Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 37 - Evidence for May 22, 2013
OTTAWA, Wednesday, May 22, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to
which was referred Bill C-299, An Act to amend the Criminal Code (kidnapping
of young person), met this day, at 4:17 p.m., to give consideration to the
Senator Bob Runciman (Chair) in the chair.
The Chair: Honourable senators, good afternoon. I would like to
welcome colleagues, invited guests and members of the general public who are
following today's proceedings of the Standing Senate Committee on Legal and
Constitutional Affairs. Today we are continuing our consideration of Bill
C-299, An Act to amend the Criminal Code (kidnapping of young person). This
is our third meeting on the bill.
To begin today's public hearings, I would like to introduce Michael
Spratt, a representative of the Criminal Lawyers' Association; and Indira
Stewart, a representative of the Canadian Council of Criminal Defence
We also have with us the Honourable John Charles Major, former Justice of
the Supreme Court of Canada, appearing by video conference from Calgary,
Alberta. I understand you do not have an opening statement.
Hon. John Charles Major, Former Judge of the Supreme Court of Canada,
as an individual: That is correct. I may have a concluding statement.
The Chair: We will give you that opportunity.
Mr. Spratt, the floor is yours.
Michael Spratt, Representative, Criminal Lawyers' Association:
Thank you very much, Mr. Chair. I apologize at the outset that I have a
cold. If I mumble anything or if it is hard to hear, let me know. I should
also say it is a pleasure to be here.
I am a criminal lawyer and I practise here in Ottawa. I have appeared at
all levels of court and represented all types of offenders dealing with all
matters of different offences. I am here representing the Criminal Lawyers'
Association. As I have said before when I have had the opportunity to appear
on other occasions, the Criminal Lawyers' Association is in favour of
legislation that is modest, necessary, fair, constitutional and, apt for
today's discussions, supported by the evidence.
Unfortunately, the CLA cannot support this bill as currently drafted in
that it is not necessary, but more importantly the use of mandatory minimum
sentences is not effective or supported by the evidence and ultimately leads
to detrimental consequences in terms of the administration of justice.
Dealing briefly with necessity, if one reviews the case law with respect
to this type of offence, more often than not, punishments in excess of a
minimum are routinely imposed.
I would like to move on to talk about evidence-based policy. I should
first start by saying that the Criminal Lawyers' Association agrees with the
goals of the legislation, but not necessarily with the mechanisms by which
those goals are implemented. Mandatory sentences do not deter offenders, do
not stop offences from happening or afford an increased level of protection
to the public.
In order to keep my time, I would urge the committee — and I will not
review them in detail — to consider some of the empirical evidence from
criminologists on mandatory minimum sentences. Look at evidence given both
in the house and at this committee with respect to other bills that have
included mandatory punishments and the November 2010 report from the
Canadian Centre for Policy Alternatives. Look south of the border to the
experience there as reflected by Marc Mauer and The Sentencing Project and
at the work of eminent criminologists in Canada that deal with those issues.
Quite simply, the evidence demonstrates that minimum sentences do not
deter one from committing a crime, and it is our position that when the
government wishes to change the Criminal Code, those changes should not be
done lightly. They should be supported by the evidence. One should foster
evidence-based policy when making the changes. Indeed, when I review the
testimony from the house on this bill and the testimony that this honourable
committee has heard thus far, there has been no evidence about the utility
of minimum sentences generally and specifically the utility of minimum
sentences as it relates to this type of offence.
Our concern about the use of mandatory minimum sentences will not be a
surprise. We have made submissions about that in the past. Our concern is
that they run the risk of being unconstitutional and generating other issues
in criminal justice. Of course, it goes without saying that sentences must
be carefully tailored to both the offender and the offence, and that is an
historic and long-standing principle of common law jurisdictions. Minimum
sentences undermine this principle due to their inflexible nature and
injustice might not be the intent of the legislation, but it is quite often
On the practical problems of which I speak, I would first like to talk
about the lack of judicial discretion. Mandatory minimum sentences remove
judicial discretion which, in our view, is an important pillar of our
criminal justice system. When one looks at Mr. Kyle Seeback's comments on
May 31, 2012, dealing with this bill and the exception being built into this
bill in relation to mandatory minimums, he said:
I think we have thought it through. People have come up with one or
two examples that would be extremely rare in application. Every time
we've brought witnesses here to this committee, members on the other
side have said that they have so much faith in our judges and that we
have the best judicial system in the world. Quite frankly, I think a
judge is going to be in a position to be smart enough to figure out
whether this section applies to somebody who abandoned their child, and
30 years later, kidnapped them. I think a judge can figure that out.
