Evidence of meeting #37 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 kidnapping.
A recording is available from Parliament.
12:30 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Thank you, Mr. Chairman.
I want to welcome Justice Major. It's a pleasure to have you with us, Justice.
You mentioned the prospective constitutional hurdle of cruel and unusual punishment, though it might be safe under section 1. Now, if this were a government bill, it would be subject to the requirement of vetting under section 4 of the Department of Justice Act, whereby the Minister of Justice would have to undertake to show that such legislation is not inconsistent with the Charter of Rights and Freedoms. But as this is a private member's bill, it's not subject to that kind of vetting.
We are witnessing an increasing pattern of private members' bills being taken over by the government—becoming government bills, but without the obligation in cases of prospectively suspect provisions of the responsibility for vetting those provisions.
12:30 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
Well, Mr. Cotler, let me ask you, because I don't know the answer to this. What about the provisions of section 33? Let us suppose the minimum sentence was found to be unconstitutional. Couldn't the overriding provisions apply and the government pass it in any event?
12:35 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I would hope that the notwithstanding clause would not be the kind of option that either the federal or provincial governments would consider. This is a much more widespread pattern here.
12:35 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
I agree, but we can't lose sight of the fact that the section exists.
12:35 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
I agree with you that it's unlikely to be used in this circumstance, but it's there. Depending on the determination of the government in power at any one time, who knows whether they'd be so intent that they'd to go to section 33. Frankly, I doubt it, but nonetheless it's there.
12:35 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Leaving aside the constitutional issues for the moment, there is a policy concern. In the matter of mandatory minimums, you remove discretion from the judges and transfer it to the police or the crown. When you transfer it from judicial discretion in open court with the possibility of appeal to a more private type of plea bargaining and the like, you can have one of two outcomes.
You can have an outcome whereby the accused pleads to a lesser charge, so the objective of denunciation, which was held to be the principal purpose of the bill, gets diminished or lost. Or there's the alternative, where the accused goes to trial and thereby the courts become clogged up because of these mandatory minimums.
It seems to me that there are some policy concerns here that we ought to consider as well.
12:35 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
You can draw from the California experience where they have the three strikes and you're out. I don't know whether you could call it evidence, but there is a growing belief that when facing an accused charged with stealing a piece of pizza off a plate—it's his third offence and the judge knows if he convicts he's going to jail for life—the judge finds some way of seeing a reasonable doubt. Or if the judge doesn't agree with the mandatory sentence, he can rationalize, perhaps on the evidence, a little more favourably to the accused to find some way, procedural or something else, not to find him guilty.
That's another hurdle. Not all judges will see the evidence the same way. I think they're human and mindful of a minimum sentence, and they don't believe the minimum sentence should apply. The next thing you know you might have an acquittal, which is one other consideration along with the ones you mentioned about laying the charge in the first place or pleading guilty to a lesser charge.
So the path is strewn with problems.
12:35 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you, Mr. Chair.
Thank you, Justice Major.
I'm Brian Jean, from Fort McMurray, Alberta, where I practised criminal law and divorce law for many years.
Looking at statistics, I note that in 1985, for instance, there were somewhere around 1,327 reported kidnappings, of which 21% had charges laid. There were 168 males, 80 females, and 9 juveniles that were ultimately charged. There was about a 21% charge rate, which in my mind means that 79% of people are getting away with it.
During the time I practised divorce law, I recognized of course that the Divorce Act has children as a primary concern, as does the Hague Convention on international child abduction, which all of Canada's jurisdictions are a signatory to.
I have two questions for you in relation to this, particularly relating to the children. I'd like you to keep in mind the primary concern, which I think should be children, even in relation to these particular charges.
The first is a parent exemption and how you would word a parent exemption to ensure that it was left more to a civil court, except in particular cases that are nefarious and very difficult to deal with. The second is the chance of return, especially relating to a mandatory minimum sentence of some 10 years, for instance, or five years, as the case may be, depending on what the committee ultimately decides.
What is the chance of returning a child, if indeed somebody is faced with serious time in jail? Do you think that would be part of the equation, or should it be?
12:40 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
You raise an interesting question on the number of kidnappings. The majority of those, as I think you inferred, would arise out of domestic relations. But in some cases they're rather benign—if you can use that word on a kidnapping—where the parent takes the child from Alberta to Ontario and goes into hiding. There are the other cases where—and I think there's a couple current on this—the child is taken to Iran and the Iranian government is not part of the Hague Convention and there's no way that you can legally get the child back. I don't know if there's any solution to that.
