1st Session, 41st Parliament,
Volume 148, Issue 134

Wednesday, February 6, 2013
The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator White, seconded by the Honourable Senator McInnis, for the second reading of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person).

Hon. Mobina S. B. Jaffer: Honourable senators, I am pleased to rise today to speak at second reading to Bill C-299, An Act to amend the Criminal Code (kidnapping of young person).

Bill C-299 imposes a five-year minimum mandatory sentence when a kidnap victim is under 16 years of age, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the victim.

In other words, honourable senators, this bill deals with strangers who kidnap children under 16 years of age.

In the wake of the tragedy in Newtown, Connecticut, President Obama spoke a simple truth. He said:

This is our first task, caring for our children. It’s our first job. If we don’t get that right, we don’t get anything right. That’s how, as a society, we will be judged.

As a mother and a grandmother, those words reflect my core purpose as a member of this house. I am a grandmother first; this is my preferred vocation. Children are the most vulnerable members of our society. That does not mean that they are not subjects of their own rights, uniquely talented and capable. However, the state nonetheless has an explicit responsibility to protect its children.

Article 19 of the UN Convention on the Rights of the Child requires states to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of violence.

According to Article 36, the state must protect the child against all forms of exploitation prejudicial to any aspects of the child’s welfare.

The UN Convention on the Rights of the Child is perhaps the most widely recognized international law. Disappointingly, the rights defined by the convention are shamefully far from being guaranteed, including here at home, in Canada.

That is what debate on this bill should be about: a child’s unalienable right to live in safety and security, and the legal obligations for states to protect children and their rights. I truly believe that this ideal is what the sponsor of this private member’s bill had in mind when he drafted and proposed this legislation in the other place.

Honourable senators, I wanted to start my speech today by talking about the shared priority of caring for our children. In the cut and thrust of parliamentary debate, we sometimes forget that we agree much more than we disagree. In debate, we draw distinctions and highlight disagreement to persuade and convince. At the same time, it is important to refocus debate and discussion of our shared values from time to time.

Caring for and protecting our children should be our ultimate priority. This is our common ground. Nonetheless, we may disagree strongly, politely and, at the very least, respectfully on how best to achieve this priority.

Let me be clear. While I am framing my critique of this legislation in the broader context of a child’s right to live free of violence and exploitation, I recognize that this frame is broader in scope than the particular branch of legal policy that this bill addresses. However, I think that private members’ bills often lend important opportunities to comment on and debate complex policy questions. Especially at second reading, when we debate the main principles of a bill, it is important to consider how answers to these broader questions might inform our position on this particular legislation.

The question that I would propose is as follows: How can the federal government best protect children against violence and exploitation? I will repeat the question, because I think it is essential. How can the federal government best protect children against violence and exploitation?

The federal government should promote education and public awareness and support the organizations that do this kind of work, such as the Canadian Centre for Child Protection.

The government should work with the provinces and municipalities in order to proactively address the social factors that foster crime. It should provide a social safety net. It should also ensure that men and women serving a sentence in a federal prison receive the services they need, especially mental health treatment, to be rehabilitated and reintegrated into society.

To answer my question in the context of Bill C-299, it is important to affirm that mandatory minimum sentences do not protect children against violence and exploitation. To be fair, there are other government initiatives to protect children. Senator White mentioned AMBER Alert, and the government does support the Canadian Centre for Child Protection. However, there are some other areas, such as ensuring a social safety net; addressing mental health; and promoting education and awareness where the federal government should demonstrate leadership. Instead, Parliament debates a bill on child kidnapping that does not protect children against violence and exploitation.

Enacting legislation that purports to address the child’s right to live free of violence and exploitation, but that in effect stalls or subverts those efforts, does more harm than good. This is not new knowledge, of course. The Canadian Sentencing Commission published a report in 1987 that found that:

Mandatory minimum sentences that create injustices by unnecessarily restricting judicial discretion without accomplishing other functions ascribed to them.

Rather than deter criminal behaviour, mandatory minimums engender recidivism. Rather than promoting fairness, they gamble with justice. Rather than responsibly addressing a public safety issue, they masquerade as silver-bullet solutions.