That is the point when it comes to sentencing as well. Judges are in the
best place to impose just sentences. They are the most familiar with the
facts of the offender and of the offence, and they are situated in the
community. Judges are well trained, and if a judge is wrong we have a good
appeal mechanism to correct any errors.
That shift in discretion leads to practical problems because it is not an
elimination of discretion; I call it a shift. That discretion, which would
once be afforded to the trial judge to impose a sentence that was
appropriate given the totality of the circumstances, now shifts to the
police officers who are charging and the Crown attorneys dealing with the
minimum penalty sections. The discretion is not removed; it simply shifts
into a form that is not transparent or accountable and is not visible to
members of the community. That is a reality I see in my practice every day.
Minimum sentences are used to bargain. When there are cases where the
injustice is manifested, Crown attorneys will use the discretion they have
to work around the minimum sentence, which is not ideal because it is not
reviewable or transparent.
The second deleterious effect of minimum sentences is a result of the
taxation on the justice system. What has happened — something I see in
Ontario and have heard about across the country — is that our justice system
is becoming overworked. Minimum sentences lead to more matters going to
trial and fewer matters resolving in an appropriate way. That has not only a
financial cost but a practical cost both to the participants in the justice
system and most importantly to the victims of the crime themselves who, if
the matter goes to trial, are not spared from what can be a re-victimizing
experience of testifying at a preliminary inquiry and a trial.
The bottom line is that mandatory minimum sentences are not effective.
They are a simple way of looking at a complex problem. In my submission they
are a myopic way of looking at that problem. If the intent of the bill is to
decrease the kidnapping of young people, to protect young people, the
evidence shows that mandatory minimum sentences will not accomplish that
goal. They will accomplish those deleterious side effects that I would be
happy to speak about in more detail: the increase in court time; the
potential for re-victimization; the shift in discretion from judges to
Crowns and police; and the elimination of judicial discretion, which is a
pillar of our justice system. Of course, one must always remember that as
sentences increase — and if they are applied in an unfair manner — prospects
for rehabilitation and reintegration can decrease, which can lead to
recidivism and a situation that is more unsafe for the public at large.
I would urge this committee to look at the evidence, the studies, hear
from experts who can deal in that evidence, weigh the pros and cons, but
most importantly give sober second thought to the issue of mandatory minimum
sentences. They exist in the code; they are there already. In some cases
they have been found to be constitutional. That does not make them good
policy and that should not give them a rubber-stamp to all mandatory
minimums that follow.
I would be happy to answer your questions.
Indira Stewart, Representative, Canadian Council of Criminal Defence
Lawyers: Good afternoon, honourable members of this committee. I am
delighted to have the opportunity to address you on Bill C-299 on behalf of
the Canadian Council of Criminal Defence Lawyers. I will call it the CCCDL
The CCCDL, founded in 1992, is an organization that offers a national
perspective on criminal law issues. I am a practicing lawyer in Toronto. I
practice exclusively criminal law at Simcoe Chambers and I am also the
mother of a baby boy. As a result, I understand full well that the
kidnapping of young children is a terrifying prospect and like all of you, I
want to ensure that the streets of our country are safe for our kids.
That being said, it is the position of the CCCDL that while Bill C-299
has a worthy purpose — preventing the kidnapping of children — the bill does
not serve that purpose. My brief remarks today will focus on two points.
First, it is our position that the bill is not necessary and, second, the
bill is overly broad and it risks capturing people not intended. Namely, the
groups we are most concerned about are women, Aboriginal people and the
I will not speak today in detail about mandatory minimum sentences, given
Mr. Spratt's thoughtful remarks and Senator Jaffer's remarks earlier this
year on that issue. I will only add that for all of the reasons stated by
both of them, the CCCDL is opposed to mandatory minimum sentences.
