Justice Committee on May 31st, 2012

[Françoise Boivin, NDP, Gatineau, QC]

That is not said in the French. That's why I'm saying that, in reading the French.... If you read the English, I agree with you. In English it's a bit wider in scope; in French, not at all. There's a very specific definition for

“une personne ayant la garde ou la charge légale”. In French, the term “charge légale” means that…

you either have a court order or are definitely the legal guardian. It's almost the same thing.

So I would verify that. That's why I say that before we introduce something that is brand new and has not been reviewed by any witnesses, we still have time—it's not as if time is of the essence here—to be....

We have the time to take a deep breath and make sure that we are not making a mistake. I want my colleague to understand that we are not opposed to the idea of making the exception. We are opposed to the minimum sentence, so if it is being removed for some groups of people…But we do not want to create a situation whereby another injustice is committed.

[The Chair, Conservative, Dave MacKenzie]

Maybe we could have another comment from the Justice official here.

[Nathalie Levman]

We do, in fact, know what that phrase means from a legal perspective in the English. I believe it would cover anyone with legal or de facto custody of a child. Wherever somebody with legal custody, for example, transfers that custody—even by saying, you take care of my child for this period of time—then the exemption would apply to that person. Cases in which it wouldn't apply are those in which that custody hasn't been transferred.

[The Chair, Conservative, Dave MacKenzie]

Madam Findlay, go ahead.

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

Thank you.

I do not pretend to be an expert in the French language, but we certainly can make sure and verify that the French has the same meaning as the English. I can only go on the English version.

Just as the official has said, when you're talking about “lawful care or charge”, you're talking about someone who may have de facto custody, who may be in that position, that loco parentis, that parental-type position with the child, but not necessarily a legal guardian.

You mentioned Mr. Wilks as the proposer of the bill. I think it's important here to note that what we're trying to do is actually narrow the application of the mandatory minimum, not expand it. We want a narrower scope to be applied.

As someone who for many years dealt with family law cases and the volatility of those situations with children, we don't want a criminal process superimposed on a family or divorce situation unnecessarily, or where it doesn't fit and wouldn't be suitable. Of course there are many people in the best interests of a child who along the way can end up in loco parentis. It may in fact be an aunt, uncle, godparent, or grandparent, but those are also people who may overstep their bounds, who are not in lawful care or custody; then that's a different situation.

I would suggest that the sponsor's intention has been clear from the beginning of this parliamentary process, and our amendment is in line with those intentions.

Mr. Wilks testified before this committee with regard to the abduction of Kienan Hebert. The abduction, which happened to be, unfortunately, in his riding, was by a stranger last year. It instigated his efforts to ensure the imposition of a severe penalty in cases involving stranger child abduction.

Also, at second reading debate in the House, he clearly stated that his intention in introducing the bill was to have the mandatory prison sentence apply only in cases where a stranger commits the crime of kidnapping a child under 16.

I have the transcript from Monday, November 28, 2011, when Mr. Wilks spoke to his bill. He said:

In closing, I have received questions regarding the intention of the bill and whether it focuses on the kidnapping of children by strangers. My intention is to have the mandatory prison sentence apply only in cases where a stranger commits the crime of kidnapping a child under the age of 16. I am open to considering an amendment to my bill that would clarify that intention.

In response to whether this is in keeping with his intention, I say that it is and that he's been very clear about that. Our amendment is intended, as I said, to narrow the scope and to make it clear that we are talking about a young person being kidnapped by someone where there is no relationship. It is a stranger to the child.

Thanks.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

I would confirm for Madam Boivin that I just talked to Mr. Wilks, and he is 100% in favour of the government's amendment.

I do have an issue and a question. Madam Findlay has spoken about loco parentis, which of course is a decision by the court to find a person standing in the place of a parent.

For the record, I just want to make sure that this is not something that the court can find out later. In my mind, it could be a stepfather or stepmother who takes the child, and afterwards the court could determine that the person actually stood in the place of a parent during a period of time and was trying to protect that child. I don't think the idea of this exemption is to allow that person to be exempted from the finding of guilt and be exempted from that as a result of them being in the place of a parent.

I do have one question for you, Ms. Levman. I'm just wondering about something relating to the offence itself. For instance, we've had some number of cases where somebody will kidnap a child, raise that child to be their own, and then, later on, when the child is 14 or 15, we'll find out where that child is and that person will be charged.