More recently, provincial court Judge James Bahen ruled that a mandatory minimum sentence enacted in 2008 “creates an arbitrary and fundamentally unjust sentencing process in violation of Section 7” of the Canadian Charter of Rights and Freedoms. In other words, honourable senators, mandatory minimums subvert the principles of fundamental justice enshrined in our Constitution.

Moreover, mandatory minimum sentences are inherently contrary to the sentencing purposes and principles enumerated in the Criminal Code. Canada’s sentencing purposes and principles were codified in the Criminal Code in 1995. I found such in sections 718 and 718.2 of the code. Section 718 states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

In addition, according to section 718, sentences should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code outlines other sentencing principles and specifies a number of aggravating factors that the courts may also take into consideration. These principles include judicial discretion, mitigating circumstances, finding the least restrictive sentence and restorative justice sentences. They are about fairness and justice, but also the public interest and proactively rather than reactively promoting the protection of Canadians from violence and crime.

In R. v Wust, Madam Justice Arbour commented on the relationship between Canada’s sentencing principles and mandatory minimums. Writing for the court, she said:

Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing… expressed in the Code, in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code: the principle of proportionality.

The Canadian Sentencing Commission has elaborated on the principle of proportionality even before the sentencing purposes and principles were codified. In its 1987 report, the commission said:

Each criminal offence is uniquely defined by its own set of circumstances and the notion of a judge pre-determining a sentence before hearing the facts seems abhorrent to our notions of justice. If the punishment is to fit the crime, then there can be no pre-determined sentences since criminal events are not themselves pre-determined.

Writing in a 2008 issue of the Oxford Journal of Legal Studies, Canadian Supreme Court Justice Fish concluded that in cases where the judge finds that the mandatory minimum sentence would be unjust in the circumstances, mandatory minimum sentences are plainly inconsistent with the principle of proportionality.

Honourable senators, Mr. Irwin Cotler, Member of Parliament for Mount Royal and former Minister of Justice and Attorney General of Canada, is recognized as an expert on international law and human rights law. He also has considerable expertise in the area of criminal sentencing and, as honourable senators know, currently serves as the Liberal Critic for Justice and Human Rights. Professor Cotler was not always critical of mandatory minimums. He is very open about this. He said that his perspective has evolved. As such, he presents a very compelling point of view, a legal expert who deeply understands the arguments for and against the enactment of mandatory minimum sentences.

Speaking at a meeting of the House of Commons Standing Committee on Justice and Human Rights, Professor Cotler laid out the following 12 criticisms of mandatory minimums. I would like to quote his critique as I believe it would be particularly germane to the debate on Bill C-299. He said:

The first thing is that my own appreciation of mandatory minimums is that they do not advance the goal that I thought they did, namely that of crime prevention and deterrence. Part of that, as I said, came from my look at international social science research and evidence. Part of it came from my own experience as minister in the Department of Justice. I came across a document . . . that was originally published in December 1990. It was called “A Framework for Sentencing, Corrections and Conditional Release, Directions for Reform”, Justice Canada 1990. In particular, if you look at page 9 of that report, it says:

. . . the evidence shows that long periods served in prison increase the chance that the offender will offend again… In the end, public security is diminished rather than increased if we “throw away the key”.

. . . I’m making reference to it, in that as Minister of Justice some of the evidence produced by the Department of Justice did have its own impact on my thinking, particularly as it dovetailed with what I was observing or appreciating or studying, not only in the Canadian jurisdiction but in other jurisdictions.

In a moment I will reference a report from the U.S. Sentencing Commission that was released this month, on November 12, [1990,] which I think is relevant to our approach this evening. That’s my first point.

Professor Cotler continues and says:

The second point is that mandatory minimums do not necessarily target the most dangerous offenders who will already be subject to very stiff sentences because they have committed the most serious of crimes. Regrettably, . . . more often less culpable offenders may be caught by mandatory sentences and subjected to extremely lengthy terms of imprisonment.

