House of Commons Hansard #151 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was criminals.
The House proceeded to the consideration of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), as reported (with amendments) from the committee.
The Speaker Conservative Andrew Scheer
There are two motions in amendment standing on the notice paper for the report stage of Bill C-299.
Motion Nos. 1 and 2 will be grouped for debate and voting patterns for the motions are available at the table.
I shall now propose Motions Nos. 1 and 2 to the House.
Irwin Cotler Liberal Mount Royal, QC
moved:
Motions Nos. 1 and 2
Motions No. 1
That Bill C-299, in Clause 1, be amended by replacing lines 11 to 15 on page 1 with the following:
“who commits the offence is
(i) a parent, guardian or person having the lawful care or charge of the person referred to in paragraph (1)(a), (b) or (c), or
(ii) a person who, in the opinion of the court, occupies a position in relation to the person referred to in paragraph (1)(a), (b) or (c) that is substantially similar to the position occupied by a person referred to in subparagraph (i),
to a minimum punishment of imprisonment for a term of five years; and”
Motions No. 2
That Bill C-299, in Clause 1, be amended by replacing line 14 on page 1 with the following:
“paragraph, other than a parent who has been deprived of all parental rights in respect of the person referred to in that paragraph pursuant to a court order, to a minimum punishment of”
Irwin Cotler Liberal Mount Royal, QC
Mr. Speaker, I am pleased to rise in the matter of Bill C-299, a bill that would provide a mandatory minimum sentence for the kidnapping of a minor.
Like every member of this place, I am truly saddened to hear news of kidnappings and families torn apart by such abhorrent acts. Indeed, my own family has been affected in this regard, so I know the pain that families experience.
The kidnapping of a child, simply put, is the most reprehensible of crimes.
Accordingly, legislators must enact strong laws that would provide courts the tools to impose severe punishment on anyone found guilty of such an offence. As parliamentarians, we must do everything we can to prevent the kidnapping of children. I know this is a goal shared by all members of the House.
The difficulty is that sometimes a piece of legislation that purports to be tough and effective and principled on crime is in effect ineffectual or counterproductive and ends up being less than principled.
Regrettably, Bill C-299 as it is before us, however well-intentioned, is a flawed piece of legislation.
I will organize my remarks around two themes. First, I will discuss my amendments as they address what I perceive as the biggest defect of this bill; namely, that it simply would not do what the member himself intended from this legislation. Second, I will then move to discuss more generic critiques of this form of legislation.
When the member for Kootenay—Columbia discussed his bill in the House nearly a year ago, he emphasized that it was intended to apply only in cases of kidnapping by strangers. However, for reasons that remain unclear, that intent was not reflected in the bill he put forward at the time. The bill, as introduced, contained a mandatory minimum for kidnapping of minors without any sort of exemption or exclusionary clause. Indeed, the sponsor of the bill himself acknowledged that shortcoming at second reading.
However, it was not until the final committee meeting of our Standing Committee on Justice on this subject that the problem was addressed with an amendment from the government. Regrettably, this last-minute amendment left committee members with no opportunity to address the amendment and to give the new language the thorough examination it required and warranted at the committee stage.
As it stands now, Bill C-299 would exempt from the mandatory minimum any offender who is “a parent, guardian or person having the lawful care or charge” of the victim. This is certainly an improvement over the original bill, as we all at committee seemed to agree that the imposition of such a mandatory minimum during a custody dispute, for example, would be excessive.
However, the present wording of “a parent, guardian or person having the lawful care or charge” nonetheless gives rise to a number of questions.
For example, who precisely does the term “parent” include? Would it include biological parents who no longer have custody of the child? What about sperm donors who, in Ontario, for example, can be listed as a third parent on a birth certificate? More importantly, what does this new wording exclude?
There are, undoubtedly, many people in a child's life who are not strangers but who a court might not consider to be in a position of lawful care or charge. There are grandparents, for example, or other relatives who have played extremely important roles in the child's life. Should an aunt or uncle who removes the child from what they consider to be an abusive household be subject to a five-year mandatory sentence? What about a parent's common law spouse who has been living with the child for many years?
Regrettably, by introducing its amendment at the last minute in committee, the government deprived the committee of the chance to examine these pertinent issues in detail. At clause by clause consideration of the bill, the technical witness from the Department of Justice, while very helpful and responsive, was only able to speak to the criminal law aspects of the bill.
However, with respect to the specific change, members of the committee sought advice on the family law aspects of the bill to explain how the terms “parent” or “guardian” and “lawful care” are likely to be interpreted by the courts. Yet, the Conservatives on the committee refused to call such a witness or put our proceedings on hold to contemplate the seriousness of this proposed change, something that the committee should have been entitled to do in the interest of the legislation itself and its ultimate purpose.
Indeed, the problem becomes clearer by looking at the rest of the Criminal Code. For example, section 215, which outlines the duty of persons to provide the necessities of life, speaks of this obligation applying to “a parent, foster parent, guardian or head of a family”.
This raises important concerns. Should Bill C-299 mention foster parents in the exception? What does the section 215 phrase “head of a family” include that the phrase “person having the lawful care or charge” does not? For example, section 43, relating to the punishment of children, speaks of a “parent or person standing in the place of a parent”. This phrase also contemplates that it may not only be a parent, either in the biological or custodial sense, who is afforded certain legal protection, but it may include those we would otherwise equate with the generic term “parent”.
As one can appreciate, by short-circuiting debate and thereby precluding analysis, as we did at committee, we run the risk of enacting legislation that has unintended consequences. I understand that certain members may well wonder if it is not perhaps equally problematic that my prospective amendments would not get a thorough study here at report stage. I acknowledge that necessary defect in the process and I would gladly support reverting to a committee of the whole if the government would so wish. Instead, I will hope that these amendments would be adopted and the Senate would be afforded due consideration of this matter.
Turning to the amendments themselves, the first amendment is relatively simple.
Simply put, the exemption to the mandatory minimum in the proposed legislation currently applies to a parent, guardian or person having the lawful care or charge of the child. My motion would amend this to include anyone in a “substantially similar” position.
This effectively would preserve the Conservatives' stated intent of imposing a mandatory minimum sentence on strangers who kidnap children, since the position of a stranger vis-à-vis the child could never be considered substantially similar to that of a lawful caregiver. At the same time, this amendment sufficiently broadens the exemption such that the mandatory minimum would not apply unintentionally to friends, teachers, family members and the like. Consequently, for example, an aunt who has her niece over for dinner without obtaining parental consent would not potentially be subjected to a five-year prison term. Similarly this would protect, for example, a step-parent who has raised and lived with a child for years but is neither his or her biological parent nor someone with custody, formally speaking.
In a word, this amendment seeks to address the problem that some people who should be exempted may not benefit from the exemption. Indeed, the step-parent example is a case in study as this person is surely not a stranger to the child.