On the subject of the bill not being necessary, we know, obviously, that
the kidnapping of children by strangers is a very serious issue, but we also
know, from the testimony at the House committee, that it is a very rare
It is even rarer for kidnapping charges to be laid on their own. As we
know, regrettably, they are often accompanied by other offences.
In preparation for my testimony today, I conducted a case law search of
cases across the country dating back approximately 20 years, and there were
only a handful of cases dealing with stranger kidnappings or abductions. I
also spoke with many senior counsel in the defence bar, and not one of them
had ever dealt with a stranger the kidnapping case.
When these cases do occur, they are very serious, but there is no
evidence to suggest that, when they do occur, judges are showing leniency.
As the Honourable Justice Major testified before the house committee, the
range of sentences for these kinds of cases is approximately 10 to 15 years,
well above the minimum sentence of five years being proposed. Judges, of
course, have the option of a life sentence in these cases, and that is a
reflection of the gravity of this offence.
In the rare cases where a sentence under five years is imposed, there
are, in every case, mitigating circumstances to explain it. It is exactly
for this reason that trial judges, who have the opportunity to hear all of
the aggravating and mitigating circumstances, are in the best position to
determine a sentence. If there is any concern about a trial judge getting it
wrong, Crowns can and do appeal sentences that they believe are unfit.
To turn quickly to my second point, it is the position of the CCCDL that
the bill, as written, does not serve its purpose. It is clear, from a review
of Hansard, that Mr. Wilks' intention was to target strangers who abduct
The discussion about the bill from its supporters focused almost
exclusively on psychopaths and pedophiles, men who kidnap young children to
cause them harm or for their own sexual gratification. As it is currently
worded, there are many people who will be caught by this bill who are
outside of that group.
The CCCDL has grave concerns about the potential impact of this mandatory
five-year minimum on groups who are already vulnerable and overrepresented
in our justice system, namely Aboriginal people, women and people suffering
from mental illnesses.
Both the Criminal Code and jurisprudence from the Supreme Court mandate
that the courts take into consideration the circumstances of Aboriginal
defendants. We all know that, and trial judges are in the best position to
do that. Mandatory minimums are incompatible with the Gladue
principles. There is academic research on this topic that I am happy to
point you towards, and there are potential constitutional issues, in
particular with section 12.
We also know that the mentally ill risk being targeted by mandatory
minimums. Mr. Wilks testified at the House committee and again here at the
Senate committee that one of the groups known to kidnap children are what he
deemed "childless psychotics," and these, he explained, are people who are
either unable to conceive or who have lost a child.
These are people, almost exclusively women based on my research, who
suffer from a mental disorder triggered by a very traumatic circumstance,
and their actions are the result of their illness. These defendants can
often be treated, and, if treated, pose almost no risk to reoffend. These
are people who, in our view, will be unjustly subjected to the mandatory
minimum of five years.
There is a recent Court of Appeal case called Batisse involving a
young, mentally ill Aboriginal woman. She pled guilty to abducting a newborn
The Court of Appeal reduced her sentence from five years to two and a
half, and they did that after a careful assessment of the various mitigating
factors in her case.
She had been abused by virtually every person she had ever known, and, as
a result of these years and years of abuse, she had developed a mental
illness. She then suffered a miscarriage as the result of a random attack.
Her story is horrific. The court found that the defendant's mental illness
played a central role in the commission of her offence and that, in such
circumstances, deterrent and punishment assumed a less important role. It is
our position that these are not one-off cases. We are especially concerned
about women and the mentally ill being caught by a bill like this. I am
happy to discuss that case further. I am a criminal lawyer. I am not an
expert on mental illness or on issues facing the Aboriginal communities, and
so I would encourage you to invite experts from those groups to come and
testify before you about this bill.
It is our position that, as it is currently worded, there is an exception
for parents, and we have concerns, particularly in the Aboriginal
communities and in certain ethnic communities, where family is more fluid
and where more extended family members and family friends play an important
role in children's lives. We have concerns on that front, and we believe
that, before the bill is passed, that issue needs further clarification.
