Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 34 - Evidence for April 25, 2013


OTTAWA, Thursday, April 25, 2013

The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-309, An Act to amend the Criminal Code (concealment of identity); and Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), met this day at 10:32 a.m. to give consideration to the bills.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning and welcome, honourable senators, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We are meeting today to complete our consideration of Bill C-309, An Act to amend the Criminal Code, which deals with concealment of identity. Following the completion of that, the committee will begin its consideration of Bill C- 299, An Act to amend the Criminal Code, dealing with kidnapping of a young person.

Before we begin clause-by-clause consideration of Bill C-309, we have one official from Justice Canada with us here today. If members have any technical questions, Mr. Paul Saint-Denis who is a senior counsel in the Criminal Law Policy Section, is here. Do we wish Mr. Saint-Denis to come forward now? Do we contemplate any questions?

Senator Fraser: That would be as you wish, chair. I personally do not have questions for him.

The Chair: If something arises, we will call you forward, sir. Thank you for being here.

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-309, An Act to amend the Criminal Code (concealment of identity)?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1, which contains the alternative title, stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 2 carry?

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 3 carry?

Senator Fraser: On division.

The Chair: Carried, on division.

Shall clause 1, which contains the alternative title, carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall the title carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall the bill carry?

Some Hon. Senators: On division.

The Chair: Carried, on division.

Is it agreed that I report this bill to the Senate?

Hon. Senators: Agreed.

The Chair: Agreed.

Mr. Saint-Denis, we are finished with the bill. Thank you, again, for being here.

I have to apologize, honourable senators. This is the second week in a row that we have had to do this, but we are now advised that we will have to wait for our witness. As we move on to Bill C-299, our one and only witness today is David Wilks, Member of Parliament for Kootenay—Columbia. He is apparently tied up in the House of Commons and will not be able to be here until 11:30, so I will have to suspend the meeting and ask you to be back here around 11:25 if possible. Thank you very much.

(The committee suspended.)

——————

(The committee resumed.)

The Chair: We will get under way with the second item of business this morning, our examination of Bill C-299, which deals with the kidnapping of a young person. We are privileged today to have with us the sponsor of the bill, David Wilks, Member of Parliament for Kootenay—Columbia.

Mr. Wilks, welcome. We appreciate you being here today. The floor is yours.

David Wilks, M.P., Kootenay—Columbia, sponsor of the bill: Thank you very much, Mr. Chair, and thank you to the committee for allowing me to present today. It is my honour to be before the Senate committee today to speak to Bill C-299, An Act to amend the Criminal Code (kidnapping of young person), to recognize the severity of the kidnapping of a child under the age of 16 by a stranger, specifically to attach a minimum sentence of five years to anyone convicted of this crime.

Unfortunately, the act of kidnapping is the forgotten crime under normal circumstances. Stranger kidnappings in Canada are a rare occurrence. However, each incident tends to shock the nation. When child kidnapping is portrayed in the media, it is usually a report of the most severe kind. A child is taken from their home, yard or bed and kept for ransom, sexual exploitation or sometimes murder.

A kidnapper is normally classified under one of four categories. One, pedophiles seem to identify with children better than with adults, which is the reason why there are able to seduce or lure children easily. Two, profiteers are individuals who are criminal exploiters and sell children to pornographers or adoption rings. Three, serial killers are methodical and ritualistic, with power, dominance and control as the most frequent motivators. Four, childless psychotics are individuals who tend to abduct children when they are unable to have children of their own or have lost a child and seek another to fill its place.

Child kidnappers are characteristically habitual offenders and carry out their assaults with a highly stereotypical modus operandi. They are some of the scariest offenders because, in terms of kidnapping, they have planned what they are going to do and who they are doing to do it to, with no regard for those they are about to affect. Their sole desire is self-gratification.

Once the kidnapping has occurred, their attention turns to not being apprehended by the authorities, and the victim is drawn deeper into the desperation of the kidnapper. Although the kidnapper might have had motives for the kidnapping, they must ensure that the victim conforms to each and every demand, and normally that will involve physical violence. The younger the victim, the more traumatic the experience.

Kidnappers seldom stalk their victims. They are usually very skilled at manipulating and luring children. In the case that occurred in Sparwood, British Columbia, the accused entered the house of the victim and removed him while the family slept.

Most kidnappers target young children because they cannot match the strength of an adult and, consequently, are quite easy to restrain.

I have one more point about why this law must be changed to better reflect the severity of the crime. In a 2000-01 study of stranger kidnapping cases, five cases were studied. In three of those cases, the accused was convicted of murder. In another case, the accused was before the courts and charged with murder. However, the most disturbing case, to me, was the last case. A babysitter kidnapped a child, and later the child was returned unharmed. The accused was sentenced to open custody and probation. That the child was returned unharmed does not justify a lighter sentence. The taking of a child without consent is just wrong.

