moved:
That Bill C-268 be amended by deleting Clause 2.
Mr. Speaker, this bill clearly sets out at the beginning that it would establish minimum sentences, but it also says that it would establish minimum sentences for trafficking of children. The first thing to note when reading this bill is that there is no mention of trafficking of children in the proposed wording. There is no mention of sexual acts, except as an aggravating factor in one case.
Clause 2 states:
Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person..., or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence—
The important element in this definition is the intent: “for the purpose of exploiting them or facilitating their exploitation”. The word “or” is interspersed throughout the rest of the text. That means the offence can be committed in a number of ways. It can be committed by transporting, recruiting, transferring or receiving. However, the intent to exploit must always be present.
What is exploitation? I think we would all agree that exploitation is a very vague term that could cover a variety of criminal behaviours. That is probably true even if we are in favour of introducing more and more minimum sentences in our laws, as the United States has done. But even if we are in favour of minimum sentences, they must nevertheless apply to a specific offence and not to an offence that requires an assessment of the type of exploitation involved. What was the extent of the exploitation? What were the consequences for the victim? Over what period of time did the exploitation take place? Was it economic or for another purpose? What was the context? Was it in a family context? In some countries, families make the beautiful carpets that we will later purchase. But the details that we as tourists admire when we purchase the carpets are supplied by the eyes and the small fingers of the children.
A judge must determine the seriousness of the exploitation. We must not set a minimum of five years. Judicial discretion must not be completely eliminated.
While exploitation is not defined in the proposed clause, the clause is placed in a certain order in the Criminal Code. It does not appear just anywhere, but at 279.011, which is between 279.01 and 279.03 because of the way numbering works with decimals. It is not necessarily an obvious system, by the way. Most people would think that .011 comes after .04. But that is not how it works with decimals.
Section 279.04 of the Criminal Code says that:
For the purposes of sections 279.01 to 279.03 [including 279.011], a person exploits another person if they
(a) cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service;
I just want to mention something important here, which is that there has to be some form of intimidation for exploitation to exist. Once again, the definition is very broad, and it focuses on economic exploitation, not necessarily of a sexual nature. I agree that if young women are kidnapped and forced into prostitution, that is a form of exploitation. I recognize the expression “sexual services”, which the member for Ahuntsic dislikes. At first glance, the definition is very broad indeed, and that is what many members thought. It covers all kinds of exploitation.
I am not saying that I am against all minimums. I think that there should be minimums for first- or second-degree murder. At the other end of the spectrum, I agree with minimums for impaired driving, particularly for reoffenders, where the individual should be informed of the possibility of a minimum sentence for a second offence. But I think that everyone will agree there is no place for minimums in cases where the judge has to assess completely unique situations.
I read the arguments of the member who is proposing this measure. It is clear that she is appalled by some sentences that are handed down. I do not believe that any of these sentences have been appealed. There are still shocking sentences among the tens of thousands of sentences handed down in Canada every day. Some are perhaps unjustified, but there is recourse through the appeal process. Before we change a law to make it stricter, we must first go through this process and see what happens in the courts of appeal.
The terrible thing about applying a minimum is that it is very often based on emotions. It is very honourable that the member cares about this cause, and I do not fault her for that. However, it is clear that her proposal is based on emotions. When this happens, a person is scandalized by a sentence that seems too light in a serious case. So they say that these serious cases should carry certain sentences. I think that in most cases, the member believes that the minimums would be justified.
Rationally, a minimum should not be set for the worst cases. A minimum should apply to the least serious cases. We need to give the judges some latitude. The least serious cases should carry a minimum sentence, and the most serious cases should carry a maximum.
We were harshly criticized for the position we took. Look at the section we had to examine. After giving such a broad definition of the offence, section 279.01 states:
(a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for not more than fourteen years and not less than five years in any other case.
That is what we voted on.
Clause a) has been changed in the meantime, but what was remarkable about it was that there was a minimum sentence for the least serious offences but that there was no minimum for offences accompanied by aggravated assault, sexual assault or injury causing death.
To avoid a minimum sentence, an offender had to add something to the commission of the crime. Offenders are apparently concerned about and familiar with minimum sentences. That was the bill that was introduced. I think everyone knows it did not make any sense. In any case, it has been corrected. How was it corrected? They added another year, as if no one had ever thought of it.
This shows that the bill was hastily written and not even reread by the people introducing it or that this issue is so emotional for them that they could not even think straight. Their emotion led them to want to ensure that the worst cases would be subject to a minimum sentence but they forgot that less serious cases would be punished in the same way. That is what is wrong with minimum sentences.
There is another reason. I will give the hon. member the benefit of the doubt. I suspect that people in her entourage—we saw what some of her colleagues did in Quebec—wanted to have minimum sentences not because they thought it would reduce the crime rate but because it is popular and would bring them votes. I am perfectly aware of that.
It takes more courage to require rigour and precision in the drafting of legislation than it does to let ourselves be swept away by feelings that are largely shared by the public. How did they defend their bill? By absolutely frightful photographs of a poor little girl being abducted by an old man who wanted to exploit her. They said the Bloc was voting against protecting children.
Read this bill and show it to someone who is impartial and objective. Ask what it covers. Maybe he will say it includes the trafficking of children, but it also covers a lot of other things. Exploitation is defined in the act, two clauses further along. It is defined as causing someone to provide or offer to provide labour or a service by conduct that could reasonably be expected to cause fear.
Most people would need to have it explained to them that the hon. member wanted to say trafficking in children.
What the House needs to understand about the argument presented to us is that the bill the hon. member has tabled covers not only trafficking in children and sexual exploitation but at lot more as well. It is because of this “a lot more” that it should be voted down.
I would like to remind the House in conclusion of the Supreme Court’s decision in the Oaks case where it referred to the criteria that should apply before our liberties could be infringed upon. It said that our laws must be drafted with care.
Is it really possible to say that this bill was drafted in such a way that it targets solely what was intended? I think the answer is clear. Rather than taking a gun to fire—