Under these circumstances, and with this exemption, I just want to make it clear on the record that at the time of the offence, if that person were not in place as a parent or guardian, and later became a guardian—obviously a court could do that at a later date, in another jurisdiction, without full knowledge—would that person still be found guilty of the offence and not be exempted if they were later found to be a parent or guardian?

[Nathalie Levman]

Just to be clear, this isn't about guilt; this is about application of the MMP.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

An exemption, yes; I understand that.

[Nathalie Levman]

Yes.

That sounds like a complicated fact scenario. I think the issue is that at the time the offence was committed, was the person a parent or a person standing in place of the parent? That can be determined on the basis of law—as your colleague has pointed out, by a legal paper—or it can be on the basis of having just de facto custody.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

At the time of the offence.

[Nathalie Levman]

At the time of the offence.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

That's the question. I just wanted to clarify it for the record.

Finally, there was a case by the House of Lords that I was involved with, of a Canadian child who was abducted—Anne Steinhouse out of Fort McMurray. I can get that reference for you. It was back in 1997, I believe. The House of Lords went over it specifically and over the problems with abductions and kidnappings, even in other jurisdictions, with the rule of law and democracy. They went through a full acknowledgement of the loco parentis, etc.

[Nathalie Levman]

That may be helpful in these cases, yes.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

I have just a couple of very quick questions.

I generally share the concerns of Madam Boivin that we are underinformed about this amendment, even if it instinctively feels like it's going to narrow things in a good way. There is a lot of emphasis on the “parent, guardian or person having the lawful care or charge” or custodial rights, but do we want, for example, a parent who has no custodial rights—and would this person be included? According to the current language, that person would be included.

Would you say this is correct?

[Nathalie Levman]

If you're a parent, you are excluded from the mandatory minimum penalty, or if you are a person in loco parentis.

[Craig Scott, NDP, Toronto—Danforth, ON]

Right. So there can be a tension within the three exceptions here in the sense that you can....

In a custody dispute, where the custody hasn't been decided, or after the dispute, where there is joint custody...but there are situations where parents have no custodial rights, correct?

[Nathalie Levman]

There are a few, but there is some dispute in the case law about when custodial rights are extinguished, so I can't give you a clear answer.

I suppose there could be some rare cases where custodial rights are extinguished. I would imagine that a family court would have very good reason for doing that, meaning there was some risk of harm that the parent posed.

[Craig Scott, NDP, Toronto—Danforth, ON]

Exactly. But by this wording, that person whose custodial rights have been extinguished would not be caught by the minimum mandatory penalty because they're still a parent.

[Nathalie Levman]

Correct; by the way it's drafted, yes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Right.

So this is not a matter of going after a really narrow, remote situation. It's a matter of saying that I'm just worried that we haven't fully thought through what the exceptions could be.

For example, grandparents are not strangers, right? From the beginning, Mr. Wilks was using the words “not a stranger”. His word was “stranger”. The list we have here, of “parent, guardian or person having the lawful care or charge”, is not the inverse of “stranger”. It's an under-inclusive list with respect to what he said he didn't want to have happen.

I'm just a bit worried that we're maybe doing this a bit too quickly and that we could benefit from another session where we either talk it through a bit more, after having reflected a bit, including with expert assistance, or think through whether we need a little bit more expertise.

I'm not trying to be obstructionist. I'm just a bit worried that I personally have not thought this through enough, having seen it just so recently. It doesn't seem to map onto the stranger idea.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madam Findlay.

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

In the scenario you're talking about—in the rare scenario, but it does happen—where a parent's custody rights are extinguished, we do have section 282 of the code, “Abduction in contravention of custody order”.

It is, again, rare, but it certainly has happened where a parent who either has had their custody extinguished or who is restricted to, say, only visitation or access has gone contrary to that custody order and taken a child and refused to return them.

There are sections that will deal with that already in the code. If it's not something that can be dealt with at a family court or at a similar level, the code can deal with that, in my view. In our scenario here, when we talk about “lawful care or charge”, that is fairly broad language, and as I said....

Actually, I would like the official's opinion on this. Do you feel you can make a comment as to whether the wording in the French version has the same intent as the wording in the English version? Are you able to speak to that? Does it have the same legal effect, in other words?

[Nathalie Levman]

Only generally.... I do speak some French, but I'm not a francophone, nor am I a civil lawyer. All I can say is that when we sit in a drafting room we try to ensure that the English and the French mean the same thing.

Now, we have case law that has elucidated points where the intention has not come to pass and there have been differences. That requires rectification. My understanding in this particular case was that the French meant the same as the English. I would have to consult with an expert on civil law to confirm that.