The second amendment I am offering is potentially even easier to understand and it would also strengthen the government's own legislation. My whole purpose in these amendments, as it is often in committee, is to help to improve the legislation as so proposed by the mover. Even if I do not agree with the principle of the legislation that is going to be enacted, let us at least enact legislation that would be more principled and effective in this regard.
Members may recall that the exemption of the mandatory minimum sentence applies to “parents” without defining the term. Yet in certain cases, a biological parent could be a stranger to the child or equally someone we would not want to see benefit from the exclusion. I doubt, for instance, that the Parliamentary Secretary to the Minister of Justice, who put the original amendment forward at committee, would want someone who is the child's biological parent but who was stripped of custody for abuse, neglect and the like to be the beneficiary of such an exemption simply because the word “parent” as used in the bill did not clearly identify whether it was parents by filiation, by guardianship or both.
For this reason, I have suggested that a person deprived by a court order of all parental rights, that is custody and visitation, would now be excluded from the exemption.
I hope that the member for Kootenay—Columbia and others in his party will support these motions since the purpose of these motions is to bring the bill more in line with the sponsor's own stated objective. It is important to bear in mind that by exempting people known to the child from the mandatory five-year minimum sentence, we are not precluding them from receiving sentences of five years or more should a judge deem such a sentence appropriate.
Such is the purpose of judicial discretion. A judge may consider the specific facts of a case and, with the assistance of sentencing guidelines, impose an appropriate penalty. There is no evidence that Canadian judges have been imposing penalties for kidnapping that are unduly light.
The undue haste with which the amendment was passed at the justice committee has created this dual problem, which I have outlined. That is that some people will not benefit from the exemption who should, and that others whom I believe the government would want to receive a mandatory minimum sentence would not.
I will now turn my attention to the second theme, the broader concerns I have with this bill as a whole.
Mr. Speaker, I notice you are indicating that I should wind up but I thought I had 20 minutes for this debate.
The Acting Speaker Conservative Barry Devolin
Just to clarify, when a private member's bill comes forward for the first time, the mover of it has a 15-minute time slot, followed by 5 minutes of questions and answers. Subsequently, all time slots are 10 minutes, including the second hour and at report stage. In this case, the hon. member for Mount Royal has a 10-minute time slot, which has now expired.
Is the hon. member for Ottawa—Vanier rising on a point of order?
Mauril Bélanger Liberal Ottawa—Vanier, ON
Yes, Mr. Speaker. I believe the mover of a motion, which is what we have before us, has 15 minutes. The House is now dealing with a motion to amend. You may want to verify this but I believe the mover has 15 minutes.
The Acting Speaker Conservative Barry Devolin
I have confirmed that the member is correct, that at second or third reading the mover would have 15 minutes, but at report stage all speeches are 10 minutes, including for the person who has moved the amendment. Those are the Standing Orders.
I will give the hon. member for Mount Royal less than a minute to wrap up.
Irwin Cotler Liberal Mount Royal, QC
Mr. Speaker, my second point has to do with the fact that this legislation imposes a mandatory minimum for the kidnapping of minors. It should be noted that kidnapping is already an offence under the Criminal Code and at committee no witness suggested that judges give light sentences for kidnapping or that somehow the kidnapping of minors occurs precisely because it is not a specific offence in the code.
Indeed, to a greater extent, this bill seeks to criminalize those who are already criminals and seeks to do so by imposing a mandatory minimum, which, as all the evidence has shown, ends up being disproportionate, does not serve as a deterrent and impacts prejudicially on the most vulnerable in all societies. As all the evidence discloses, both here and abroad, this simply is an inappropriate way to deal with this issue or other issues of such matters.
Françoise Boivin NDP Gatineau, QC
Mr. Speaker, I am pleased to rise here today as the justice critic for the official opposition to speak to Bill C-299 and the amendments proposed by the hon. member for Mount Royal. These amendments are a last-minute attempt to make this bill a little better for Canada's criminal justice system.
When I was elected, I told the people of Gatineau that, especially when it comes to justice matters, as a member of the Barreau du Québec, I have always believed that justice should be a non-partisan issue. I have always believed that the Minister of Justice, the justice critics and all members of the Standing Committee on Justice and Human Rights must be able to rise above the fray. We are the guardians of our beautiful democracy and the separation of the legislative, executive and judicial powers.
The amendments proposed by my colleague from Mount Royal are a clear example of the fact that we are trying everything we can to correct the things in this bill that simply do not make sense. If we were to take the time needed to do a thorough, non-partisan examination, we could come up with a much better bill than Bill C-299, which is consistent with other government bills, whether they are introduced by cabinet members or backbenchers.
Here is another example of basing amendments on something as fundamental as the Criminal Code, which is the foundation of our entire criminal justice system. Everything has been codified, whether we are talking about offences against the person or against property, or any other kind of offence that can be committed. The Conservative government is using a piecemeal approach. It is chipping away at the Criminal Code bit by bit, claiming to do so for the benefit of victims. The Conservatives took one case that made headlines, that of young Kienan Hebert, and used that as the basis of this bill.
I can understand a member whose constituents react to a particular event. We are responsible people and we are supposed to be leaders in our communities. It seems to me that the answer to this kind of thing is not to pass a law to prevent it from happening again. First, because that would be an impossible promise to keep. Second, because that would prevent us from doing the smarter thing, which is check to see if the Criminal Code already contains provisions to ensure that the individual charged will be prosecuted to the full extent of the law and that the sentence will be between eight and 15 years in such cases, based on the jurisprudence.
In committee, the Conservative Party went to extraordinary lengths to give everyone the impression that Canada's criminal justice system does not cover such cases, and thank goodness the Conservatives are around to fix the world's problems. But the truth is that the Conservatives are introducing yet another minimum sentence. That is the main problem with Bill C-299. The Conservative government keeps saying that the NDP is soft on crime. But that has nothing to do with it. Even the courts are overturning—basically throwing out—bills this government introduced because they are just not good, because significant parts of Canadian law have been overlooked and the government has not done its work.
That is what the courts have been doing with the Conservatives' 2008 omnibus legislation, and our predictions will probably come true. I do not like to say, “I told you so”. That is not my goal in life. I would prefer that we do our job properly and that we concentrate on public protection and obeying the laws of this country.
Former Supreme Court Justice John Major appeared before the committee to talk about Bill C-299. For my colleagues who may not know him very well, I would like to point out that Justice Major is not considered to be left of centre. He was not viewed as a liberal judge, but rather as a fairly conservative judge. Justice Major had this to say about minimum sentences:
With a minimum sentence you're boxing in the judiciary, but you're also providing a motive for the kidnapper to perhaps act very viciously and do something to the child, so that he won't be identified. Then the minimum sentence becomes academic, because he doesn't think he's going to be caught.
I'm still a little concerned about a minimum sentence that's absolute. Cases are not all the same, as you know, and the minimum sentence may be inadequate in a number of circumstances of commercial kidnapping, but in other cases it may not be proper.