Finally, I want to say that the CCCDL believes strongly in the vital role
of the Senate. We think that, in many ways, you are like a Court of Appeal.
Your job is to dispassionately look at the evidence and to step in or to
offer guidance when the House gets it wrong, and we urge you to do that in
this case. I thank you for the opportunity to be here and welcome your
The Chair: Thank you. We appreciate your appearance here. We will
begin the questions with the sponsor of the legislation, Senator Boisvenu.
Senator Boisvenu: I would first like to thank you for your
testimony. I see you are taking a position that has been the same for the
three years I have been listening to it: you are opposed to minimum
sentences and you leave it up to judges to establish sentencing ranges.
I am going to cite a case that happened in 2012. This was a judge named
Jean-Pierre Boyer, who was trying a fraud case in which senior citizens had
been swindled. He refused to hear the elderly victims explain the lasting
effects of the crime on them. What he said surprised everyone. Translated
into English, his comment was as follows: "I am a management-style judge.
Sitting in a room and spending two hours listening to witnesses — I do not
have the time for that. I make myself available for arguments and all kinds
of things, but not that. That is especially true when it is a fraud case;
there are financial effects, but not physical ones."
I do not think all judges are sensitive to victims' feelings, and the
great frustration victims feel is that they often see a major discrepancy
between the seriousness of a crime that was committed and the sentence. So
for the victims, this gives them some assurance there is a kind of minimum
threshold to recognize how the crime committed against them makes them feel.
I would like to come back to something. You are a defence lawyer, and in
Quebec, regarding Bill C-10, 70 per cent of the population supported
mandatory minimum sentences. I am trying to understand and I would like you
to explain this major discrepancy between the positions taken by defence
lawyers and by the public, by people who say that mandatory minimum
sentences in certain circumstances — sexual offences, child abduction — are
The question I want to ask you is this: how was the consultation of your
members done? How many did you consult? What methodology did you use, and
what percentage of your members came down against mandatory minimum
sentences, for example?
Mr. Spratt: The opposition to mandatory minimums is an
organization-wide position of the Criminal Lawyers' Association. We are
comprised of 1,200 members. In terms of the disconnect between the public's
perception and what actually happens on the ground, I distributed a list of
academic articles and would urge you to read some of them, for example,
Julian Roberts' article from 2003, in the Criminal Justice and Behaviour
publication, a peer reviewed journal, entitled "Public Opinion and Mandatory
Sentencing." More recent work on this issue shows that there is a disconnect
between public opinion and what happens on the ground in terms of the
results after a trial or after a plea.
However, when that public is educated about the facts of the offence and
the facts of the offender and sits through the trials, hears the
submissions, reads the case law and is fully informed, that difference
disappears. Then, there is not that difference between public perception and
the facts on the ground.
The issue is not one of polling and should be governed by polls. We
should be governed by evidence and by an informed public. Indeed, the
studies and evidence have shown that when the public is informed about what
happens in our criminal justice system, their confidence is enhanced in
terms of the procedure and the ultimate results. What one should not be
doing, I submit, is looking at public polls as a way to justify legislation.
Rather, one should be concentrating on the informational component to ensure
that the public knows what the participants in the justice system know.
Senator Boisvenu: When the public sees a judge give a pedophile a
sentence of 45 days in the community — and we saw that in Estrie, 45 days in
the community for assaulting a child — and another judge hands down a three-year
sentence for a similar crime, does that not discredit the justice system in
the eyes of the public? Having minimum sentences for similar crimes gives
the justice system some credibility. This is not a matter of whether it will
have an effect on rehabilitation or not. It will give the justice system
more credibility when it comes to the courts, do you not think?
Mr. Spratt: I suppose there are two ways to deal with the issue.
The first is to impose minimum sentences and set high benchmarks. That might
make the public feel better about what is happening in our courts, but it
would be a disingenuous way of doing because it would not reflect reality or
the evidence and would not accurately inform the public as to what happened.
The second and more preferable option is to educate the public. I have
three children, so this bill is something that I take seriously. When my
child wakes up in the middle of the night screaming that there is a
boogeyman in the closet, I could put a gate in front of the closet and lock
the door to ensure him that the boogeyman will never come out; or I could
rationally explain to the child that there is no such thing. Either of those
options may satisfy the child. One option is intellectually honest and the
second option I suggest is not.