In this regard, let me quote from the report that came out, as I said, in the second week of November. It’s a 645- page report from the United States Sentencing Commission. I take what has been said about the differences between Canada and the United States, and I don’t make applications in terms of Texas to Canada willy-nilly without knowing the differences. . . . I’m saying that on the issue of principle and policy, what was found with regard to the mandatory minimums . . . and I will just share it with you for its appreciation.

The Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe”, not “narrowly tailored to apply only to those offenders who warrant such punishment”, and not “applied consistently”. . . .

That leads me now to the third consideration or critique I want to make, which is that mandatory minimums—and we’ve heard this—have a disproportionate impact on minority groups who already suffer from poverty, deprivation, and disadvantage. In particular, it may prejudicially affect aboriginal communities. Again, this is something I appreciated, not just from the studies but more when I was Minister of Justice, and that is why I made aboriginal justice a priority. I found that aboriginal peoples are overrepresented as inmates in the criminal justice system and underrepresented as judges, law enforcement officers, and the like.

. . . this has a particular application in terms of sentencing principles and the overall approach to the fallout with respect to mandatory minimums and their impact on aboriginal peoples. Accordingly . . . Criminal Code paragraph 718.2(e) requires that the situation of aboriginal offenders be considered at sentencing. If a less restrictive sanction would adequately protect society, or where the special situation of aboriginal offenders should be recognized, increased sentences and mandatory minimum sentences would tend to conflict with that principle.

The Supreme Court of Canada, in the Gladue case, also recognized that incarceration should generally be used as a penal sanction of last resort and that it may well be less appropriate or useful in the case of aboriginal offenders.

I make that point to conclude this third critique, and that is the disproportionate and prejudicial impact that mandatory minimums may have on vulnerable communities, particularly aboriginals.

This leads me to the fourth critique, which is that mandatory minimums may undermine important aspects of Canada’s sentencing regime. Reference has been made to that, and I don’t want to belabour this point, but it can undermine principles such as proportionality and individualization and the corresponding reliance on judges to impose a just sentence after hearing all the facts in a particular case.

This leads me to the fifth critique. Let me return . . . to the United States Sentencing Commission, which I referred to before, and the manner in which it determined that federal mandatory minimum sentences can be excessively severe and can have a differential impact on those who do not warrant such sentences and the like . . . . This is especially true in the matter of drug offences, which make up, for example, some 75 per cent of those involved in mandatory minimums. So there’s a particular fallout with regard to the genre of offences, and as I said, not all of them are engaged in the matter of organized crime.

Sixth . . . mandatory minimums have the potential to add an unnecessary complexity to the framework that we now have with respect to our existing sentencing principles and to increase the court time that is required for sentencing hearings.

In other words… we have a kind of double paradox here, almost a dialectic. Fewer accused are likely to plead guilty, adding to current strains on court resources. On the other hand, prosecutors may leverage the fact of mandatory minimums in order to get accused to plead guilty. So it’s a kind of pincer movement where they are caught in between precisely because of the underlying premise with regard to mandatory minimums to begin with. Therefore, the bill would often conflict with existing common law and statutory principles of sentencing such that the sentences could end up, however inadvertently, being excessive, harsh, and even unfair, and raise a [question of] section 12 Charter consideration, which leads me to the eighth consideration.

The mandatory minimums, for reasons I need not go into, and I think have been referenced, may invite a spectrum of constitutional challenges that will further clog up the courts and further take us away from principles of justice and fairness.

This leads me to the ninth critique, and as the U.S. Sentencing Commission and the Canadian Sentencing Commission have pointed out, inequitable and inconsistent sentencing policies—and this can and very often does result from mandatory minimums—may foster disrespect of and lack of confidence in the criminal justice system, another consideration or variable that I share, which leads to the tenth critique . . . .

At the end of it all, as the evidence has shown, we may end up with a situation in which we will find ourselves incarcerating more people for longer periods of time, thereby aggravating the existing problem of prison overcrowding, which we had even before the legislation was tabled and which may, in and of itself, raise a question of constitutional concern—as it has in the United States and the ruling recently in the United States Supreme Court in the matter of California—with regard to the perspective of cruel and unusual punishment.