...experience shows that the severity of the crime seldom acts as a deterrent, because there's a philosophy that says the criminal doesn't believe he'll be caught.
It's interesting to look at the range of sentences for kidnapping in our judicial history where there's no minimum. The sentences, nonetheless, have been severe. By severe, I mean lengthy. The courts, to my knowledge, have always treated...kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years, so that the five years is not extreme. I think you'd have to look hard to find a case where a serious kidnapper was sentenced to less than that.
This is Justice Major's take on the issue and, the whole time the committee was working on this, I was wondering what message the legislator was trying to send.
When a person is brought before the courts on criminal charges, the judge takes into account sentences that have been handed down in other similar cases. A review is conducted, which is presented to the judge when the accused enters a plea for sentencing, and the usual sentence is between 10 and 15 years. However, all of a sudden, the brilliant legislator introduced a bill that sets the minimum sentence at five years. I do not have any difficulty believing that defence lawyers will tell the judge not to consider imposing sentences of 10 to 15 years any more. We are concerned about this. It is symptomatic of the problem: the government simply did not do its homework to see what would happen in similar cases so that it could say that the sentence for kidnapping is 10 to 15 years or even life in prison. The maximum is actually set out for this type of offence.
What did we work on in committee? We tried to find a minimum sentence. It does not make any sense. This was a typical provision of the Criminal Code that did not need to be amended in any way.
However, when we analyzed it in committee, we wondered who section 279.1 was talking about. It is unclear, and this shows that, if the government side had any intelligence at all, it would have tried to fix the contradictions between section 279 and the entire section of the Criminal Code that deals with kidnapping, human trafficking, hostage taking and abduction.
There is no way to amend Bill C-299 to make it into something that makes sense in the desired context, which the hon. member himself came to explain to the committee. This is absolutely not the result we would achieve if we were to pass Bill C-299.
This is therefore just another failure on the part of the government when it comes to justice.
The Conservative government is completely obsessed with its hatred of the judiciary, which it believes is just getting in the way. However, this is a very dangerous way of thinking in a democracy.
Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC
Mr. Speaker, thank you for allowing me to speak. I rise today in this House to discuss something that is very important to me and obviously to all Canadians, and that is the safety and protection of our children.
My colleague opposite, the member for Kootenay—Columbia, introduced a bill that would amend the Criminal Code with regard to the kidnapping of a young person. I understand why this member introduced such a bill, because I am a father of three. The stress that parents of kidnapped children experience is unimaginable. I think it is one of the most revolting crimes, and all Canadians are disgusted when they learn that a child has been kidnapped. A child's life is so fragile that it is important to do everything possible to protect and improve their safety. During times like these, we can see just how strong Canadian solidarity can be.
The questions we have to ask today are whether Bill C-299 will reduce the number of kidnappings in Canada. Will it improve public safety? Is this new bill relevant in the fight against crimes against a person? I am not convinced of that and I do not think that this bill will achieve the objective of reducing the number of kidnappings in Canada. That is why I will oppose this bill.
The purpose of Bill C-299 is to deter potential predators by imposing a minimum punishment of five years. It would include provisions for a mandatory minimum punishment of five years for offenders found guilty of kidnapping a young person under 16 years of age. Like all of the other kidnapping provisions in the Criminal Code, Bill C-299 would impose a maximum penalty of life imprisonment.
Yet, a maximum sentence of life in prison is already set out in the Criminal Code for this type of crime. The life sentence has also been imposed by the courts, including in British Columbia. The Conservatives and the hon. member for Kootenay—Columbia therefore feel that predators will be dissuaded by a minimum sentence of five years, rather than by the maximum sentence of life in prison that is already set out in the legislation. If a life sentence does not dissuade predators from kidnapping children, I do not believe that a minimum sentence of five years will be as effective or have any deterrent effect. In my opinion, the members opposite lack knowledge about criminology.
Once again, the Conservatives want to please their electoral base without any regard for the interests of Canadians or the reality of Canada's legal system. Minimum sentences are a judicial approach that even the most conservative and hardened American judges are starting to reject. They are concerned about the ineffectiveness of this approach and the burden it places on the prison system. During the debates on Bill C-10, their opinions in this regard appeared in the national papers. The Conservatives basically ignored these judges' experience.
With this bill, the Conservatives are once again trying to impose minimum sentences. They want to show the people of Canada that they are tough on crime, when the only effect this approach has is to place a heavier burden on the justice system. In addition, on several occasions, the Supreme Court has struck down the legislator's attempts to impose minimum sentences because such sentences went against the Canadian Charter of Rights and Freedoms. So, once again, the Conservatives are trying to impose such minimum sentences when they know full well that, in certain cases, these are unfortunately not the sentences that should be imposed. And I would just like to mention again that this will no doubt be challenged before the Supreme Court in the future.
The Conservatives are going to try to convince members of the House and Canadians that, since there is no minimum sentence, those who kidnap a child could be sentenced to six months in prison, for example. This is completely false. We must not fall into that trap. Canadians have the right to be well informed.
The NDP is tough on those who commit such crimes. We want to see maximum sentences imposed in these cases. However, we want to protect judicial discretion because we have faith in the existing judicial system.
If we look at sentences in kidnapping cases, we see that average sentences for this type of crime are around eight years in jail, which is quite a bit more than the five-year minimum that this bill would impose.
By introducing a mandatory minimum sentence, all the government is doing is tying judges' hands. This bill would not enable judges to take unique attenuating circumstances into account in certain cases.
It is difficult for lawmakers to write legislation that takes all of the possibilities into account, which is why judicial discretion is important. Judges must respect not only the letter of the law, but also the spirit. They must be able to interpret the law and hand down appropriate sentences that take into account the unique circumstances of each case.
We must have confidence in our legal system and in our judges, who typically make informed decisions that take into account both the law and legal precedent.
As I said, we have confidence in the justice system. That is why we will oppose this bill. We want to respect judicial discretion by opposing this five-year mandatory minimum sentence.
Current provisions allow judges to sentence those guilty of kidnapping to a maximum of life in prison. Judges have the freedom they need to hand down harsh sentences and ensure that dangerous offenders do as much time as they deserve. As I said, judges have typically sentenced offenders to more than eight years in prison. That is more than the five years this bill sets out.
This bill is problematic on two counts: the mandatory minimum sentence it recommends is shorter than what is typical in case law, and judicial discretion is being taken away for this type of crime.
Justice Major of the Supreme Court shares our opinion on this issue. He is concerned that the minimum sentence would be the rule. He said that no two cases are alike and that the minimum sentence would be inadequate in certain kidnapping cases. He wondered why this bill imposes a minimum sentence that is lighter than typical kidnapping sentences. He also pointed out that minimum sentences do not deter would-be criminals but would have serious consequences for other aspects of our legal system.