Senator Jaffer: Mr. Major, mandatory sentencing has existed for
many years, but in the last few years this is an option that lawmakers have
been using a lot. You are one of the most respected jurists in the country.
Do you believe that there should be discretion for judges when it comes to
Mr. Major: I am not sure I fully understand your question.
Senator Jaffer: Do you believe that judges should have discretion?
Mr. Major: Yes, I think they should.
Senator Jaffer: Can you explain why they should have discretion?
Mr. Major: I am happy to do that.
I agree with what some of the speakers who have gone before me have said,
and history supports what they have said. However, when you ask about a
judge's discretion, you are putting a case before a person who presumably
has heard other cases. He has perhaps been a trial lawyer. He understands
the system and the circumstances that make almost every case different in
An earlier question dealt with public opinion, which is generally
uninformed. As the speaker said, once they are informed, they may have a
change of mind.
Dealing with the particular issue of minimum sentences, it was pointed
out that I have close to 50 years hanging around courts in one capacity or
another. I cannot think of cases, although there may be a handful, of a
child kidnapper getting as little as five years. In the case that I was
involved in, the kidnappers were young men who each received 15 years. It
was a first offence. It was the kidnapping of a child. Judges respond as the
public do to the horrific nature of that kind of crime.
In the bill before you, there are exceptions for parents where domestic
disputes lead to the father taking the child when the mother has custody.
They carve that out as an exception. Let me say that there are occasions
when it may be in the best interests of the child that he be kidnapped, but
not in the usual sense of kidnapping for ransom of course. If a foster
parent who does not have the security of the exception sees the child being
abused or sees other circumstances that puts the child in peril and acts for
the benefit of the child — he is not looking for ransom — he is subject to a
five- year minimum sentence. That just does not comport with our common
Senator Jaffer: My next question concerns sentencing principles.
When you have minimum mandatory sentencing, it is difficult to balance the
sentencing principles with minimum mandatory sentencing. I would like your
reflections on this.
Mr. Major: We can take some benefit from the American experience.
The minimum sentence has been applied on a number of crimes in different
states that have criminal jurisdiction, and two things happen. When judges
think there is a minimum mandatory, they feel that they have fulfilled their
obligation when they impose the minimum. In a case that deserves ten years
or more, the judge might be fixated by the thought of the minimum being five
years. I would think that history would show over a period of time that when
you impose a minimum, that is the usual sentence. In the kidnapping of
children, five years is an inappropriate sentence.
Bear in mind, as one of your speakers said, that you are not speaking of
a single judge. The trial judge hears the evidence, makes the decision and
gives the reasons. However, unless he follows established principles, there
is the Court of Appeal, which consists of at least three judges, in many
cases five judges, and a sentence appeal can go to the Supreme Court.
Let us just talk about the Court of Appeal. You have four trained lawyers,
now judges, who have spent various periods of their life considering
sentences and you know that punishment is an important part of the sentence.
Reformation is an important part of the sentence. There is more protection
of the public. It is too diverse a problem to think that you solve the
problem by simply imposing a mandatory sentence.
Senator McIntyre: As I understand, Bill C-299 deals with persons
found criminally responsible as opposed to persons found not criminally
responsible due to mental disorder.
Ms. Stewart, you raised the issue of mental illness with certain
offenders. I have to admit that I agree with you. There are cases where
offenders charged with offences like kidnapping or other provisions under
the code such as forcible confinement, hostage taking, abduction and
offences related to trafficking in persons, very often suffer with a mental
disorder so as to exempt them from criminal responsibility. Do you not think
in those cases a sharp lawyer would raise the issue of mental illness as
defined under section 672.1 of the code?
Ms. Stewart: I can indicate there are many cases where a defendant
suffers from a mental illness that falls short of being found not criminally
responsible by a court. Section 16, which lays out the test for not
criminally responsible, requires that a person be suffering from a mental
disorder to a degree that they do not understand the nature and quality of
their act or that they knew it was wrong. It is a very difficult test to
meet, so it is raised in some cases. That test is very rarely met, so there
are many defendants who suffer from mental illness but not to that degree.