I would like to focus for a few moments on two children from British Columbia who were kidnapped during my tenure as a police officer and another who was kidnapped during my tenure as a member of Parliament.

Michael Dunahee was born on May 12, 1986, and disappeared from the Blanshard Street playground in Victoria, B.C., on March 24, 1991. He was four years old. He has never been found. His parents were mere metres away when Michael was taken. His mother, Crystal, was instrumental in getting the AMBER Alert program implemented in British Columbia. She also serves as the President of Child Find for British Columbia.

Police officers from across Canada were kept on alert for months and years after Michael's disappearance, and it moved so many people from across Canada to volunteer their time to search for Michael.

It was been over 20 years since Michael Dunahee disappeared, and we hope that he is still alive and will be found some day.

Mindy Tran was kidnapped and murdered in Kelowna, British Columbia, in 1994. As a member of the RCMP stationed in Penticton at the time, I was part of an enormous search team assembled to search for her. The fear that gripped the city of Kelowna was very noticeable. For a young child at the tender age of 8 years old to be riding her bike on her own street and to vanish without a trace is something that no parent should be subjected to. Mindy was found six weeks later in a shallow grave not far from her home.

The third and final child I would like to speak of is Kienan Hebert. Taken from his home in Sparwood, B.C. in 2011, he was three years old. It was the middle of the night and he was taken from his bedroom while the rest of his family slept. For four days, the people of the Elk Valley, the country and the international community were focused on the safe return of Kienan to his parents and family. Through the efforts of so many and some very good police work, he was returned and his kidnapper arrested.

I have presented three kidnappings with three different results, but the fact still remains that the families of these children will never be the same. A child was taken from them without consent, and those responsible did not care, in any way, about the effects that they would have on so many.

Section 279(1.1) of the Criminal Code provides for minimum sentencing when a firearm is used in the commission of a kidnapping. In fact, the sentencing is most severe if ``the offence is committed for the benefit of, at the direction of, or in association with a criminal organization.''

Most kidnappings involving children do not involve a firearm. The child is either lured or physically manhandled. Our children are more important than any criminal organization, and we, as politicians, have an obligation to ensure that we protect them at all costs.

Children are fragile. They are to be nurtured and loved, and they should not be subject to intimidation and fear. They should know that all of society will protect and stand up for their well-being. Bill C-299 will do just that.

The Chair: Thank you, Mr. Wilks. We appreciate your appearance.

We will begin the questioning with the deputy chair of the committee, Senator Fraser.

Senator Fraser: Welcome to the Senate, Mr. Wilks. Do you have any data on the length of sentences that are usually imposed for the kidnapping of a child?

Mr. Wilks: Right now, under section 279, there is no minimum. Normally kidnapping is stayed because a more severe charge comes with it, whether it be sexual assault or murder. Very rarely is a kidnapping charge followed through with the court.

Senator Fraser: So you do not know. As I understand it, some experts have said that the courts now, when kidnapping does reach the stage of trial, regularly impose heavier sentences than you propose. Therefore, I am wondering why you think this bill is necessary.

Mr. Wilks: I would refer you to the Tori Stafford case, where she was kidnapped first. That was the first thing that happened. That was never laid. They convicted of murder and sexual assault but nothing on kidnapping.

Senator Fraser: Once convicted of murder, you have more than five years to serve.

Mr. Wilks: I truly agree with you, senator. However, the initial crime was kidnapping. That was the initial crime, and it was forgotten.

[Translation]

Senator Boisvenu: I want to begin by congratulating you on your bill. When I was working with the Association of Families of Persons Assassinated or Disappeared, we were very worried about the fact that the number of murders had dropped slightly, but the number of kidnappings — of both adults and children in Canada — had risen by almost 40 per cent.

Only a small percentage of disappearance cases are solved. I think the figure is about 15 per cent in Quebec and 30 per cent in Ontario because the OPP has a specialized team, while Quebec only recently put together a team for investigating unresolved disappearance and murder cases.

What worries me even more is the fact that we have no statistics on disappearances in Canada. Very little data is available on disappearances because there is no body, no kidnapping, and there are no circumstances to speak of. Another very worrisome element is the fact that we do not have a national missing persons index.

Quebec has 34 police services, each of which has its own missing persons index. There is no centralized database.

Canada is well behind other countries. The U.S. created a national missing children database almost 20 years ago. Canada has still not developed any such tools. I agree with you in saying that a five-year sentence should be a minimum for child kidnappers.

