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 person.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

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

11:15 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Madam Boivin.

11:15 a.m.

NDP

Françoise Boivin Gatineau, QC

Thank you, Mr. Chair.

We have heard about this through the grapevine now and again and we have seen it in the briefing notes prepared by the Library of Parliament. It seemed that Mr. Wilks, the sponsor of this bill, might be bringing forward an amendment, because there could be some confusion.

First, I assume that you have Mr. Wilks' written consent for this. I will take your word for it, but I just want to be sure that we have his consent. My problem is not about that at all. What concerns me a little is that the crux of the analysis, the study that has just been done on Bill C-299, dealt with the offence specifically and the minimum sentence to such an extent that Mr. Cotler tried to have the minimum sentence removed. The very goal of this bill was to add a minimum sentence to section 279 of the Criminal Code.

As a parliamentarian called upon to create a new piece of legislation, I am concerned about the problems I see in some clauses that seem to be contradictory. I wonder if we are getting involved in an amendment that has not been fully discussed or analyzed.

I think we should have a representative from the department here. Will someone be here at some stage?

Is she there? Can she come to the table, please?

11:15 a.m.

Conservative

The Chair Dave MacKenzie

Would you come to the table, please?

May 31st, 2012 / 11:20 a.m.

NDP

Françoise Boivin Gatineau, QC

When I read it, it does not seem clear to me. It reads:

That Bill C-299, in clause 1, be amended by replacing line 10 on page 1 with the following: imprisonment for life and, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the person referred to in that paragraph, to a minimum

You may tell me that the questions going through my mind are stupid, but, how can a person kidnap someone for whom they have the lawful care or charge?

A whole bunch of questions occur to me. They are questions that I would have loved to ask various people with expertise in the area, and perhaps others too, with no disrespect to the people from the Department of Justice who work with the government on projects like this. It just seems that we are moving a little quickly.

If this was the intention, and if the sponsor of the bill, or the government, had a question about what is in Bill C-299, it seems to me that it would have been better to ask it beforehand, so that all the members of this committee, who have to vote on Bill C-299, can do so with full knowledge of the matter. This is not like a store changing an advertising flyer; we are getting ready to amend an important section of the Criminal Code.

Why are we making this distinction? If we are saying that such a person can commit the offence under section 279, why would that person not receive the same minimum sentence? Why is the government singling out a person who is a parent, guardian or person having the lawful care or charge of the person referred to in one of these paragraphs? Why should a person like that have the right to avoid the minimum sentence when others do not? In the case law, we have seen, for example, a mother who has just lost a child being completely distraught and taking off with another small child. If she is deemed to be able to tell the difference between right and wrong, to the extent that she is not considered not criminally responsible, she could therefore be subject to the minimum sentence.

These are the kinds of questions that occur to us. I am sure that this proposed amendment is well intentioned, but I am not sure that we have really weighed the advantages and disadvantages to see if it stands up, if it is robust.

I do not know if the people from the Department of Justice have analyzed this amendment. Perhaps they could give us some guidance; perhaps they could explain what it means and how it fits into the bill and into the provision that section 279 would then become. Perhaps they could tell us why the distinction is being made between these categories of people. Couldn't brothers, sisters, uncles, aunts be included too, in a way?

All these questions occur to me not only because this is new legislation compared to the second reading in Parliament, but also because of the way the committee has spent the time allotted to us for the study of this bill.

11:20 a.m.

Conservative

The Chair Dave MacKenzie

Ms. Levman, I wonder if you could try to respond.

11:20 a.m.

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

Maybe what I'll do is just take a little step back and explain the broader framework in which this amendment is taking place. I know there have been some questions about the kidnapping offence, forceable confinement, the abduction offences, etc. What we have in the Criminal Code is a broader framework that deals with abduction, and child abduction types of cases.

The kidnapping offence is an offence of general application. It can be applied in cases involving abductions of children, of course, but really it is there to deal not just with abductions of children but also with any kind of movement, the taking of one person from one place to another against their will, which is a violation of fundamental human rights enshrined in our charter. This can take place in the context of a child. It can take place in the context of an adult victim as well.

The origins of these offences are in fact quite ancient British law. We can't exactly pinpoint the exact year but we know they came about hundreds of years ago, and, in fact, the kidnapping offence in Britain is still a common law offence. It's not in the statute.

We know they were developed for different purposes. We also know that the elements of the offences are different. So kidnapping is really an offence against the person and therefore we are concerned with consent in kidnapping. So whether or not the person agreed to go with the alleged kidnapper really is the critical issue that we look at when we deal with kidnapping.

The difficulty with using the kidnapping offence in relation to children is to what extent and how does the court evaluate whether or not a child consented. The court has given some guidance on that and we know now that where a child is very young, the consent issue is not going to be a terribly live one when it's, for example, Kienan Hebert who was only three. That issue might become a live one where the child is older—12, 13, 14. I'm not exactly sure, but there are issues about mature minors, etc.

Given the concern that sometimes it might be difficult to apply kidnapping in the cases of child abductions, the child abduction specific offences were developed, and they are truly offences against the custodial rights of parents. The court will not look at or find relevant the consent of the child. What the court is looking at is the consent of the parent or person who has lawful authority over the child.