Bill C-299 is another clear example of the Conservatives' lack of understanding when it comes to justice issues. At first glance, this is an interesting approach, but upon closer scrutiny, it soon becomes clear that this bill does not really accomplish much of anything. The courts are much more severe on these issues than what this bill proposes. Most sentences are much longer than the minimum sentence set out in this bill.
As previously mentioned, a life sentence is often imposed. Do the Conservatives not realize that they are undermining the discretion of judges and the judicial system with this bill?
In budget 2012, the Conservatives slashed front-line forces by also imposing minimum sentences in several sections of the Criminal Code. Do they really believe that minimum jail sentences will make Canadians and Canadian families safer?
Instead of adopting punitive measures that have no deterrent effect, why does the government not invest in tools and resources for front-line police forces when a kidnapping takes place? Instead of focusing on punishment, I believe the Conservative should pay a lot more attention to prevention.
We are worried that the Conservatives are once again using a crime bill to try to score political points with victims and anyone who is sickened by this kind of offence. We are under the impression that this bill was introduced in order to please the extreme right wing of the Conservative base. Once again, the Conservatives are introducing a bill that presents a restrictive view of the problem. Minimum sentences, I repeat, are not the answer to kidnapping problems, and that is why we do not support this bill.
Mauril Bélanger Liberal Ottawa—Vanier, ON
Mr. Speaker, Bill C-299 suffers from many of the same flaws that, unfortunately, have been characteristic of the government's general approach to criminal justice. It legislates in response to a single incident rather than taking a more comprehensive outlook. It focuses on punishment after the fact rather than on the importance of the prevention of the crime to begin with. The bill relies on a mandatory minimum sentence rather than heeding the overwhelming evidence from jurisdictions around the world, including our own Department of Justice, that mandatory minimums are not only ineffective but also prejudicial.
At second reading my colleague from Mount Royal referred to numerous studies demonstrating the ineffectiveness of mandatory minimums in countries around the world, including the United States, New Zealand, South Africa and Canada. The research concludes that mandatory minimums do not prevent or reduce crime but result in more crime in and outside of prisons, that they prejudice already vulnerable offenders and in no way serve the objective of deterrence for which they are often advanced.
Accordingly, having regard to the evidence, we remain opposed to mandatory minimums on grounds of principle and policy, and we have sought to remove the mandatory minimum provisions from the bill at committee.
The committee heard from a former Supreme Court justice, the Hon. John Major, who said that even without a mandatory minimum in place, kidnappers in Canada have been dealt with severely by the courts on a consistent basis.
The committee also heard from Michael Spratt, a criminal lawyer from the Canadian Civil Liberties Association, who warned us—and my colleague knows this from personal experience as a lawyer and as minister of justice, with whom I had the pleasure of serving in Canada—that mandatory minimums do not remove discretion from the legal process. They simply transfer it from judges, who work in open court and publish decisions that are reviewable, to police officers and crown prosecutors whose decisions are neither reviewable, transparent nor public.
With respect to Bill C-299 then, if the prosecution were to deem a five-year penalty excessive in a particular case, it could decline to prosecute or could charge for a lesser offence or another offence such as abduction, and no recourse would be available to those who disagree. It would again undermine the very intention of the sponsor of the bill.
Clearly, the arguments against mandatory minimums are overriding. Regrettably, we are not surprised that our Conservative colleagues on the justice committee remain unconvinced, but we are surprised by the disturbing if not alarming justifications of mandatory minimums that some of them put forth.
The member for Brampton West, for example, argued that there was no distinction between incarceration and deterrence, saying that an individual in prison was necessarily specifically deterred from committing crimes. That suggests that a viable crime prevention strategy is to put as many people in jail for as long as possible. As the logic goes, if everyone were in prison then no one would be out committing crimes. Regrettably, this myopic approach is not only absurd but also ignores entirely the root causes of crime and the importance of rehabilitating offenders and the need for both prevention and deterrence.
Another alarming attempt to justify mandatory minimums came from the Conservative member for Scarborough Centre, who asked: “[H]ow do we protect society from judges who decide that the same offence should be applied to someone who lifts a chocolate bar and to someone who commits murder?“ Apart from the fact that guidelines and precedents exist to direct judges when determining appropriate punishment, and apart from the fact that no convicted murderer in Canada has ever received a chocolate bar calibre sentence, and apart from the fact that should such a sentence ever be handed down, the appeals process would undoubtedly correct the problem, the member's comments demonstrate a lack of understanding of the judicial process.
The committee heard a good deal of evidence that limiting judicial discretion is an ineffective way of fighting crime. It heard no evidence whatsoever that Canadian judges have been guilty of the kind of dereliction of duty the member describes. Indeed, Justice Major urged committee members to have confidence in our judges and to value judicial independence. At the very least, we would urge all members to respect our judiciary and to value the importance of having evidence before impugning the judiciary's common sense.
In that regard, the evidence is squarely against mandatory minimums. Yet those of us who affirm the facts know what we can anticipate from those who support this discredited approach. Indeed, we will be subject to accusations that we care more about criminals than about victims, comments that regrettably resurfaced in last week's debate on Bill C-37.
I trust that there will be no demagogic accusations in this debate. We all want the kidnapping of children to stop. The question is how to achieve that goal. Do we address, to the extent possible, the underlying causes of crime, programs for the prevention of crime, providing police with the tools they need to keep people safe and making every effort to rehabilitate the criminals in order to reduce the likelihood that they will re-offend? The answer is a resounding yes.
Imposing mandatory minimum sentences that we know do not work, that limit judicial discretion in unusual or unanticipated cases and that represent an approach that compounds rather than addresses the initial injustice are neither effective deterrents nor do they serve the purposes of justice.
Let us look at the irony here for a second. Simply put, by including an exemption in the bill, the government is implicitly acknowledging in a small way the need for the judicial discretion at sentencing. The motion before us seeks to improve the clarity of that exemption by giving judges more flexibility to deal with unusual cases.
The first amendment proposed would exempt from the mandatory five-year minimum anyone substantially similar to a parent, guardian or person having lawful care or charge of the child.
The second amendment would exclude from the exemption anyone deprived by a court of all parental rights.
Ideally, of course, the mandatory minimum provision would be stricken as well, but failing that, we offer these amendments as the next best thing. We hope the House will signal its desire for these changes and that the Senate will report back an improved version of the bill.
We trust that members on the government side will carefully study the critiques that have been made of mandatory minimums and will heed overwhelming evidence that they simply do not work at best and are prejudicial at worst.
While it is our sincere hope that this is the last bill with a mandatory minimum provision that will come before this House and that the serious shortcoming is not likely to be fixed at report stage, I do hope that the other shortcomings of the bill may, nonetheless, be ameliorated somewhat to our amendment which otherwise would support the intention of the mover himself.
Christine Moore NDP Abitibi—Témiscamingue, QC
Mr. Speaker, I am pleased to speak to Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), introduced by the member for Kootenay—Columbia.