Should we not take things even further when it comes to tool development, and information centralization and collection? I feel that disappearances in Canada do not have enough people working on them. Such cases receive attention for only a few weeks. I am thinking of Cédrika Provencher, who was kidnapped in Trois-Rivières. Her case received attention for a year. Resources were committed and then, all of a sudden, the police began to invest less effort.

In addition to adding minimum sentences to the Criminal Code, should we not take things even further in order to manage missing persons cases — especially those involving children — much more seriously?

[English]

Mr. Wilks: I completely agree with you, senator. I believe there is a great opportunity to have a national data bank, probably through the RCMP. It would be the most logical for that to occur.

One of the more evident issues that we have had in recent years is the Pickton issue with all the missing females. That, by itself, arguably could have been 49 kidnappings, because, as defined in the Criminal Code, it is ``held against your will,'' and at some point in time those women were held against their will. However, Mr. Pickton was not charged with kidnapping, not once.

I believe there is a great opportunity to hold some form of a data bank that keeps it alive, so that there is an annual or biannual review, and so that at least it comes forward and there is a recognition that this person is still missing, and whether there is any new data, either in Canada or abroad.

[Translation]

Senator Boisvenu: When we were studying the bill to amend the sexual predator registry in 2011, many witnesses talked about a DNA data bank for missing persons, including children. When a child goes missing, no DNA data is available for them, but it is available for their parents. It would be easy to establish connections and create that DNA data bank, so as to make investigations easier. The main goal is not to sentence the criminal, but to find the child alive. That is what parents want.

In addition to amending the Criminal Code by setting harsher sentences, should we not have those tools — such as the parents' DNA data when a child goes missing — to be able to trace the child quickly if they are found dead or an object belonging to the child is found at the kidnapper's home?

[English]

Mr. Wilks: I completely agree. Thank you for that, senator.

The best example I can give is Michael Dunahee. Let us make the argument that he is found alive. At age 4, when he went missing, they may have altered his entire — not personal appearance, although that would have happened, but certainly those who took him could have manipulated him to another name. He would not know who he is. Yet, if we had a DNA data bank, we would be able to prove it.

Senator Jaffer: Could I ask a supplementary question on the DNA data bank? I am a senator from B.C., and I know that in B.C. there has been a lot of discussion about collecting DNA from every child. How would you propose that we have a DNA data bank?

Mr. Wilks: If you were going to do it with every child, I would suggest that at an early age, through agreement with their parents — because of course there would have to be agreement with parents — that you collect some form of DNA. The easiest would be a blood sample. Most children have to go in for some form of medical procedure early in life, when they are getting their shots at age one year, two years, or six months. There may be an opportunity there to collect a data bank, where you have every child in Canada, bar none, and that could potentially be held in a national data bank with the RCMP.

Senator Jaffer: I want to thank you for being here and thank you for your presentation.

When you mentioned those three young children — Michael, Mindy and Kienan — all British Columbians remember that clearly. Of course, the families suffered, but the whole province suffered. No one wants those kinds of incidents, and no one is for a minute saying there should not be punishment.

I have a few questions for you. My first is with regard to the missing women. You said that Pickton was never charged with kidnapping. He was charged with several murders and it may have also been that the women went there first consensually. We do not know the facts.

I want to be clear that this man will be in jail forever. He has the maximum sentence. Justice has not been light on him, and should not be, not for a minute.

According to the 2009 Missing Children Reference Report, 20 per cent of the reported stranger abductions — and I understand this bill is about stranger abductions — involve victims who were either 16 or 17 years old. However, your bill, if I understand it clearly, only relates to 16 years and under. In your opinion, should the bill be amended to include 17-year-olds as well?

Mr. Wilks: If you look at the Criminal Code in relation to sexual assault, and anything else referred to in the Criminal Code, it normally refers to 16 and under, so it was to remain consistent with the rest of the Criminal Code.

Senator Jaffer: I am the critic on this bill. Obviously everyone agrees with the spirit of the bill. The challenge I have is that there is already great punishment, and so there should be. Some commentators have argued that Bill C-299 is unnecessary. For example, former Chief Justice John Major noted that the courts generally give even a greater sentence than five years. The normal sentence is 10 years in cases of stranger kidnapping, with a five-year minimum. What I have difficulty with is how that is a deterrent, because the courts are already giving the greater sentence.

Mr. Wilks: If we refer to section 279(1.1), where we have put in a mandatory minimum for anyone who kidnaps a person with a firearm or is associated with a criminal organization, I believe they overlooked one simple thing. If someone is going to kidnap a child at the age of three, they will not use a firearm; they are not going to need to use one. They probably will not be associated with a criminal organization. However, having said that, I am sure that has happened from time to time.

