Justice Committee on May 15th, 2012

[John Major]

I think so. There's no magic bullet, as the expression goes. But aggravating circumstances moves the charge to a different level, and the judge has to consider it.

In Alberta, they developed a minimum starting point for serious sexual assault, and the court of appeal told the trial judges that they had to start at three years. That was subject to comment and back and forth, but it was something similar to what you're speaking of. An aggravating circumstance alerts the judge, if he needs alerting, to consider the upper end of sentencing, so it's a useful suggestion.

[The Chair, Conservative, Dave MacKenzie]

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

Thank you for being here today, Justice Major.

My name is Kerry-Lynne Findlay, and I'm a member of Parliament from British Columbia.

When Mr. Wilks, who proposed this private member's bill, gave a speech in second reading, he stated that it was always his intention that this would apply to kidnapping by a stranger. In that there was some discussion here on this issue of parental or familial abduction, or I should say, kidnapping. I wanted to bring to your attention to the fact that we, as government, have an amendment we are bringing forward to exempt parents, guardians, and persons having the lawful care or charge of the child from the application of this mandatory minimum sentence. We're suggesting this precisely for the reasons you have talked about, in that those circumstances are quite different from those of a stranger taking a child.

Would that amendment make sense to you?

[John Major]

It would make sense to me, but it would not address the question of minimum sentence for, let's call it, commercial kidnapping. 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.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Unfortunately, as my colleague quoted Mr. Harris, who is the former justice critic for the NDP, in these very difficult cases, which thankfully are rare, it is very unusual for a child to be returned. There often is other criminality along with the kidnapping.

Would you agree with that?

[John Major]

Yes. That's true.

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

[Kerry-Lynne Findlay, Conservative, 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?

[John Major]

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

[Kerry-Lynne Findlay, Conservative, 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?

[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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madam Findlay.

Mr. Jacob.

[Pierre Jacob, NDP, 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?

[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.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Justice.

I will share my speaking time with Mr. Côté.

[Raymond Côté, NDP, 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?

[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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Côté.

We've now run out of time.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Very well. Thank you, Mr. Chair.

Thank you, Mr. Justice.

[The Chair, Conservative, 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.

[John Major]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Before I adjourn the meeting, we have witnesses scheduled for the 29th. I haven't heard from anybody about witnesses beyond that, so we've tentatively scheduled clause by clause on the 31st. Then we have four to six meetings, but perhaps more like four meetings after that. So I need some direction from the committee. I don't think there's any legislation—

[Françoise Boivin, NDP, Gatineau, QC]

Bill C-36 is coming.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

It's coming and I think by the time we have to make that decision, I believe it will be to the committee.

[Françoise Boivin, NDP, Gatineau, QC]

We'll be in committee.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

If you could just hold off for a little bit, I mean, we'll certainly find something to—