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.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I wonder if that has been considered and a ruling made. In my case, allegedly, it had been considered and a ruling made. I'm saying that had this been considered and a ruling made.... Because, again, if you look at the legislation it's a prescription of a mandatory minimum without exception, and now there's an amendment that says there is an exception. So I'm saying that is as contrary as what I was trying to do, in a certain sense, and mine was ruled out of order.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
In loco parentis is Latin for “in the place of the parent”, and it gives legal obligations as well as legal rights to a person if a court finds that person in loco parentis. This does not talk about in loco parentis, but it talks about a person having lawful care or charge of the person referred to in that paragraph, if they're not a parent or guardian. I think it's very clear what it says.
I'm not sure of the French, Madame Boivin, but I think with our instructions to Justice to ensure that it is identical, as Ms. Kerry-Lynne Findlay said, I think will be fine, and I think it should go ahead on that basis.
NDP
Craig Scott NDP Toronto—Danforth, ON
I have nothing much more to say, as I don't think we're going to get very far on this, other than to say that Mr. Jean's comment may well be correct. I think it probably is, but I'm not convinced that it maps onto the language of “lawful care or charge”, and Ms. Findlay's answer didn't convince me that there's no space between those two concepts. So I think we're unclear even on what those words mean, but we're not going to get very far if I say anything else.
NDP
Françoise Boivin NDP Gatineau, QC
Would you mind terribly if we took five minutes so I can talk to my people before we vote on your amendment?
Conservative
The Chair Conservative Dave MacKenzie
I need consent, if you wish to suspend for five minutes.
Okay, let's suspend for five minutes.
Conservative
Counsel, Criminal Law Policy Section, Department of Justice
Thank you very much.
During the break I had a little time to reflect and I just want to bring to the committee's attention a particular issue that I'm hoping will be helpful.
Of course, I will be verifying that the English and French do, in fact, mean the same thing. But my initial view that it does mean the same thing is based on the fact that this language already exists in the Criminal Code and has been judicially interpreted.
I'd like to draw the committee's attention to the child abduction provisions where that phrase is used throughout. That is why that particular phrase was chosen, because it does have meaning in both languages and has been interpreted in the context of the criminal law, which is why I have some understanding as to what it means despite the fact that I'm not a family lawyer.
I just wanted to point that out, that this isn't a phrase that was plucked out of nowhere. It exists and has been interpreted in a helpful manner right up to the highest court of Canada.
Thank you.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
I think that illustrates why it was a good idea to take a break. Thank you.
Madam Boivin.
NDP
Françoise Boivin NDP Gatineau, QC
That was one of the points raised about the wording. The wording is actually the same as in subsection 283(1). But the last paragraph does not provide for a minimum sentence whereas subsection 279(1.1) does. The intent is to reduce the scope and a lot of questions arise again. According to the logic behind the government's amendment, a lot of cases could apply in the same context, but they do not match the definition of those in those categories, a definition that has already been interpreted.
I will stop there, but I think we would be wise to dig a little deeper into the matter to see if all those cases really are covered by the wording. After all, we are talking about a new offence with a mandatory minimum sentence. If the government's argument is to reduce the scope of the mandatory minimum sentence, it must make sure to include those whom it wants to be part of the exceptions. We will never be able to tell because we will have not studied those concepts. That is the only thing I find regrettable in all this.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Madam Boivin.
Seeing no further intervenors, I will call the vote on amendment G-1.
Those in favour?
(Amendment agreed to: yeas 6; nays 5)
We now go to LIB-2.
Mr. Cotler, would you like to introduce it?
Liberal
Irwin Cotler Liberal Mount Royal, QC
Yes, Mr. Chairman. This amendment seeks to address what we in effect are here to denounce, the kidnapping of young persons, but by dealing with it in a more principled form in the sentencing and not by way of a mandatory minimum—in other words, by making age and vulnerability the sentencing factors.
This takes into account the concerns that have been raised about whether 14 or 16 is the appropriate age marker for the offence, as well as the issue of those captured by the offence perhaps unnecessarily—for which examples have been given before. It also acknowledges that age is not the only issue here, but that vulnerability could also cover attributes such as a physical or mental disability, which may make a kidnapping particularly heinous.
My main point here, Mr. Chairman, is that we should be able to trust the judges. We should have sentencing factors that allow for the appropriate exercise of discretion for principled sentencing purposes, factors that do not detract from the objective of denunciation—which the mandatory minimum seeks to do—but ones that not only reaffirm the approach to denunciation but allow for the proper exercise of judicial discretion in a more effective and principled fashion.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
We have some concerns as to whether this amendment is within the scope of the bill, in the sense that it seeks to amend subsection 279(1.2), whereas the bill is only dealing with subsection (1.1). But if it is found to be in order, I have a comment.
Conservative
The Chair Conservative Dave MacKenzie
I don't believe there is any problem with it in respect to the scope of the bill.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
In that case, having seen the government amendment pass, we are prepared to agree with this amendment, in that it gives further indication to the judiciary in sentencing.
As Mr. Cotler has aptly put it, perhaps the age and vulnerability of the victim would be factors in sentencing. Therefore, we're prepared to support it.
NDP
Françoise Boivin NDP Gatineau, QC
We also thought that it was beyond the scope. We learn more about it all the time. As I understand it, clauses that have nothing to do with the bill can be added, and that is fine. They will have to explain themselves at some stage.
That said, I do agree with the concept introduced by my colleague Mr. Cotler. But, for me, it brings up the same question that the Conservative amendment brings up. It seems that concepts are being introduced with no analysis. The committee is making a mistake in doing that. If we work that way, this committee will not be seen as serious any more. We are supposed to be justice's last line of defence.
I see no problem with a court considering the age and the vulnerability of a victim, but I wonder what vulnerability means, and so on. I always have some difficulty expressing an opinion on a bill without having had my questions answered. Even if it is sometimes an answer I do not like, at least I have an answer. Then it is up to me to decide whether I vote for a bill or against it.
Section 718 already contains all the concepts needed for sentencing, all the factors that the court has to consider. Concepts are being introduced a little lightly, but basically, I have no objection. It is just that I feel that no in-depth study of the concepts has been done. That is the only criticism I have of this amendment.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Just as when we dealt with citizen's arrest and self-defence, when the NDP members only brought forward suggestions on sentencing at the time we sat and deliberated on them, this is what's happening here today.
Sometimes the plain language of something means exactly what it's meant to mean. What we're saying to the judiciary is to take into account the age. I could imagine, if I were in that place, perhaps looking at a kidnapping differently if we were talking about a 15-year-old, or a 3-year-old.
I think we all know what “vulnerability” means. There may be, as Mr. Cotler has pointed out, a diminished capacity. One can think of many things that would make the victim more vulnerable in the eyes of the judiciary. That is why we're prepared to support this amendment. It's just another way of giving the judiciary a little more guidance when it comes to sentencing.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I'm curious about this particular section. Does this mean that the court will take into consideration the range between the minimum and the maximum? Or does it mean that the court can ignore the minimum mandatory penalty?
Counsel, Criminal Law Policy Section, Department of Justice
I would have to look at it more carefully. I heard you read it out, and I know you're placing it in subsection 279(1.2). Is that right? I would imagine that if both the mandatory minimum and the aggravating factor applied, then the judge would be asked by Parliament to start at the mandatory minimum and then factor in the aggravating factors after that.
That's the way that mandatory minimum penalties work. They are meant to be a floor, the starting point at which a judge calculates the appropriate sentence.