The term that is used is diminished capacity. In the Court of Appeal case I
mentioned, Batisse, the woman in that case suffered from severe
depression but was not found not criminally responsible by the courts.
Senator McIntyre: Yes, but surely the criminal defence lawyer, on
his own motion, could ask the trial judge for a psychiatric assessment in
order to determine if the person in fact suffers from a mental disorder to
exempt him or her from criminal responsibility.
Ms. Stewart: He could, but my understanding is that she was
assessed. However, you have to be suffering from a psychotic disorder to be
found not criminally responsible. She suffered from a severe depression
triggered by her many years of abuse and the loss of her child through a
miscarriage as a result of this assault.
Senator McIntyre: Not enough to exempt her from criminal
Ms. Stewart: Not enough to exempt her from criminal responsibility,
but the judge found the mental disorder played a central role in the
commission of the offence. Therefore, her rehabilitation and other factors
had to be weighed in addition to the deterrence and denunciation.
Senator Baker: Thank you to the Honourable John Major for his
presence here today via video conference. We admire the great contribution
that you have made to this country sitting on the bench. Thank you as well
to our two witnesses here who made excellent presentations.
My question concerns the Gladue principles that were raised, but I
would like to direct the question to Mr. Spratt. He represented an accused,
and a judgment was made about two months ago by the Ontario Superior Court
of justice in a case called R. v. Serré,  ONSC 1732. At
paragraph 15 of the judgment, the court goes on to describe the tragedy in
Canadian jails, pointing out the most recent statistics.
Remember, Mr. Spratt, you asked for a conditional sentence in your
submissions on sentencing.
Mr. Spratt: That is right.
Senator Baker: I would like to bring us up to date on the law here
because I did not understand this to be the case, but obviously it is. At
paragraph 15, the judge said:
Section 718.2(e) of the Code requires the sentencing judge to
"give attention to the unique background and systemic factors which may
have played a part in bringing the particular offender before the
courts" (Gladue, at para. 69). However, as clarified in
Ipeelee, at para. 83: . . . Unless the unique circumstances of the
particular offender bear on his or her culpability for the offence or
indicate which sentencing objectives can and should be actualized, they
will not influence the ultimate sentence.
The person got four years in this particular judgment.
Can you explain? This judgment by the Supreme Court of Canada was given
about six to eight months ago, which according to the Superior Court has
changed the principles of Gladue. You litigated the case. Could you
explain the nature of the major change?
Mr. Spratt: Dealing specifically with how Gladue and
Ipeelee apply to the case you referenced, Serré was a case of
immigration fraud which attracted an enhanced importance on the principles
of general deterrence, general denunciation.
Ms. Serré had been specifically deterred and rehabilitated. There was
little risk she would commit any further offence. However, a message had to
be sent strong and clear to the Canadian public that when you are dealing
with immigration, you tread carefully and break the law at your own peril.
It is in some situations like that where the Gladue principles have
the most effect when looking at principles of rehabilitation and
reintegration, and they may play a small role when dealing with offences
that are very serious and demand general deterrence and general denunciation.
The problem in the bill that is currently being talked about is that when
we look at those Gladue principles with a minimum sentence, one can
imagine a variety of cases that may very rarely come before a court. For
example, they may deal with an Aboriginal first-time offender who has mental
health issues, suffered from abuse herself, perhaps had a miscarriage at the
hospital, delivered a stillborn baby and kidnapped a baby from the hospital,
then had second thoughts the moment she walked out the door and returned the
baby. The Gladue principles in that case would be in play but would
have very little impact in the ultimate sentence because the minimum
sentence is imposed. Those Gladue factors, which may mitigate
sentence and cause a sentence to be less than the five years, would not be
able to be taken into account. That would certainly undermine and undercut
what the Supreme Court has told us in both Gladue and Ipeelee.
Senator Batters: Mr. Justice Major, thank you for appearing before
the committee today. I read a media report from The Toronto Star of
the testimony that you gave before the House of Commons committee, and so it
may not capture everything you covered there.
I wanted to bring a case to your attention and get your thoughts on it.
You do not have all the facts.