We are all outraged and concerned when we hear that a child or young person has been kidnapped, or is the victim of any kind of crime. In the past, we have all supported harsher sentences for sexual assault.
I would like to point out that this bill amends the Criminal Code. As we all know, the Criminal Code contains sections dealing with all manner of crimes, sentences, penalties and procedures. This bill amends subsection 279(1) of the Criminal Code, which deals with kidnapping, including the transport, confinement, or imprisonment of a person without their consent.
The Criminal Code provides for different sentences and penalties depending on the type of kidnapping and the circumstances.
Paragraph 279(1.1)(a) provides for a minimum sentence of five years in the case of a first offence, or seven years in the case of a subsequent offence, if a restricted or prohibited firearm is used in the commission of the offence, or if a firearm is used and the offence is committed for the benefit of a criminal organization.
Paragraph 279(1.1)(a)(i) sets out a minimum sentence of four years in any other case where a firearm is used in the commission of the offence.
Finally, under paragraph 279.(1.1)(b), there is no mandatory minimum in any other case.
In all cases, the maximum sentence is life imprisonment, which is the most severe punishment in Canada. There is no harsher sentence. At present, judges can impose the harshest sentence on the perpetrators of such crimes, if warranted by the circumstances.
The bill would add, under subsection 279(1), a specific provision regarding kidnapping of a young person. It provides for a minimum punishment of five years for the kidnapping of a young person under 16 years of age.
The committee that studied this bill suggested adding to this provision that there would be no minimum penalty if the individual is the father, mother or legal guardian. We can obviously assume that this would include any person acting in that capacity. For example, we can assume that a judge could interpret that grandparents who committed this offence because they thought that the child's safety was at risk could be assessed in light of this amendment.
The idea behind this bill is to keep our children safe and to ensure that the guilty are punished. I listened to the debates and some concerns about the provisions of this bill. We must ensure that Bill C-299 will make it possible to achieve the desired objective.
In the cases we are talking about today, the Criminal Code already provides for a maximum penalty of life imprisonment. As a result, in kidnapping cases, the courts have the latitude to imprison someone for life if they deem it appropriate. This is rarely done, but the possibility is there. It is the same thing in cases of kidnapping aggravated by sexual assault or murder: judges have the latitude they need to imprison people for life and to declare them dangerous offenders. They have all the latitude they need to ensure that criminals receive the punishment they deserve, which may be life imprisonment.
I would like to point out that in reality, there are few cases of straight kidnapping and that other offences are usually added to the charges. The other elements are always aggravating factors that judges take into account to make a ruling and decide on the punishment.
Jurisprudence varies regarding punishments, but in general, the penalties imposed in kidnapping cases are rarely shorter than eight years. As I said earlier, in some cases, the maximum penalty is possible.
Obviously, not having a minimum sentence for kidnapping of minors does not mean the justice system is lenient. Currently, sentences are harsher than the minimum sentence set out in this bill.
Furthermore, section 718.2 of the Criminal Code already states that when a minor—a person under the age of 18—is the victim of a crime, that is to be considered an aggravating circumstance. The Criminal Code already recognizes that crimes against minors are different. In light of these provisions, I truly think that the Criminal Code offers enough latitude to punish kidnappers of children harshly.
A review of average sentences imposed in such cases shows that they are typically longer than eight years, certainly longer than the five years in this bill. In general, whether the victim is a child or an adult, a sentence of 12 to 14 years or more is not unusual, particularly if the crime was premeditated or if there was a ransom demand or some other aggravating factor.
In none of the very serious and appalling cases that spring to mind when we are talking about kidnapping of children would the five-year minimum sentence contemplated in this bill ever be applied because sentences are typically much longer anyway.
When my colleague from Kootenay—Columbia says that “Child kidnappers are characteristically habitual offenders and carry out their assaults in a highly stereotypical modus operandi,” he is talking about criminals for whom a five-year minimum sentence would not change anything because they would typically be sentenced to much more than five years in jail. For example, premeditation is an aggravating factor that gives the judge the latitude to impose a harsher sentence.
As I said before, this bill would change nothing when it comes to sickening kidnappings that involve rape or murder, because these crimes are punished by much more than five years in jail. Those found guilty can be sentenced to life. The five-year minimum sentences would only come into play in cases with attenuating circumstances.
A five-year minimum sentence will do nothing more than curb judicial discretion in complex cases with many factors to consider, such as cases where the guilty party has diminished mental or intellectual abilities.
Another factor that must be taken into account in this debate is, once again, whether Bill C-299 will really achieve the desired goal.
According to the member, another goal of the bill is to deter people from committing this crime and send them a message. This presents a problem. As for the deterrent effect of a five-year sentence, I am not convinced that this achieves the desired goal; in fact, it could have the opposite effect. When a minimum sentence is imposed for a given offence, the individual might believe that if they show mercy, if they do not hurt the child and let the child go, maybe the judge will not be too harsh. However, if that individual knows they are automatically going to have a mandatory minimum, there is a danger that that individual might decide to hurt the child. That person might think that there is no chance that anyone will show them mercy, even if that person had a change of heart and realized they made a mistake, if they hear the message that the parents are worried and if they release the child. Thus, there is a risk that this could have the opposite effect on criminals.
I would like to conclude on a final point that relates to the severity of the sentences that are usually imposed, which I mentioned earlier. I would like to quote some evidence from committee to explain my position.
In his testimony, Justice Major stated the following:
It's interesting to look at the range of sentences for kidnapping...where there's no minimum. The sentences, nonetheless, have been severe...The courts, to my knowledge, have always treated commercial kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years...I think you'd have to look hard to find a case where a serious kidnapper was sentenced to less than that.
Thus, I do not believe that this bill will really change anything. On the contrary, it could even have unwanted negative consequences, and this could be very bad for children.
Pierre Jacob NDP Brome—Missisquoi, QC
Mr. Speaker, today I rise to speak to Bill C-299, introduced by the hon. member for Kootenay—Columbia, which is at report stage and third reading. This bill, entitled An Act to amend the Criminal Code (kidnapping of young person), adds a new paragraph to subsection 279(1.1) of the Criminal Code. It provides for a minimum sentence of five years for anyone who kidnaps a person under 16 years of age. The legal definition of kidnapping is found in subsection 279(1), which states:
Every person commits an offence who kidnaps a person with intent (a) to cause the person to be confined or imprisoned against the person’s will; (b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (c) to hold the person for ransom or to service against the person’s will.
I will simply quote some witnesses to illustrate my remarks. A former Supreme Court Justice had this to say:
With a minimum sentence you're boxing in the judiciary, but you're also providing a motive for the kidnapper to perhaps act very viciously and do something to the child, so that he won't be identified. Then the minimum sentence becomes academic, because he doesn't think he's going to be caught.
