Mr. Speaker, today I rise to speak to Bill C-299, introduced by the hon. member for Kootenay—Columbia, which is at report stage and third reading. This bill, entitled An Act to amend the Criminal Code (kidnapping of young person), adds a new paragraph to subsection 279(1.1) of the Criminal Code. It provides for a minimum sentence of five years for anyone who kidnaps a person under 16 years of age. The legal definition of kidnapping is found in subsection 279(1), which states:
Every person commits an offence who kidnaps a person with intent (a) to cause the person to be confined or imprisoned against the person’s will; (b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (c) to hold the person for ransom or to service against the person’s will.
I will simply quote some witnesses to illustrate my remarks. A former Supreme Court Justice had this to say:
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....
...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.
The criminal offence of kidnapping, as defined earlier carries a number of sentences that are set out in subsection 279(1.1) It should be noted that the maximum sentence of life imprisonment applies to all cases. Bill C-299 also provides for the same maximum sentence.
In our society, protecting minors is very important. It is always sad to hear about child kidnapping on the news. Sexual predation and assault are crimes that we categorically condemn. I would remind the House that the NDP supported harsher sentences for sexual assaults. However, with regard to this bill, I would like to express reservations about, on the one hand, the objective of creating a deterrent and, on the other, the bill's usefulness from a strictly legal standpoint.
It seems that my colleague introduced this bill to create a deterrent by establishing a new minimum sentence. If that is the objective, I would like to remind my colleagues that the sentence of life imprisonment already exists and that it has been applied in British Columbia.
If we look next at the legal analysis of this bill, the Criminal Code already provides a legal framework for kidnapping. Thus, people found guilty of this criminal offence can be sentenced to a maximum of life in prison. When judges have to rule on cases involving the kidnapping of a child, they have tools available to them that allow them to impose suitable sentences on offenders who represent a danger to society. It is important to note that, in a review of cases involving the kidnapping of a child, the average sentence imposed already exceeds the five years set out in the Criminal Code and is often as long as 8 years. Including a minimum sentence of five years in the Criminal Code would therefore only serve to limit the judge's discretion. Judges must be able to assess the extenuating and specific circumstances when making their decisions.
As a member of the Standing Committee on Justice and Human Rights, I had the opportunity to listen carefully to the various witnesses when Bill C-299 was being examined in committee. What we learned there was that a minimum sentence limits the work of a judge in determining the sentence and that the deterrent effect of the minimum sentence would not meet these objectives in that it would not prevent people from committing the crime of kidnapping.
The president of Child Find British Columbia said:
As some of the members have pointed out, I believe any terms that have been put out there have not been for less than five years. They've been for anything higher than five years...I don't know to be quite honest, because as I said, judges are already going beyond that, and by putting in five years it now brings down that eight-year sentence to a minimum of five years, so I don't know if that is the message.
For all these reasons, in the case of mandatory minimum punishments, as the lawyer for the Canadian Civil Liberties Association said:
...that evidence shows the contrary...The bottom line is that mandatory minimum sentences are not effective. They're a simple way of looking at a complex problem and, in my submission, ultimately a myopic way of looking at that problem...If the intent of this bill is to decrease the kidnapping of young people, to protect young people, the evidence shows that mandatory minimum sentences, I submit, will not accomplish that goal. In turn, they will bring the practical side effects that I can testify about: the increase in court time; the perverse incentives; the shift—