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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 amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

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

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

I call to order meeting number 40 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Wednesday, February 29, 2012, today we are considering Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), clause by clause.

It is quite a large bill—there's one clause.

I think, Mr. Cotler, you have an amendment, LIB-1.

11:10 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Yes, Mr. Chairman.

The amendment is that Bill C-299, in clause 1, be amended by replacing lines 10 to 12 on page 1 with the following:

imprisonment for life; and

Mr. Chairman, if I may, let me just provide an explanatory context for this. This amendment effectively removes a mandatory minimum penalty from the proposed legislation. I don't want to use the occasion to repeat all that I've said before and will say prospectively on other occasions about my critiques of mandatory minimums—they're well known. Much of what I've been saying was also echoed in witness testimony before this committee, including succinctly by our witness in the last meeting.

I just want to address two points in relation to this amendment. The first is the following—which I want to state for the record as a result of exchanges that sometimes take place in the House. Like all members here, we are all concerned about the kidnapping of young persons. Indeed, when I was Minister of Justice, the first piece of legislation I introduced on behalf of the government at the time was Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, which became law in July 2005, and which, among other things, enhanced the Criminal Code with respect to sexual offences against children, failure to provide the necessities of life, and abandonment of children. It also made child abuse in the commission of an offence an aggravating factor for sentencing purposes.

I make reference to this because I accept and promote the overarching objective with respect to this legislation, the protection of young children from criminal offences. My objection is only on the issue of the mandatory minimum. If I may state for the record why the issue of children is so important to me, as I've stated before, when my daughter was 15 years of age, she came to me one day and said, “Daddy, if you want to know what the real test of human rights is, then always ask yourself, at any time, in any situation, in any part of the world, is it good for children? Is what is happening good for children?”

So the question of protecting children was a priority for me as a minister, and that legislation to which I just referred became known among us in the government as “Gila's Law”, because at the time it was very much inspired by my daughter Gila. This is an issue that I take very seriously, as do all members of this committee.

I want to draw the attention of colleagues to the language of my second amendment, LIB-2, because it should be read in concert with the first.

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Cotler, I think we can only deal with LIB-1.

11:10 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

It's only by way of background.

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

But I don't think we should deal with that.

11:10 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Okay.

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Cotler, Bill C-299 amends the Criminal Code to impose a mandatory minimum sentence on anyone convicted of kidnapping a person under 16 years of age. This amendment proposes to delete the mandatory minimum sentence. As House of Commons Procedure and Practice, second edition, states on page 766: An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, the deletion of the key element is contrary to the principle of Bill C-299 and is therefore inadmissible.

11:10 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

Can we challenge you on that one?

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

You can challenge the chair.

11:10 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

We'll challenge the chair.

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Shall the ruling of the chair be sustained?

(Ruling of the chair sustained: yeas 6; nays 5)

11:10 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Therefore, the amendment will not be considered. Here I should say that I erred in allowing the debate to carry on about LIB-1.

Madam Findlay, are you introducing G-1?

11:10 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Yes, I am.

We move 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

Can I speak to it?

11:15 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Yes, you can.

11:15 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

In our view, the bill rightly seeks to ensure that cases involving kidnapping of children by strangers are treated with the severity they deserve. This goal is laudable and merits support. We know that although stranger child abduction happens fairly rarely—thank goodness—the consequences are dire, as abducted children are often sexually assaulted or murdered.

Offenders must be punished severely for such crimes, in our view. However, there is a concern that the way it's presently worded the proposed mandatory minimum penalty could apply to a parent or someone in loco parentis. With respect to that person, there might be an issue of preventing that child from seeing the other parent in the context of a custody or access dispute. We know that parents involved in such disputes have been charged with kidnapping of their own child.

Of course, parental child abduction is a serious issue, as well, for all involved, but we don't believe this bill's intention is to impose severe penalties in these types of situations. The Criminal Code currently criminalizes kidnapping of children through a number of different offences: subsections 279(1), kidnapping, and 279(2), forcible confinement; and sections 280 to 283, which contain four child-specific abduction offences.

Maximum penalties for these offences range from five years to life imprisonment, but only the kidnapping offence, in subsection 279(1), imposes mandatory minimum penalties in certain circumstances, for example, where a firearm is used or where organized crime is involved. Although sections 282 and 283 deal exclusively with parental child abduction, sections 279 and 280 can apply to cases involving both stranger and parental child abductions.

Therefore, Bill C-299's proposed mandatory minimum penalty could, as presently written, apply to parents. To prevent this unintended result, the proposed friendly amendment—which Mr. Wilks has also stated he would accept—would exempt parents and persons standing in place of parents from the application of the proposed mandatory minimum penalty.

Whether or not this amendment is supported, I certainly hope the bill will receive the support it deserves and that we all move together to seek sanctions on those who would seek to harm our children.

11:15 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Madam Boivin.

11:15 a.m.

NDP

Françoise Boivin NDP 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 Conservative Dave MacKenzie

Would you come to the table, please?

11:20 a.m.

NDP

Françoise Boivin NDP 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 Conservative 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 NDP 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 Conservative Dave MacKenzie

Madam Findlay.

11:30 a.m.

Conservative

Kerry-Lynne Findlay Conservative 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—