I'm still a little concerned about a minimum sentence that's absolute. Cases are not all the same, as you know, and the minimum sentence may be inadequate in a number of circumstances of commercial kidnapping, but in other cases it may not be proper....
...experience shows that the severity of the crime seldom acts as a deterrent, because there's a philosophy that says the criminal doesn't believe he'll be caught.
It's interesting to look at the range of sentences for kidnapping in our judicial history where there's no minimum. The sentences, nonetheless, have been severe. By severe, I mean lengthy. The courts, to my knowledge, have always treated commercial kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years, so that the five years is not extreme. I think you'd have to look hard to find a case where a serious kidnapper was sentenced to less than that.
The criminal offence of kidnapping, as defined earlier carries a number of sentences that are set out in subsection 279(1.1) It should be noted that the maximum sentence of life imprisonment applies to all cases. Bill C-299 also provides for the same maximum sentence.
In our society, protecting minors is very important. It is always sad to hear about child kidnapping on the news. Sexual predation and assault are crimes that we categorically condemn. I would remind the House that the NDP supported harsher sentences for sexual assaults. However, with regard to this bill, I would like to express reservations about, on the one hand, the objective of creating a deterrent and, on the other, the bill's usefulness from a strictly legal standpoint.
It seems that my colleague introduced this bill to create a deterrent by establishing a new minimum sentence. If that is the objective, I would like to remind my colleagues that the sentence of life imprisonment already exists and that it has been applied in British Columbia.
If we look next at the legal analysis of this bill, the Criminal Code already provides a legal framework for kidnapping. Thus, people found guilty of this criminal offence can be sentenced to a maximum of life in prison. When judges have to rule on cases involving the kidnapping of a child, they have tools available to them that allow them to impose suitable sentences on offenders who represent a danger to society. It is important to note that, in a review of cases involving the kidnapping of a child, the average sentence imposed already exceeds the five years set out in the Criminal Code and is often as long as 8 years. Including a minimum sentence of five years in the Criminal Code would therefore only serve to limit the judge's discretion. Judges must be able to assess the extenuating and specific circumstances when making their decisions.
As a member of the Standing Committee on Justice and Human Rights, I had the opportunity to listen carefully to the various witnesses when Bill C-299 was being examined in committee. What we learned there was that a minimum sentence limits the work of a judge in determining the sentence and that the deterrent effect of the minimum sentence would not meet these objectives in that it would not prevent people from committing the crime of kidnapping.
The president of Child Find British Columbia said:
As some of the members have pointed out, I believe any terms that have been put out there have not been for less than five years. They've been for anything higher than five years...I don't know to be quite honest, because as I said, judges are already going beyond that, and by putting in five years it now brings down that eight-year sentence to a minimum of five years, so I don't know if that is the message.
For all these reasons, in the case of mandatory minimum punishments, as the lawyer for the Canadian Civil Liberties Association said:
...that evidence shows the contrary...The bottom line is that mandatory minimum sentences are not effective. They're a simple way of looking at a complex problem and, in my submission, ultimately a myopic way of looking at that problem...If the intent of this bill is to decrease the kidnapping of young people, to protect young people, the evidence shows that mandatory minimum sentences, I submit, will not accomplish that goal. In turn, they will bring the practical side effects that I can testify about: the increase in court time; the perverse incentives; the shift—
The Acting Speaker Conservative Barry Devolin
Order. The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper. The hon. member for Brome—Missisquoi will have three minutes to finish his speech next time.
Lisa Raitt Conservative Halton, ON
moved that Bill C-43, An Act to amend the Immigration and Refugee Protection Act, be read the second time and referred to a committee.
Rick Dykstra ConservativeParliamentary Secretary to the Minister of Citizenship and Immigration
Mr. Speaker, I appreciate the opportunity to spend a little time to talk about Bill C-43.
As the House and this country are aware, there are two fundamental propositions that we are working through and objectives that we would complete over the next period of time with respect to immigration.
First, from an immigration perspective, there is the aspect of ensuring that our backlogs are reduced to such an extent that they no longer pose an issue or problem with respect to driving Canada's economy. We stated very clearly in the budget bill of this spring and early summer that one of the economic drivers for this country over the next decade was going to be a focus on immigration and ensuring that we will bring into the country those with the skill sets necessary to work in this country where those jobs cannot be filled by Canadians. This would enable this country to move quickly, from an economic perspective, to ensure that when companies across this country are moving forward and cannot find those to do the work, we are able to access those skill sets in a very quick and expedited fashion
We know that the previous government cared little about these factors with respect to the economy. We have made it clear that our number one objective is to ensure that Canada's economy remains strong and use immigration to drive the vehicle of the economy.
The second piece on immigration is to ensure security so that our system is not taken advantage of and can be trusted. Most importantly, we would have an immigration system that protects Canadians. It would ensure that victimization through immigration fraud or criminal activity would be halted immediately. Those individuals who are not Canadian citizens would face deportation from this country, based on illegal acts that they have committed.
Our Conservative government is committed to keeping our streets and communities safe. In fact, our platform of 2011 promised to expedite the deportation of foreign criminals. Our government has followed up on that promise by introducing Bill C-43, the faster removal of foreign criminals act.
We are a generous and welcoming people. We also have no tolerance for criminals and fraudsters who abuse Canada's generosity. This proposed legislation would put a stop to foreign criminals relying on endless appeals to delay their removal during which they can continue to commit crimes and victimize Canadians. Our message to foreign criminals is very clear. They are not welcome in our country.
The faster removal of foreign criminals act focuses on three areas. One, it would make it easier for the government to remove dangerous foreign criminals from our country. Two, it would make it harder for those who pose a risk to Canada to enter the country in the first place. Three, it would remove barriers for genuine visitors who want to come to Canada to enjoy our hospitality and the beauty of this country.
I would like to expand on the first area in terms of making it easier for the government to remove dangerous foreign criminals from our country.
We would lower the current threshold to bar access to the Immigration Appeal Division for serious criminality from a minimum sentence requirement of two years to a sentence of six months.
We have all witnessed on a regular basis serious crimes that receive a minimum penalty, whether by judge or jury, of a minimum of two years. However, we have noticed across the country that courts are often using two years less a day to penalize individuals for their crime. At the same time it obviously changes the aspect of that criminal conviction, because it is less than two years, and therefore the scope of the current legislation does not allow us to pursue those individuals for the purpose of getting them out of the country and deporting them. Therefore, we would lower that threshold of two years down to six months for acts of serious criminality.
We also will bar those who are convicted of an offence or committed an act outside Canada, which, if committed in Canada, would carry a maximum sentence of at least 10 years. If individuals commit a crime in another country and its equivalent is a maximum penalty of 10 years if committed here in Canada, we will ensure they are not welcome here and will not participate in Canada's democracy because they have not earned the right to do so based on the crime for which they have been convicted.
