Evidence of meeting #40 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 amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Nathalie Levman  Counsel, Criminal Law Policy Section, Department of Justice

11:40 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

All right. In any event, with respect to our amendment, and because I believe there are other areas of the code and civil law that deal with the scenarios we're talking about, we're moving forward with our proposed amendment.

Thank you.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Seeback.

11:45 a.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

Actually, our fearless leader, Ms. Findlay, raised all the points I wanted to raise, so I'm fine.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Cotler.

11:45 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Scott raised the concerns I had about the custody issue, and whether we've been able to think these things through to the point where we can properly rule on them today. This brings up the question I was going to ask on the issue of the parent. If a person gives up a child for adoption, would they be covered by this or not?

11:45 a.m.

Counsel, Criminal Law Policy Section, Department of Justice

Nathalie Levman

I would have to verify that. My instinct tells me that all parental rights would be extinguished and they would no longer be a parent of that child. But I'm a criminal lawyer, not a family lawyer, so before I make any kind of definitive statement I would prefer to consult with my colleagues who are experts in family law.

11:45 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

That precisely confirms the point Mr. Scott made, to bring up another example. I could even bring another example of a person who abandons their child at birth and leaves...no longer the effective parent, etc.

I just wonder if we have thought these things through, Mr. Chairman. I'm wondering if it's premature in the manner in which we're approaching it today.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Madam Boivin.

11:45 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

I would like to follow up on what Mr. Cotler and Mr. Scott have said.

Given the answer that Ms. Levman just gave us, I think we should perhaps ask someone with a specialty in family law. We have two interrelated concepts. We have the criminal offence under section 279 and we have the impact. This amendment introduces another area: the lawful care or charge.

I do not want to vote having told myself that the meaning is probably the same, that it should cover…this is not any old ad hoc committee; this is the committee on justice. We have to submit a bill to Parliament. Whether we agree on some points or not is not what this is about; since the Department of Justice representative cannot assure us…That is no criticism. We all have our specialty. I am certainly no expert in family law, so I ask questions. If I do not get an answer, I do not feel comfortable voting. From the outset, I have been saying that we are not really opposed to reducing…

the scope of the thing. We appreciate that. But are we creating a monster with a lot of heads, and we have no idea what is going to come out of it? I think we should suspend this—albeit not for long—and get somebody to come to answer those questions that we have before we decide what to do with the amendment.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

On Madam Boivin's suggestion, it would take the unanimous consent of the committee to stand down, and attempt to fulfill her request.

11:45 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

No, we don't have that consent. We've already said that we would have officials ensure that the French version has the same legal effect as the English. We're being told that it does.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Okay. Just as long as—

11:45 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

It's more than about just the French and the English; it's what it represents. I mean, it's at the core of the definitions of who's “la garde ou la charge légale” or “parent, guardian, or person having the lawful care”. Wouldn't it be more prudent, if we have questions and we don't have the answers, to just take a step back?

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

But there is no consent.

Mr. Cotler.

11:45 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

There's no urgency that this thing be adopted today. Once adopted, it's going to be there in the Criminal Code, and hopefully in an enduring fashion. Would we not want to put the best possible legislation in the Criminal Code rather than say that we have to do it at this meeting and put it through without the proper appreciation?

I don't see how doing it next week rather than this week would prejudice this process. But I do see how putting it in without properly thinking it through could prejudice the process.

11:50 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Seeback.

11:50 a.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

I think we have thought it through. People have come up with one or two examples that would be extremely rare in application. Every time we've brought witnesses here to this committee, members on the other side have said that they have so much faith in our judges and that we have the best judicial system in the world. Quite frankly, I think a judge is going to be in a position to be smart enough to figure out whether this section applies to somebody who abandoned their child, and 30 years later, kidnapped them. I think a judge can figure that out.

I don't think we need to spend another week having witnesses come and try to mince this down into even smaller parcels. This is very clearly defined, as far as I'm concerned. Any sort of ambiguity that may exist, which I don't agree does, a judge is going to be able to figure out.

I see no need for us to spend more committee time looking at this.

11:50 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Scott.

11:50 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

I won't respond exactly to Mr. Seeback's view that the exceptions are marginal. I think that some of what we have been discussing and our concerns might be more than marginal, especially, for example, the grandparents issue.

I was wondering if Ms. Findlay could help me with respect to one comment she made, to make sure I understood. You talked about “lawful care or charge” being quite expensive or broad. I'm not sure what word you used.

11:50 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

It was “broad”.

11:50 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Thank you.

So I'm wondering whether, from your point of view, that therefore means that it's different from what we would call in loco parentis. Or does in loco parentis map onto that same broad meaning?

11:50 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Ms. Findlay.

11:50 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

I'm using both terms, because both are recognized in the case law. In loco parentis means, in effect, lawful care or charge. In loco parentis, as you know, doesn't necessarily mean that there has been a court order saying that this person has custody. It means a situation where it is lawful for that person to be with that child, because that person has the care or charge, the day-to-day care, whatever it may happen to be.

There is a lot of case law out there on this. I guess what I'm struggling with, with respect to some of the examples you and your colleagues have been giving, is that, as I said, our amendment seeks to narrow the application or the scope of the mandatory minimum.

If you had a situation, as Mr. Cotler mentioned, of someone who abandoned a child 30 years ago but is still a biological parent, for instance, that's exactly the situation where the judge would have discretion.

I think it was the opposition members, and I don't know who exactly, who said earlier that many of the sentences we've seen actually exceed the mandatory minimum we're contemplating. The judge has the discretion to do that in those situations.

In terms of a mandatory minimum and when it is going to apply, should the case be proven against that person, we feel that it is consistent with our civil law. It is consistent with the normal course of human events and family connections that someone, at least on the face of it, who is a parent, or who has lawful care and charge, or who is a legal guardian would not be subject to the mandatory minimum.

I don't see the lack of clarity you're concerned about.

11:50 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Cotler.

11:50 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Chairman, I think we brought up enough examples—and there are more—saying that these are not just some sundry exceptions, and one can go on. It wasn't just the 30 years of abandonment; it was also the question of adoption and so on. They're different issues. Apart from the fact that we may have different provincial definitions of the term “parent”, just as we have different definitions. It's mère ou père in French, and “parent” in English. All these things bring up complicating factors. Again, I say that it's somewhat premature.

My colleagues opposite say we can trust the judges to be able to make the appropriate judgments and understanding. Precisely. That's why I wonder why we have this mandatory minimum to begin with. If we can trust the judges, and they can make those kinds of judgments, then we don't need the mandatory. They can make that kind of judgment and tailor the situation to the particular circumstance with regard to the offence and the offender at hand. The more they speak, I think the more they're making my point as to why we shouldn't have a mandatory minimum.

I might add, Mr. Chairman, that you ruled my particular amendment out of order. I understand that. But then, again, this legislation prescribes, as it says in this summary, “...a minimum punishment of five years when a kidnap victim is under sixteen years of age”. It doesn't speak of any amendments. In this sense, their amendment is also a way of going contrary to the initial principle of the legislation. I would like to have a ruling as to whether that's out of order, given that the same principle is involved.