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

12:50 p.m.

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

John Major

Yes. That's true.

A highly publicized case recently in Ontario is an example of that.

12:50 p.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Yes. I think you're referring to the Stafford case, which was very unfortunate.

You would agree with me as well, I'm sure, that of course Parliament has the jurisdiction to make changes to the Criminal Code. That is what we as legislators are tasked with doing. Is that correct?

12:50 p.m.

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

John Major

So long as you observe the requirements of the Charter, that's right.

12:50 p.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

In that respect, often legislators will bring in, for instance, maximum sentences, and within the parameters of judicial discretion a judge still has to take that maximum into account.

Minimum sentences are not new in the code. This is not a new thing. There have been mandatory minimums for many years. Isn't that right?

12:50 p.m.

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

John Major

I'm not aware of many minimum sentences, but I haven't studied the question, so I don't know. I'm more familiar with the importing of drugs and the jurisprudence that was discussed in that case.

Nobody gets very excited about a minimum sentence of seven days for, say, drunken driving, because seven days goes by rather quickly. When you get into five years or in that area, it's a little more significant, and you know I'm sure from your own experience that not all criminals are the same. Not all kidnappings are the same. It would be an unusual case in which you would think of a suspended sentence for a stranger performing a kidnapping.

You have to think of someone with diminished responsibility. Should that person be treated exactly the same as a hardened criminal who's operating solely for cash? It's just the variation in people that pushed me towards the view that a minimum sentence is something that I find has a lot of flaws.

12:55 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Madam Findlay.

Mr. Jacob.

12:55 p.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

Thank you, Mr. Chair.

Thank you, Your Honour John Major, for coming to share your experience. You spoke very well about the importance of trusting the judge, in other words of allowing the judge to exercise discretion.

Will imposing mandatory minimum sentences lead to other negative or unintended effects, which will create an imbalance?

12:55 p.m.

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

John Major

No, I think your general statement covers it.

I'm getting off the point a little, but in some states in the United States, the jury determines the sentence. For instance, when it comes to capital punishment, the question will go to the jury as to whether or not it should be life imprisonment or execution, and it's the jury that makes the decision. That complicates the system and it backlogs very quickly, because juries have to be instructed and selected and so forth, and they may act more emotionally than a judge. But that's an alternative that the Americans in some states have adopted.

It's an important question, and I'm not attempting to tell you that what I'm saying is the only solution or the right one. It's simply the expression of my own view from having observed the situation over years.

12:55 p.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

Thank you, Mr. Justice.

I will share my speaking time with Mr. Côté.

May 15th, 2012 / 12:55 p.m.

NDP

Raymond Côté Beauport—Limoilou, QC

Thank you, Mr. Chair.

Thank you, Mr. Justice, for making yourself available to answer our questions. I have to say I really liked the parallel you drew with the Income Tax Act. I found it to be very relevant. It showed the dangers of making the Criminal Code unnecessarily complex.

Mr. Justice, one aspect of law fascinates me, and it is that a law, as an instrument, must have a purpose. Bill C-299 must also have a purpose. I wasn't able to put the following question to my colleague Mr. Wilks, who presented this bill, because we ran out of time.

If we suppose that the purpose of imposing a minimum sentence is to deter people from committing a crime, can we hope that goal will be attained?

12:55 p.m.

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

John Major

That would be the hope, but 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.

12:55 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Côté.

We've now run out of time.

12:55 p.m.

NDP

Raymond Côté Beauport—Limoilou, QC

Very well. Thank you, Mr. Chair.

Thank you, Mr. Justice.

12:55 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Justice Major, for spending your time with us. We appreciate it, it's been very informative. Thank you very much.

1 p.m.

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

John Major

Thank you.