We will restrict access to humanitarian and compassionate consideration for foreign nationals who are inadmissible on grounds of security, human or international human rights violations, or organized criminality. We also will clarify that the Minister of Public Safety may only take public safety and national security considerations into account when examining an application for ministerial relief. We will get specific in terms of what a minister, whether of public safety or citizenship and immigration, can do in terms of making a decision on his or her own.
We will deny temporary resident status to foreign nationals who have a non-accompanying family member who is inadmissible on grounds of security, human or international rights violations, or organized criminality. When an organized criminal gets caught in his or her country, is charged, is convicted and we see family members of that individual fleeing because they know they are next or that they face potential criminal investigation themselves, no longer will they have the ability to come into this country.
If a terrorist regime in another country has been brought down, as we have seen over the past year, and the leaders of that terrorist regime or their families attempt to come here to Canada, they will no longer have the right to do so based on their attachment to the criminality and to the rights violations committed in their country of origin.
We will increase the consequence for misrepresentation from a two-year inadmissibility to a five-year inadmissibility and, in addition, ban such individuals from applying for permanent resident status within those five years. If there is one thing I have noticed in my close to four years as Parliamentary Secretary to the Minister of Citizenship and Immigration is that time and time again we have bogus applications coming from other countries simply because some individuals lie on their application, misrepresent their situation, misrepresent their family or misrepresent the reason upon which they are applying for permanent resident status in Canada, whether that be through the normal procedures available or whether it be by refugee status. Therefore, if bogus refugees who want to come to this country misrepresent themselves or basically lie on their application, they will face a five-year inadmissibility penalty instead of a two-year penalty. It also would allow the ministry to ensure that these individuals who have misrepresented themselves cannot apply for permanent residency here in Canada for up to five years during that ban.
We are ensuring that we will make it easier for the government to remove dangerous foreign criminals from our country.
On the second point, we will make it harder for those who pose a risk to Canada to enter the country in the first place.
As I mentioned, we will ensure that our system is modernized and that it meets the standard upon which we should have those coming to this country be allowed to enter into Canada. We will ensure that eligible individuals could file an appeal to the Immigration Appeal Division only if sentenced to less than six months imprisonment in Canada. For example, permanent residents sentenced to 11 months in jail for sexual assault would no longer be eligible to appeal a removal order. They would be removed.
A new bar would be added so that those with a foreign conviction or who committed an act outside of Canada carrying a maximum sentence of at least 10 years in Canada could no longer access the Immigration Appeal Division as well. Clearly this would be an expedited process. If individuals have been convicted of a serious crime in this country or a comparable crime in their country of origin, they will not have the appeal, after appeal mechanism that so many of these criminals have had in the past. That will not exist any more. They will have the right to an appeal but it will be one appeal, it will be quick, fair and, upon the decision of that appeal, it will obviously carry the consequences which will be carried out once that decision is made.
Foreign nationals inadmissible on the most serious grounds of security, human international rights violations or organized criminality will no longer be able to apply under the humanitarian and compassionate provisions. A war criminal would be ineligible to request humanitarian and compassionate considerations as a way to delay removal or remain in Canada permanently.
The legislation would also codify the court's decision. The Minister of Public Safety could only take national security and public safety factors into consideration and not factors such as humanitarian and compassionate when deciding to grant a request for relief from inadmissibility. It would have to be on the grounds of security, certain human international rights violations or organized criminality.
There would also be a new authority that would allow the Minister of Citizenship, Immigration and Multiculturalism to deny temporary residence status for up to three years on the basis of public policy considerations. For example, the minister could use the authority in the case of a foreign national who promotes violence against a religious group. This will not happen very often but it does not exist in the legislation today which would give the Minister of Citizenship, Immigration and Multiculturalism the authority to disallow someone to enter Canada based upon, for example, as I stated, that the person would be promoting violence against a religious group in his or her own country of origin or internationally.
Foreign nationals would be inadmissible to visit Canada if the foreign national has a family member accompanying them, or not accompanying them, who is inadmissible on the grounds of security, human international rights violations or organized criminality. For example, the spouse of a person who is inadmissible for war crimes would be inadmissible even when the spouse is travelling to Canada alone.
When we look at those two examples, we can see that the focus that we are taking as a government, that we committed to in the last election and are implementing under Bill C-43, would make it extremely difficult for those who do not meet the standards of immigration here in this country to gain access to the country, to gain permanent residence and, eventually, to gain Canadian citizenship.
However, we also believe it is important that we remove barriers for genuine visitors who want to come to this country. We would make it easier for those who are of no risk or those who are of low risk to get into Canada. For example, low-risk foreign nationals would be admissible for temporary entry into Canada when travelling with a family member who is inadmissible on grounds of serious criminality, health, finance misrepresentation or non-compliance.
Therefore, a parent who is inadmissible on health grounds would remain inadmissible and require a temporary resident permit to visit Canada. However, the remaining family members would actually now be admissible. Under the current legislation, that is not the case. If an individual, for health reasons, is unable to be granted a temporary visa, his or her family is not granted a visa to come here. We will make that change.
Inadmissible persons seeking ministerial relief would need to submit a formal application. The minister's authority to grant relief on his or her own initiative without a formal application will be explicitly spelled out in the act. The minister could use this explicit authority to facilitate the entry of a head of state who would otherwise be found inadmissible if the minister were satisfied that the decision was not contrary to national interests. There are those from other countries currently who are in positions of government or leadership who, based on the current grounds of our law, would be inadmissible to come into Canada. This would allow the minister some flexibility, so to speak, to grant the individual the right to come here to Canada to do his or her work.
Foreign nationals or permanent residents are inadmissible on the grounds of security for any act of espionage against Canada, contrary to the interest of Canada. That part simply will not change.
As members can hear, the position the government has taken is to be tough, to be fair and to update an act that is in need of update. It does not take much for us to find examples from across the country over the past number of years of individuals who have been able to take advantage of our system or to, quite simply, beat our system as it currently is structured.
I will point to a couple of cases because they clearly illustrate the problem that we have and the corrective action that is necessary.
Jackie Tran, whose country of origin is Vietnam, committed the following crimes: assault with a weapon, drug trafficking, drug possession and failure to comply with court orders. The sentences ranged in length from a $100 fine to two years less a day imprisonment. Did he appeal? Absolutely, he appealed. His removal order was completed in April 2004 but his removal actually took place in March 2010. For nearly six years, that individual took advantage of our system, used every appeal mechanism available to him and remained in this country. There are those who are in this process as we speak and who have again, while appealing to stay here in Canada, committed crimes.
Patrick De Florimonte from Guyana has been charged with multiple assaults with a weapon, assault causing bodily harm, uttering threats, multiple counts of theft, of drug possession, of drug trafficking and of failure to comply with court orders. His removal order was in October 2007. I stand here today and tell the House that that individual has not yet been removed from the country due to four and a half years of delay and running from his responsibilities. He is potentially committing crimes yet again in the country.