On cases where the Hague Convention does apply, you raise another interesting question that the country dealing with possession of the child looks to see the 10-year minimum that this person faces—and let us suppose it's a mother who is well-meaning but misdirected on taking the child out of the jurisdiction—and I think a judge might have difficulty. In our jurisprudence we've taken the position, on returning criminals charged with murder to the United States, that we will not extradite unless we get assurance that there will not be an execution. What you raise is a very difficult question. When the child is in a non-Hague recognized state, I don't know what you can do.
On the second question, the severity of the sentence would, I think, play a part in the possession state deciding whether or not to return the child.
12:40 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Would it be possible to encourage, in the sentencing, some form of direct consideration if the child is returned unharmed?
Also, I just wanted to point out that in 2010—the stats I quoted were 1985—the actual total amount of kidnappings and abductions based on the new stats, which are, quite frankly, much better than the old 1985 stats, are almost 4,900 compared to somewhere in the neighbourhood of 1,327 in 1985. The amount has substantially increased. But I would like to hear your comments relating to the other issue, specifically relating to whether or not you could see some amendment in there, in sentencing, to encourage the return of the child unharmed and whether or not that should be a consideration.
12:40 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
I think it merits consideration because family kidnapping and kidnapping for ransom are two different things. In kidnapping for ransom, if the child is returned unharmed it could be a mitigating factor. In a family situation, it's unlikely that the parent would harm the child after kidnapping them. He or she is kidnapping, ostensibly, for love and affection or for revenge against the other spouse. In the case of—let's call it a commercial kidnapping—the return of the child unharmed is a very useful suggestion. It's an inducement to someone who may regret what he's done, and not wanting to cover his tracks by murdering the child, will return the child.
12:40 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
That's of course what every parent wants. Thank you very much, sir.
12:40 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you, Mr. Chair, and thank you, Justice Major, for joining us at a distance.
I just wanted to clarify one thing just to make sure that I understood.
You spoke, Mr. Justice Major, about criminal law principles as one reason to be wary of mandatory minimums and you also spoke separately of charter thresholds. Would I be correct in understanding you as saying they are two different things? Something could pass muster under the charter and still not be the best thing from a criminal law principles perspective?
12:40 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
Yes, I think so. I think that there are a number of provisions in the Criminal Code that would pass muster but when the code is revised, I think the revisionist would say, “That section is badly written. I don't like this, it passes muster, but we can improve it.” They are two separate considerations.
12:45 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
Madam Boivin referred to your comments on the Arcand decision coming out of Alberta, where the Alberta Court of Appeal had what I think you called a dissertation or essay—I can't remember which—on the principles of sentencing. Part of it was starting point sentencing, coming jurisprudentially from the higher court to the lower courts.
Is there anything you haven't had a chance to mention about the relevance of principled judicial discretion within sentencing? Is this something that we need to take more note of when these minimum sentence proposals come before us? Is there anything you've not told us that you think we should know?
12:45 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
The experience with minimum sentences has not been very good, particularly in the United States. There have been cases, one in particular, where a federally appointed judge felt the independence of the judiciary was compromised by the minimum sentence. He resigned and campaigned against minimum sentences at various bar conventions in the United States.
The trouble in the minds of the legislators and the public at large is, “Can we trust the judges?” That's a question that comes up from time to time on a number of things. If the judge is law-and-order, he'll perhaps lean to a tougher sentence. If he's more rehabilitative-minded, he'll go the other way. But we have great confidence, and should have, in our judges. As a citizen, I feel more comfortable with them having some jurisdiction on the severity or leniency of sentence.
Remember, if he doesn't follow the principles of sentencing, the court of appeal is there. My comments with respect to the Alberta Court of Appeal came about in part because I was a member of that court. Being retired, I have full constitutional rights of freedom of speech, and it is very tempting to comment on their decisions from time to time.
12:45 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
You can get in trouble commenting on courts, as I found out on the day I arrived in this House.
12:45 p.m.
C.C., Q.C, Puisne Judge of the Supreme Court of Canada, Retired, As an Individual
But age will take you out of that.
12:45 p.m.
Voices
Oh, oh!
12:45 p.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
One last thing then, would it be from your perspective consistent with Mr. Wilks motivation if...?
We already have section 718.2, which talks about other sentencing principles, including aggravating circumstances, which still leaves the judge to make the final determination. But what if we were to consider the idea that kidnapping somebody under the age of 16 would be presented as an aggravating circumstance within sentencing? Would that be preferable from your point of view to a hard-and-fast minimum?
