that.

12:45 p.m.

Voices

Oh, oh!

12:45 p.m.

NDP

Craig Scott Toronto—Danforth, ON

One last thing then, would it be from your perspective consistent with Mr. Wilks motivation if...?

We already have section 718.2, which talks about other sentencing principles, including aggravating circumstances, which still leaves the judge to make the final determination. But what if we were to consider the idea that kidnapping somebody under the age of 16 would be presented as an aggravating circumstance within sentencing? Would that be preferable from your point of view to a hard-and-fast minimum?

12:45 p.m.

C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual

John Major

I think so. There's no magic bullet, as the expression goes. But aggravating circumstances moves the charge to a different level, and the judge has to consider it.

In Alberta, they developed a minimum starting point for serious sexual assault, and the court of appeal told the trial judges that they had to start at three years. That was subject to comment and back and forth, but it was something similar to what you're speaking of. An aggravating circumstance alerts the judge, if he needs alerting, to consider the upper end of sentencing, so it's a useful suggestion.

12:45 p.m.

Conservative

The Chair Dave MacKenzie

Ms. Findlay.

May 15th, 2012 / 12:45 p.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Thank you, Mr. Chair.

Thank you for being here today, Justice Major.

My name is Kerry-Lynne Findlay, and I'm a member of Parliament from British Columbia.

When Mr. Wilks, who proposed this private member's bill, gave a speech in second reading, he stated that it was always his intention that this would apply to kidnapping by a stranger. In that there was some discussion here on this issue of parental or familial abduction, or I should say, kidnapping. I wanted to bring to your attention to the fact that we, as government, have an amendment we are bringing forward to exempt parents, guardians, and persons having the lawful care or charge of the child from the application of this mandatory minimum sentence. We're suggesting this precisely for the reasons you have talked about, in that those circumstances are quite different from those of a stranger taking a child.

Would that amendment make sense to you?

12:50 p.m.

C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual

John Major

It would make sense to me, but it would not address the question of minimum sentence for, let's call it, commercial kidnapping. 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.

12:50 p.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Unfortunately, as my colleague quoted Mr. Harris, who is the former justice critic for the NDP, in these very difficult cases, which thankfully are rare, it is very unusual for a child to be returned. There often is other criminality along with the kidnapping.

Would you agree with that?