Gheorghe Capra has over 60 counts of fraud, forgery, conspiracy to commit fraud, obstructing a peace officer and failure to comply with court orders. His sentences ranged from two days to two years less a day. His removal order was September 2003. He was removed on January 2009 due to six years of appeal after appeal, not to mention the cost that we face in terms of moving through this process with these individuals.
Cesar Guzman was charged with the sexual assault of a senior citizen. He served 18 months in jail. His removal order was in May 2007. He was removed in April 2011 due to nearly four years of delay.
I could go on. There are example after example that are available to me and to anyone who wants to get a clear understanding of what has happened with this system over the past number of years and why it needs to change. It was by no accident that this policy, this platform, this legislation was included in the 2011 platform that we were elected on and the reason we are introducing it and carrying it through to second reading to get this bill to committee to be studied, then to have it come back to the House to be passed, then sent to the Senate for Royal Assent as quickly as possible so that we can put a stop to these types of examples that take advantage of our system, victimize people in our country and make a mockery of our system for those from other countries who believe that we can simply be taken advantage of. That will not occur anymore.
We have person after person who support this. Deputy chief, Warren Lemcke, of the Canadian Association of Chiefs of Police supports this bill and feels that it would help make Canadians and those who legitimately enter Canada safer.
The Canadian Police Association stated, ”This ensures that public safety is one of the considerations with respect to admissibility. To Canada, this is a clear step in the right direction”.
I have page after page of those who support this legislation.
I do not think this should take too long at committee. Rather, it should move through committee very quickly. It is clear that this is not an issue of partisanship. This is an issue of fairness and of treating those who want to take advantage of our system in the way that they should be treated. It is ensuring that it is fair to victims and to Canadians who would suffer as a result of these individuals being in Canada.
The opposition has already made comments. Both of our critics have made comments about the legislation. The government and I think that when a bill goes to committee it can always be improved. There is no question about it. However, they should be supporting the bill. If members want to make amendments that improve the bill, we will study them and look at them, but at the end of the day it is a bill that makes sense and it is one that has the overwhelming support of Canadians across the country. I look forward to it moving to committee.
Jinny Sims NDP Newton—North Delta, BC
Mr. Speaker, we all want to be tougher on non-citizens who commit serious crimes in Canada, but we have some very serious concerns with aspects of this Conservative bill that would concentrate more arbitrary powers into the hands of the minister.
For example, the minister can keep out and declare people who are not in Canada yet inadmissible for up to 36 months as well as those who are already in Canada on grounds of public policy. This whole area seems just so wide, so open and not very clear.
Why is the government trivializing our judicial system and judicial processes by placing more arbitrary powers into the hands of the minister?
Rick Dykstra Conservative St. Catharines, ON
Mr. Speaker, the only people who are trivializing and mocking this system are those who take advantage of it. Those who misrepresent themselves when they come to this country take advantage of a Canadian system built on its principles of fairness. They commit crimes. These people are criminals. They make a mockery of our system. They make appeal after appeal after appeal. That is not going to happen any more. That is not the position we are taking.
The member talked about the issue of ministerial authority. Just last week this very member was appealing to the minister to move outside of a Immigration and Refugee Board decision to unilaterally make a decision about a person when we have a quasi-judicial process in place that she knows is fair, right and that works.
Now we come back this week and there is a different flavour of the week. Now there are criticisms about the minister being given too much authority. Last week the member wanted the minister to have more authority, and this week she wants him to have less. We will have to wait to see what happens next week.
Kevin Lamoureux Liberal Winnipeg North, MB
Mr. Speaker, I appreciate the remarks of the Parliamentary Secretary to the Minister of Citizenship and Immigration. I do have a fairly specific question.
There are hundreds of thousands of people around the globe who go to Canadian embassies and immigration services with the idea of coming and visiting their families here in Canada to participate in special celebrations, graduations and a whole wonderful litany of reasons why foreign nationals want to come to Canada.
Under this legislation, the government is proposing that if someone has a family member who is involved in a criminal organization, then that person does not have the right to come to Canada.
That tells me that in order to be able to establish that fact, the overseas immigration offices are going to have to do some sort of a background check on the people who want to come to Canada to find out whether or not their children or spouse does in fact have any sort of a criminal association, such as being a member of an organized gang. Canada has numerous gangs.
Is the member saying that immigration officers around the world will have to be more diligent in making sure that family members are not part of organized criminal gangs before they agree to grant a visa?
Rick Dykstra Conservative St. Catharines, ON
Mr. Speaker, that is exactly the intent of the legislation.
If we have a person who has been convicted of a serious crime in another country and would face a maximum penalty of 10 years if that crime were committed here in Canada, we are going to ensure that backgrounds of that person's family members will be checked. We are going to make sure that if we have a person who is part of terrorist organization in their country of origin and their family flees to come here, they will no longer be permitted to do so.
Canada is not a haven for criminals; we are a haven for those true refugees who seek a new life. We are a haven for foreign skilled workers who have the ability to improve the economy here in Canada, both for themselves and their new country. We are going to make sure that the enforcements laid out in this piece of legislation are in fact finally put to rest and implemented.
I appeal to the member who has indicated on a couple of occasions that he supports a number of things in this legislation. I am asking him and his party to get the bill to committee. Let us work through it at committee. Let us bring the witnesses in. Then let us come back here and have unanimous support for this piece of legislation.
Laurie Hawn Conservative Edmonton Centre, AB
Mr. Speaker, in my experience in my riding, a lot of the people who are most upset at the abuse of the immigration system are immigrants themselves. They have come here and have followed the rules and are a little upset that other people take advantage of the system.
I am interested in other countries' experiences. We are not the only country that has been open and welcoming and has been abused. I am curious as to whether we have leaned on the experience of any other like-minded countries, such as Australia.
Rick Dykstra Conservative St. Catharines, ON
Mr. Speaker, the member quite rightly points out that Australia is a country that has gone through some similar circumstances to what we have faced.
Our proposals, although tough and fair, compared to those of countries like New Zealand and Australia are very fair and moderate. However, those countries have already implemented their proposals. They are already on that course to ensure the safety of their citizens.
This bill merely takes the same actions they have taken. As we work through our immigration legislation, each and every part of the immigration system is going to be improved. Bill C-43 gets at that very important aspect of foreign criminals who want to gain access to Canada.
Craig Scott NDP Toronto—Danforth, ON
Mr. Speaker, I thank the hon. parliamentary secretary for outlining what the bill contains.
I have a quick question on the new subsection 22.1, the section allowing the minister to exclude someone from gaining a temporary residence permit for up to 36 months if, in the minister's own opinion, public policy considerations justify doing so. We have already heard of some concerns about the generality of this.
Is the government at all open to giving some substance to the notion of public policy? What are the guarantees that this could not be used for political reasons? You did say to us just now that this would not happen very often. I would be very interested to know what guarantees we would have, including whether judicial review is contemplated by the government.