We are saying that if you use a firearm or belong to a criminal organization, there will be a mandatory minimum. However, if you do not use either one of those, there is nothing. For argument's sake, you could get probation for this.

In the case of Regina v. Hopley, presently before the courts, they dropped the kidnapping charge and went with abduction. Why they did that, I do not know.

Having said that, there is no mandatory minimum, so the judge in this case, where there will be no other charge because there is no proof of sexual assault or anything else, will at some point make a decision based on what is in the Criminal Code right now. The Criminal Code has no mandatory minimum for the abduction of a child, yet if he had used a firearm it would have been automatically five years. Had he been part of a criminal organization, it would have been automatically five years, but because neither of those fit, there is no minimum.

The Chair: Is there a legal distinction with respect to kidnapping and abduction? How do they measure the differences between those?

Mr. Wilks: That is a good question. From the history of the Criminal Code, abduction, in its infancy, was reserved for parental abduction, someone who knew the child, whereas kidnapping was meant for someone who was not associated with the child, such as a person of authority. They brought in abduction to recognize that there are different forms of taking a person. As a result, many times the courts lean toward abduction convictions as opposed to kidnapping. I am not qualified to explain why they do one or the other; that is the decision of the courts.

The Chair: They obviously broadened that definition in the Hopley case.

Mr. Wilks: They certainly did.

Senator McIntyre: In introducing Bill C-299, and again at second reading in the House of Commons, I note that you referred to the kidnapping of three-year-old Kienan Hebert in Sparwood, British Columbia. As you pointed out, Randall Hopley was charged and subsequently pled guilty to two serious and indictable offences regarding the kidnapping. I understand that his sentencing is set to take place in June 2013.

Are you aware of any other cases of this nature awaiting sentencing in Canada? Was the Kienan Hebert case very much in the back of your mind when you sponsored this bill?

Mr. Wilks: Yes and yes. I am not aware of any other cases that may be before the courts across Canada. Kienan lives about two blocks from where I do in Sparwood, so certainly it was in the back of my mind.

[Translation]

Senator Rivest: I have a bit of an issue with the very principle of minimum sentencing. It seems to me that, in the case of child kidnapping, judges are already imposing longer sentences than what you have proposed in the bill. So what is the point of the bill? That is clearly the question.

Of course, the goal is to reduce child kidnappings — a horrific crime in every respect — and everyone agrees with that. How can a mandatory minimum sentence — which is even shorter than what the courts are already imposing — help achieve the common goal?

Senator Boisvenu talked about some of the techniques police officers can use. It might be a better idea to turn to these techniques when it comes to information, parents' vigilance and those types of programs. How will a five-year minimum sentence reduce the risk for children?

[English]

Mr. Wilks: You are correct, senator, that it does not reduce the risk because criminals do not read the Criminal Code, I am sure, before they commit any crime. If that were the case, they probably would not commit any crime in respect to some offences.

Let us look at the most serious first degree murder. If someone was about to commit premeditated, first degree murder and thought ``I am going to jail for 25 years minimum, so maybe I should not do this,'' it does not stop people from doing it daily.

Regarding the specific question about sentencing by judges, there is evidence that judges just provide probation for the same crime. I mentioned one here as well, where the kidnapper received open custody and probation.

There is the argument to be made that in some cases the judges provide an adequate sentence, but in other cases they do not. For the parents and those affected by the crime, they want to see an adequate sentence. I believe that if we have set the precedent within section 279 that this is already a mandatory minimum but you have to use a firearm or you have to be part of a criminal organization, why is there not one if you do not use those two criteria? You just grab the three-year-old. I do not need a firearm to grab a three-year-old; I can do it fairly well without one. I should not have to belong to the Hells Angels to grab a three-year-old and get a minimum sentence.

There is a little inequity in section 279(1.1) that needs to be cleaned up, and I believe this bill does that.

[Translation]

Senator Rivest: Let us say a judge has imposed an unreasonable sentence — as has no doubt happened in the past — considering the severity of the crime. Our legal system allows the Crown to appeal the sentence. So what is the problem?

[English]

Mr. Wilks: First of all, the Crown rarely will appeal to the courts to reverse a conviction in which they want a lesser conviction. That normally will happen by a defence team as opposed to Crown.

In this particular case of the kidnapping of a child, I believe the starting point should be five years and then you can go from there, because the maximum is life. However, as I mentioned, there have been instances where probation is provided and given by the courts. Rarely does the Crown appeal it, for danger that it would be lessened. They would prefer to stay where it is, unless there are some very aggravating circumstances that go with the charge.