What happens when we impose a mandatory minimum penalty in the context of the kidnapping offence is that we are potentially applying it to a broad range of cases, because of the breadth of the offence, because the offence is an offence of general application. So we're concerned that a mandatory minimum might be applicable in a case where we might prefer to have one of the parental child abduction offences used. However, because it's such a broad offence, it could in fact be used and we do know there have been charges against parents in these types of cases.

We unfortunately don't have any reported case law where the kidnapping offence was charged and the court actually looked at how the kidnapping offence could be applicable in a parental child abduction type of scenario. But we do know that it is applicable, and that is a cause for concern, where we might want a judge to factor in the particular circumstances of the case involving a parent. As you pointed out, custody and access disputes often involve the taking of children, but not to the child's detriment—or at least, that's not the intent of the parent.

My understanding is that the government was concerned about that, which is the birth, if you will, of this particular amendment, so that it will not apply in the context of parental child abduction cases. We do have those offences—there are sections 282 and 283, which are intended to deal with those types of scenarios—but the bottom line is that kidnapping, being an offence of general application, can be and has been used in these types of cases, hence the exclusion of parents from the application of the mandatory minimum penalty.

I hope that gives you some background on the offences and the nature of the amendment.

11:25 a.m.

NDP

Françoise Boivin Gatineau, QC

But just on my question, why reduce the scope of the family link to the mother, the father, and the legal guardian? Grandparents would be scared, maybe wrongfully, but would think that something.... I don't know; so many ideas come to my mind that I—

11:30 a.m.

Counsel, Criminal Law Policy Section, Department of Justice

Nathalie Levman

I understand what you're saying.

These are policy issues and policy calls. The concern in the framework of the offences is that we have offences that deal specifically with parents, and in those cases the government does not want mandatory minimums to apply.

As to the possibility of other people being included in this exemption, it's not really my place to discuss that.

11:30 a.m.

Conservative

The Chair Dave MacKenzie

Madam Findlay.

11:30 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

I have a few points.

First of all, I wanted to point out that the wording of the amendment we're proposing is “a parent, guardian or persons having the lawful care of charge of the person”. It is not limited to parents and legal guardians. That's why I used the term loco parentis. It includes someone in lawful care or charge. That is not necessarily always someone who is actually a legal guardian.

Secondly—

11:30 a.m.

NDP

Françoise Boivin Gatineau, QC

That is not said in the French. That's why I'm saying that, in reading the French.... If you read the English, I agree with you. In English it's a bit wider in scope; in French, not at all. There's a very specific definition for

“une personne ayant la garde ou la charge légale”. In French, the term “charge légale” means that…

you either have a court order or are definitely the legal guardian. It's almost the same thing.

So I would verify that. That's why I say that before we introduce something that is brand new and has not been reviewed by any witnesses, we still have time—it's not as if time is of the essence here—to be....

We have the time to take a deep breath and make sure that we are not making a mistake. I want my colleague to understand that we are not opposed to the idea of making the exception. We are opposed to the minimum sentence, so if it is being removed for some groups of people…But we do not want to create a situation whereby another injustice is committed.

11:30 a.m.

Conservative

The Chair Dave MacKenzie

Maybe we could have another comment from the Justice official here.

11:30 a.m.

Counsel, Criminal Law Policy Section, Department of Justice

Nathalie Levman

We do, in fact, know what that phrase means from a legal perspective in the English. I believe it would cover anyone with legal or de facto custody of a child. Wherever somebody with legal custody, for example, transfers that custody—even by saying, you take care of my child for this period of time—then the exemption would apply to that person. Cases in which it wouldn't apply are those in which that custody hasn't been transferred.

11:30 a.m.

Conservative

The Chair Dave MacKenzie

Madam Findlay, go ahead.

11:30 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Thank you.

I do not pretend to be an expert in the French language, but we certainly can make sure and verify that the French has the same meaning as the English. I can only go on the English version.

Just as the official has said, when you're talking about “lawful care or charge”, you're talking about someone who may have de facto custody, who may be in that position, that loco parentis, that parental-type position with the child, but not necessarily a legal guardian.

You mentioned Mr. Wilks as the proposer of the bill. I think it's important here to note that what we're trying to do is actually narrow the application of the mandatory minimum, not expand it. We want a narrower scope to be applied.

As someone who for many years dealt with family law cases and the volatility of those situations with children, we don't want a criminal process superimposed on a family or divorce situation unnecessarily, or where it doesn't fit and wouldn't be suitable. Of course there are many people in the best interests of a child who along the way can end up in loco parentis. It may in fact be an aunt, uncle, godparent, or grandparent, but those are also people who may overstep their bounds, who are not in lawful care or custody; then that's a different situation.

I would suggest that the sponsor's intention has been clear from the beginning of this parliamentary process, and our amendment is in line with those intentions.

Mr. Wilks testified before this committee with regard to the abduction of Kienan Hebert. The abduction, which happened to be, unfortunately, in his riding, was by a stranger last year. It instigated his efforts to ensure the imposition of a severe penalty in cases involving stranger child abduction.

Also, at second reading debate in the House, he clearly stated that his intention in introducing the bill was to have the mandatory prison sentence apply only in cases where a stranger commits the crime of kidnapping a child under 16.

I have the transcript from Monday, November 28, 2011, when Mr. Wilks spoke to his bill. He said:

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.

In response to whether this is in keeping with his intention, I say that it is and that he's been very clear about that. Our amendment is intended, as I said, to narrow the scope and to make it clear that we are talking about a young person being kidnapped by someone where there is no relationship. It is a stranger to the child.

Thanks.