The eleventh critique has been mentioned, and I won’t mention any more. That is the question of costs.

We have a risk not only of increased or often skyrocketing costs, but also a fallout or impact on federal- provincial relations, where the provinces have to endure the burden of these increased costs by reason of these increased mandatory minimums, and there may not have been the appropriate federal-provincial consultation for that purpose.

Finally, . . . as the U.S. Sentencing Commission and equally Canadian evidence have pointed out, confirming evidence from other jurisdictions I have examined . . . . The U.S. Sentencing Commission confirms this or reflects other jurisdictions.

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

Let me just continue on this point . . . because that was from an editorial commenting on this U.S. Sentencing Commission report. This editorial came out even before it arrived, as a result of another study that was made in New York on the matter of mandatory minimums. I won’t prolong it, but I just want to say that in The New York Timeseditorial on September 28, 2011, it referred to the fact that

. . . prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process—doing what judges are supposed to do in open court, subject to review.

“This dynamic”, the editorial holds—and again, I just throw it out for consideration, not for conclusive appreciation—is yet “another reason”, as they put it,

to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost. These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system’s attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

. . .

In conclusion, . . . if you look at all the criminal justice organizations that have studied this—both in the United States and in Canada—and focused on this particular issue of mandatory minimum sentences, the general conclusion arising from all these studies is to be critical of, if not to oppose, mandatory minimums.

Honourable senators, I do not quote Professor Cotler as I believe mandatory minimums change how we punish people. That is why I wanted to ensure that his complete critique was in front of you. I think it is important that the Canadian criminal justice community and Canadians generally note principled opposition to the concept of mandatory minimum sentences, but I also think it is important for us to consider Professor Cotler’s 12 criticisms in the question that I proposed at the outset of my speech: How can the federal government best protect children against violence and exploitation? That is what this bill is supposed to be about — protecting children. Instead, we are talking about enacting legislation that will take away judicial discretion.

If anything, the most direct consequence to children would be that criminal behaviour, rather than being responsibly addressed through a system designed to consider the particular circumstances of a crime, is met with a five-year sentence that will only promote recidivism. As Professor Cotler points out, an indirect consequence of the legislation is that resources will be misappropriated: less for crime prevention, less for poverty reduction, less for social programs. Less money to protect children, more money to . . . . Well, honourable senators, I admit that I am not quite sure what the objective is anymore.

There is no honour in passing a bill that is supposed to deal with child abduction but does not. Doing so would mean failing in our duty to respect children’s rights.

In his speech, Senator White mentioned passing an amendment that was proposed by a Liberal member in a House of Commons committee and that was designed to order judges to take into account the age of the victim when determining the sentence.

When it comes to sentencing, we must give judges the tools they need to ensure that sentences are proportional to the crimes committed.

Offenders in serious kidnappings usually receive sentences of 10 to 15 years. The existing punishment in section 279(1.1)(b) of the Criminal Code already provides for the maximum sentence of life imprisonment in stranger kidnapping cases, but Bill C-299 removes the judge’s discretion in determining the minimum sentence.

When the offender has mental health problems, for example, imposing a mandatory minimum sentence does not enhance public safety.

If we agree that the sentence imposed must correspond to the crime committed, facilitate the offender’s rehabilitation and reintegration into society and enhance community safety, a mandatory minimum sentence is not the solution.

Caring for our children is our first job. If we do not get that right, we do not get anything right. That is how, as a society, we will be judged. As I said at the outset of my speech, honourable senators, we agree more than we disagree, and I believe that President Obama’s poignant words at Newtown evoked a responsibility that we all feel and share.

Discussion and debate on this bill will undoubtedly continue at the committee stage. As the debate continues, I ask you to remember this key question: How can the federal government best protect children against violence and exploitation? Answering this question in the most responsible and forward-thinking manner possible may be the most important thing we do as senators.

The Hon. the Speaker: Honourable senators, are you ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Hon. the Speaker: Carried, on division.

(Motion agreed to, on division, and bill read second time.)

Referred to Committee

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Comeau, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)