[Translation]

Senator Dagenais: Mr. Wilks, thank you very much for being here. It always helps to hear from a politician who is also a police officer when we are talking about the safety of Canadians, and especially children.

Can you establish a comparison between sentences handed down for serious crimes and sentences countries usually impose?

[English]

Mr. Wilks: Sure, we could use a couple. A serious crime to me would be sexual assault or break and enter with intent to commit an indictable offence such as sexual assault. A minor offence would be shoplifting or causing a disturbance. Some would argue in this country under the Controlled Drugs and Substances Act that possession of small amounts of marijuana is a summary conviction offence, so is a minor offence. If you compare the two and the sentencing that goes with them, the sentencing elevates as the crime elevates in severity. I believe there is improvement to be made in the Criminal Code of Canada. There are times when I look at some sections of the Criminal Code and I shake my head and wonder what was going on that day, but I am sure there was something going on. There are other times when I think they got it right.

As a retired police officer, the frustration that I found and I think most police officers find is that this place, as in the Senate and the House of Commons, is the actual creator of laws but sometimes it forgets that the enforcers of the law read it differently from what the intent may have been. As a result, we have, from time to time, some interesting case law that comes before us that restricts police officers from doing the job that was intended. That is straying from your question a bit, but for the most part it elevates as the crime gets worse.

I am not convinced that we should not go further, but that is my look at it as a former police officer.

[Translation]

Senator Dagenais: Do you not think negotiations between Crown prosecutors and defence attorneys could potentially lead to attempts to reduce the seriousness of the accusation and avoid what could be referred to as a minimum sentence?

[English]

Mr. Wilks: Certainly, it happens all the time where defence and Crown get together and do a plea bargain. It is happening as we speak in some court across Canada. That is one thing that you cannot control. Historically, depending on the gravity of the crime, in a case like R. v. Hopley, it is highly unlikely that the defence and Crown would come to a conclusion that they would want to plea bargain down to a lesser crime. Having said that, it does not stop them from doing so.

A mandatory minimum would put some severity to the crime and it would also stop plea bargaining. What will you plea to? Will you throw the charge out? That would look good.

Senator Baker: Congratulations to MP David Wilks for his efforts in bringing this bill forward. It certainly involves a lot of work and I imagine he looks forward to having the bill passed.

As I look at the bill, a couple of things stand out in my mind. I do not know if I agree that your conclusions are correct that the age of 16 years is in compliance with the Criminal Code. You are correct that for sexual touching in the Criminal Code it says younger than 16 years of age. Other sections under sexual assault deal with children down to the age of 4, 5, 6, 7 and so on. However, if you look at any other section of the code, such as child pornography, it is under 18 years of age. If you look at the Youth Criminal Justice Act, it is under 18 years of age. If you look at any of the sentencing provisions under section 2, it is under 18 years of age. The first question that jumps out at me is your additional sentence that says:

In imposing a sentence under paragraph (1.1)(a.2), the court shall take into account the age and vulnerability of the victim.

That is already in the Criminal Code. It is in the sentencing provision as an aggravating factor, not just to take into consideration. It is an aggravating factor for what? For under 18 years of age.

The first thing that jumped out at me is why would you need to say ``the court shall take into account the age and vulnerability,'' when we already have in the code that an aggravating factor in sentencing on kidnapping is if you have someone under 18 years of age. That is my first question.

Mr. Wilks: Thank you very much for that question. As well, the Criminal Code defines ``consent.'' Consent cannot be given by any person under the age of 12, as we know. There is a question within the courts all the time as to when consent can be given. Some argue that it cannot be given under the age of 18 until you have reached the age of majority. Then we dropped it with sexual assault and sex-related charges in the Criminal Code. We have varying degrees of when consent can be given; some say 16 and in fact some say 14. They do not go any lower than 12.

Senator Baker: You cannot charge under 12.

Mr. Wilks: You cannot charge a person under the age of 12 with a criminal offence.

There are varying definitions by learned judges across this country as to when age of consent occurs. That is why, in the Criminal Code, we have such a muddle of 18, 16 and 14. I looked at the majority of what the Criminal Code defines and it seems to be around 16.

I understand that is not the answer you are prompting from me, but I can refer to abduction under section 282 and find where it says under the age of 14. Then you would wonder where they come up with that one.

Senator Baker: To answer my question directly, though, concerning the sentencing provisions on a charge of kidnapping, it says that it is an aggravating factor if someone is under the age of 18 and they are kidnapped, which means your sentence goes way up here.

