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, 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.