Bill C-299 (Historical)

An Act to amend the Criminal Code (kidnapping of young person)

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.

Criminal Code

[Joy Smith, Conservative, 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.

[Philip Toone, NDP, 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—

[The Deputy Speaker, Denise Savoie]

Order. I am sorry to interrupt the hon. member.

Resuming debate, the hon. member for Mount Royal.

[Irwin Cotler, Liberal, 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.

[Ryan Leef, Conservative, 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.

[David Wilks, Conservative, 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.

[The Deputy Speaker, Denise Savoie]

The time provided for private members' business has expired.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker, Denise Savoie]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, Denise Savoie]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, Denise Savoie]

In my opinion the yeas have it.

And five or more members having risen:

Pursuant to Standing Order 93, the division stands deferred until Wednesday, February 29, immediately before the time provided for private members' business.

The House resumed from February 27 consideration of the motion 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.

[The Speaker, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-299.