The second question is in relation to your intent in bringing in this bill. The courts will look at the first charge after it is passed. They will say you look at that provision under kidnapping and you see the offence is A, B and C, and then it includes minimum sentences. As you say, a firearm is defined as any barrelled instrument that shoots a projectile, so it could be a BB gun, generally speaking. Then it says ``criminal organization,'' keeping in mind a definition of a criminal organization is not the Hells Angels but any three persons who get together for one purpose. The minimum sentence is five years in jail, and then there is a minimum for a repeat of seven years. There is a minimum of four years after that for another provision. What you are doing is adding a new subsection.

Is it your anticipation that if someone is found to have been guilty of kidnapping and the person kidnapped is under the age of 16, in addition to other minimums that are in that section, this minimum will also kick in? In other words, if a firearm were used or if the criminal organization involved three people who got together for a common purpose — five years minimum — would you then anticipate there would be an additional five-year minimum because the person was under the able of 16? I think that is a key question, Mr. Wilks, because the courts will have to look at it and ask what you meant. Did he mean two separate offences or did he mean only one?

Mr. Wilks: Good question. However, having said that, under normal circumstances within the court system the judge will make a decision whether he wants to make that conviction consecutive or concurrent. If he made it consecutive, then of course if the person used the firearm there would be a five-year sentence, and then there would be an additional five years because the person was under the age of 16 and it was defined as in the bill.

If the judge decides to go concurrent, then it would not matter because it would just be concurrent with the first conviction, correct? I am not here to determine what a judge would decide as a conviction because I cannot determine, nor does this bill say, that it needs to be consecutive to another charge. However, any learned judge in the country would consider consecutive or concurrent.

Senator Baker: However, you are here to say whether or not this is a separate charge under this section and that it is up to the judge then in pronouncing sentence whether it shall be served consecutively or concurrently, just like the multitude of other charges someone may be confronted with, but your intent in passing this bill is to make this a separate minimum offence in which, if tied in with the use of a firearm, it would be a 10-year mandatory minimum sentence for that offence.

Mr. Wilks: Yes, and I guess maybe the person should have considered using a firearm.

Senator Baker: Could I go on the second round, Mr. Chairman?

The Chair: Yes, although I was quite generous to you on that first round.

Senator Joyal: Thank you, Mr. Wilks, for your initiative. Could you tell us, for the benefit of the knowledge of the members of the committee, the name of the case that you refer to in your brief whereby the babysitter kidnapped a child and later the child was returned unharmed and then you conclude the accused was sentenced to open custody and probation? I would be very much interested to know the details of the case and evaluate for myself why the sentence was ``that low'' and why the Crown did not decide to appeal the sentence.

It seems to me on the basis of what Justice Major said that the courts generally are very severe in determining sentences in relation to kidnapping. Why in this case did it seem to go in another direction? In all fairness for the details of the case, if you could provide the names of the parties I would look into the case and see what could have explained the sentence that was pronounced.

Mr. Wilks: I shall provide that information.

Senator Joyal: I am sure you are aware of Justice Major's testimony in May 2012 in the other place when your bill was being studied by MPs. He mentioned his preference for an amendment to the code that would be targeted to the sections on sentencing principles, which are essentially related to aggravating factors or circumstances. Why did you not follow the advice of the judge to concentrate your amendment on that section of the code, the amendment that you would want to have to ensure the sentence would be appropriate or proportionate to the abhorrence of the crime? Why did you not follow the advice of Justice Major in that regard? As I read his testimony, he said a better way to reflect society's aversion to such kidnappings would be to incorporate kidnappings of minors into tougher ``aggravating circumstances'' outlined under sentencing guidelines in the Criminal Code.

That was his preferred approach on the basis of the expertise he has in the field of criminal justice. Why did you not follow the advice of the judge and instead prefer to amend the code the way you are proposing now?

Mr. Wilks: Thank you for the question. I believe that section 279(1.1) has missed an opportunity to recognize what is already there. We have already implemented, through previous sittings of this place, a mandatory minimum when it comes to firearms or an organized crime. In most cases, that does not involve a person under the age of 16; it just does not, so we default to abduction all the time. We created that separate offence in the code. Do not ask me why we did that, but we did.

When the learned judge gave testimony at committee, he also said that this was not a bad idea either. He just questioned whether it should be put in as an aggravating circumstance.

My police instincts kick back at me all the time when this happens, and I think it all sounds fine in words, but we need to put it into practice too. Sometimes that just does not happen. We can talk about aggravating circumstances, but I can give honourable senators examples when I have given evidence on a variety of charges, as high as murder and as low as causing a disturbance, where there was an aggravating circumstance. However, at that given time and that particular judge, he or she decided it was not aggravating enough.

Now we have to get into a definition of ``aggravating circumstance,'' and that can cause a whole bunch of mitigating circumstances, which is why I did not agree with the witness. I felt there is no definition of ``aggravating circumstances.'' If there is, I would like to be led to it. We all have our own determination in this room of what an aggravating circumstance may be, but the judge does not necessarily have to adhere to that aggravating circumstance.

Senator Joyal: Yes, but it seems to me that in that particular case the aggravating circumstance is very clear. It is the fact that the person is under the age of 16, period. You do not need a long evaluation to establish if that person was under 16 years of age or not. That itself is the aggravating circumstance, the fact that the person who has been the object of the kidnapping is of course a person under the age of 16. It seems to me that it is easy for a judge to appreciate if he has before him a person who is charged with that particular crime, maybe with other crimes, as Senator Baker has mentioned, like with the use of a firearm or being part of an organized crime group. That element, in my opinion, is as easy to evaluate as if there was a firearm in the crime that is under the consideration of the court.

I wonder if you are more distrusting of the capacity of the judge to evaluate the case and so you prefer to put the strict minimum, whereas the approach proposed by Justice Major is one that leaves it to the courts to appreciate the overall circumstances, besides the fact that the child is under the age of 16. Am I exaggerating my interpretation?

Mr. Wilks: No, you are not at all. I would suggest to you that, from the perspective of a retired member of the RCMP vis-à-vis the court system, there will always be some speculation between police officers and the court system as to whether the appropriate sentence was provided. I do not think you will get an argument on either side as to whether that was appropriate or not.

In this particular case, I truly believe that there was something overlooked in section 279(1.1). It perplexes me to say that if you use a firearm it will be a mandatory minimum and if you belong to a criminal organization there will be a mandatory minimum, but if you do not have either one of those and you grab a three-year-old child physically, scare the bejesus out of him, do not sexually assault them, do not do anything, just took them, that that in itself is not worthy of a mandatory minimum. It confuses me how we got to that point. Maybe someone was in this house when that happened. It happened, and we can probably tell you the date when it happened.

In fairness to all children who are kidnapped without the use of a firearm and without the use of a criminal organization, the kidnapper should be given the same severity as if you were to use those two. That is all I am saying under section 279(1.1).

Senator Fraser: There is no mandatory minimum for abduction. Mr. Hopley pleaded guilty to abduction.

Mr. Wilks: Yes.

Senator Fraser: If your bill becomes law, why would it not result in a significant number of plea bargains where people decide to plead guilty to abduction rather than to kidnapping because there is no mandatory minimum?

Mr. Wilks: Thank you for asking me that because I do have an opinion on that. In my opinion, abduction was created because when kidnapping was the only source of conviction within the Criminal Code, it made it a difficult decision for a judge when there was a kidnapping of a child because of the custodial issue. They created abduction in the Criminal Code for that reason. That was the initial reason for it — abduction under custodial issues of a child.

The courts took it a little further, and then Crown and defence counsel determined that they could stay a charge of kidnapping and put it under abduction. I am not a lawyer, so I do not know why they would do that, but if we read the definition of kidnapping as opposed to the definition of abduction and its true intent, there is a clear difference.

There is another example: If you are a policeman, you are thinking, ``Let us flip a coin and figure out which one the courts will more likely accept.''

Senator Fraser: We are where we are with the courts. I will use the example of the fact that the kidnapping charge, I believe, was dropped.

Mr. Wilks: Yes, it was.

Senator Fraser: I am suggesting that what you are doing with this bill is creating an incentive for that to happen more often. While you were at it, why did you not fling in a mandatory minimum for abduction?

Mr. Wilks: That is a very valid question. I truly do not believe that a person that I would define in the bill as a ``stranger'' — so not a parent, not a guardian, not a person under the care of — should fall under the form of kidnapping because the true intent of kidnapping, in its truest form, was ``kid napping,'' so kidnapping a kid. That is how it came about. To try and put a mandatory minimum not only into the kidnapping but also to abduction, then we are going down a real slippery slope.

I believe at end of the day — I cannot speak for Crown counsels across this land because they do a phenomenal job daily — you have to look at what the true charge would be. We, in this place, have created a problem by having a dual standard. I would ask anyone in this room to define the difference between kidnapping under section 279(1.1), or 279, and then go to section 281.

Senator Fraser: I will yield to Senator Baker on that.

Senator Baker: The elements are different.

Mr. Wilks: The elements are certainly different.

The Chair: We have very few minutes left. We have four senators who would like to get in a quick question, and I urge them to be quick and the responses the same.

Senator McIntyre: After Bill C-299 was introduced in the House of Commons, it was then referred to the Standing Committee on Justice and Human Rights for study. I note that the committee amended the bill as it relates to kidnapping by a stranger. Are you aware of any other amendments?

Mr. Wilks: No. They were very concerned with the word ``stranger,'' so it is defined as it is elsewhere in the code, not a parent, guardian or person under the care of that child. I am not aware of any other amendments.

Senator Jaffer: I will just make a comment on the question I had asked you and then ask you another question. The statistics I have in front of me say that 20 per cent of reported stranger abductions have involved 16- and 17-year-olds. I still believe we should look at an amendment, but I will leave that.

One of the things that is very clear is how Crown counsel are laying charges, or the administration of charges. Nothing in this bill will change that. Am I correct?

Mr. Wilks: I have two things to say in that regard, if I may. One is with respect to mandatory minimums. Certainly, if found guilty, it does bind the judge. That in itself would change something that is not there right now. The judge is not bound.

One can argue, as Senator Baker has brought forward, that circumstances will be brought in on the determination of what that conviction would be, but there is nothing binding the judge from doing that. That answers that.

The other thing I would like to bring to light is with regard to 16- and 17-year-olds and the 20 per cent. Do not forget that a lot of the 16- and 17-year-olds — I have investigated some of these — are females taken against their will for sexual assault at that age. There is a reason for it at that age. Most men start to be extremely aggressive to women at that age. Under that age, although there are times it happens, it is certainly not acceptable in any form, but it becomes more grave under the age of 16.

I would challenge everyone in this place to also look at who was convicted or charged with that offence of the 16- or 17-year-old. It may have been a 16- or 17-year-old who was also charged with it, because of the way the Criminal Code is set up.

Senator Baker: I would like to congratulate the witness on his answers as well on his bill.

I do not know if you can answer this question, witness, but I have to ask it. The second portion of your bill deals with imposing a sentence. As the former justice pointed out during the committee hearings, and as Senator Joyal pointed out, perhaps sentencing belongs in the sentencing provision of the Criminal Code.

Your new law will say that in imposing a sentence the court shall take into account the age and vulnerability of the victim. It was my initial question to you, and I do not think you have answered it and you do not have to if there is no answer to it. However, presently in the Criminal Code, in 718.2(a) (ii.1) an aggravating factor is ``evidence that the offender, in committing the offence, abused a person under the age of eighteen years . . .'' Does that not say the same thing as you are saying here, and is not what you are saying just redundant? Is there an answer to that question? Under 18 years of age, aggravating factor, the offence is committed, and all you are asking for here is that the judge ``take into account.'' What is already in the code is more substantive than what you are suggesting in your bill. Why would you put it there?

Mr. Wilks: I believe I can answer that. If we look at Regina v. Hopley and the charges laid against Mr. Hopley, whether he is convicted or not in June of this year is up to the court's decision. However, there was no charge of sexual assault. There was one charge, and I believe that fell to abduction of a child under the age of 14. I believe that is the charge they laid.

The argument can be made that there are no aggravating circumstances, or none that can be proven because the child, who is 3 years old, as most of you know, probably does not know the difference between a truth and a lie and therefore cannot give evidence; therefore, they will only be able to substantiate the evidence that is before them. The only true evidence that they will have before them in this case is the abduction. The argument could be made that there are no aggravating circumstances.

Senator Joyal: As Senator Baker pointed out, the reason you introduce it in the definition of the offence instead of in the general sentencing principles is because the vulnerability of the victim in the general sentencing principles is a factor that is very helpful in determining a sentence. I would agree personally to have that in 718.2, as Senator Baker has mentioned, because not only is the age a factor but the vulnerability of the person is as well. Since you mention a person under the age of 16, a person of 5 or 6 years old in comparison with someone of 14 or 15 years old, both of whom would be covered by your proposal, are in a different position in front of an adult who has control over them. In other words, that element of consideration by the court would be very helpful to have in 718.21(a) because it is an aggravating factor that is very important to be considered by court. In restricting it to where you have put it in your bill, you weaken the code of an opportunity to increase an important element to be considered by a judge when evaluating the length of a sentence.

Mr. Wilks: Thank you very much for your comment.

With regard to aggravating circumstances, as Senator Baker had stated, historically that involves another type of crime, shall we say, and the age of a child is not detrimental to the decision of a judge to determine whether that is an aggravating circumstance. He or she may so choose to take that, but it is not required of them as defined in the Criminal Code.

The Chair: Thank you, Mr. Wilks. It is very helpful to the committee with respect to the deliberations on your bill, and I compliment you as well on the introduction of the legislation. Thank you for appearing here today.

We will meet again next Wednesday when we will begin our deliberations on Bill S-16, the contraband tobacco legislation.

(The committee adjourned.)


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