I am from Saskatchewan, and there was recently case in the small city of
Yorkton. A stranger lured a 10-year-old girl from a summer fair. Prior to
any physical or other type of harm coming to her, she was able to escape
after a relatively short time frame and another stranger found her in a
field, thankfully. This particular individual's name is Melvin Koroluk and
he was sentenced at the end of April. He was a first-time offender and
received two years less a day.
In that particular case, the defence requested a conditional sentence.
The media report indicates that the probation officer wrote that he was
unable to indicate any concrete self-management strategies to ensure that
this type of behaviour would never occur again, except he suggested he never
be around children.
He received, given what you were saying earlier, Mr. Justice Major, quite
a minimal sentence in terms of the circumstances of a stranger abduction of
a 10-year-old child. I just wanted to get your thoughts on that, sir.
Mr. Major: Is the question directed to me?
Senator Batters: Yes.
Mr. Major: It is hard to draw any real principle from a particular
case. You can find cases that stand for almost any principle you care to
There was an earlier observation by one of the senators that the public
does not understand what you describe as and what appears to be a light
sentence, and so they feel better when there is a mandatory sentence imposed.
However, as one of your witnesses pointed out, when the principle of
mandatory sentencing and the principle of, let me call it, discretionary
sentencing is explained, that makes a big difference in the outlook of
I cannot comment on the particular case. I could agree with you that it
seems like a light sentence. I do not know the facts. One must remember that
that case can go to the Court of Appeal. You then have the collective wisdom
of the three appellate judges. I think you can take as a fact that judges
are particularly sympathetic with victims who are children. They do not need
the guidance of a mandatory sentence. I think they react very positively and
severely with respect to any abuse of children.
Having said that, there are cases that do not fall quite within the ambit
of what we usually think of as kidnapping. The earlier suggestion I made is
that there is an exclusion for parents in custody battles and the kidnapping
of the child. There is no exception where a child may be kidnapped — limited
use of the word "kidnapping" — for the benefit of the child. I gave the
example of a foster parent who might not be protected by the exception,
removing a child from a dangerous situation. It is clear that it is for the
benefit of the child. What happens to the mandatory sentence? Do you put
someone who has clearly acted for the benefit of the child in jail for five
years? In a practical way, the Crown prosecutor may not decide to go ahead,
but that does not answer the concern I am expressing.
Senator Joyal: I have another question for you, Mr. Major, in
relation to the Gladue principle. I think you were on the bench of
the Supreme Court in 1999 when that decision was rendered by the court. We
have heard our witnesses and Senator Baker raise the issue of the impact of
minimum sentences on the Gladue principle. In other words, when there
are minimum sentences, the judge has no discretion to take into account the
Aboriginal condition of the offender.
With the multiplication of minimum sentences throughout the Criminal Code
in the last six or seven years, are you of the opinion that at a point in
time a case can be brought to justice that the Gladue principle has
been bypassed systematically in the code and that it is a negation of the
very objective that was the basis for the Gladue decision in 1999? In
other words, can an Aboriginal person challenge the minimum sentence on that
Mr. Major: I have been away from the court, so my memory might not
be as acute as it should be. However, I would say that it happens all the
Senator Joyal: In what context?
Mr. Major: Most trial lawyers, particularly the criminal defence
bar and prosecutors, see a minimum sentence in the particular case not being
the proper disposition of the case, so they, for lack of a better word,
scheme to find some way to either have the charge reduced so that there is
no minimum or to have the evidence found lacking. People, sometimes where a
judge has a case in the balance, which probably has been proven but in which
he is facing a minimum sentence, will find the person not guilty.
A California case is a good example of the minimum carried to the extreme
where three strikes — three convictions — carry a life sentence. There was
quite a widely reported case where the third offence was the accused leaning
over a picnic table and taking a piece of pizza from another person. Under
California law, that was robbery with violence. The minimum kicked in and
life imprisonment followed. All of us think of that as being extreme, but
when you impose minimums and remove the wisdom of the court collectively, I
think it is an idea that will come back to bite you.
Senator Dagenais: My first question is for Ms. Stewart. Should we
conclude from your concerns about people with mental illnesses that the
courts are not capable of demonstrating understanding in cases like that?
Ms. Stewart: It is not necessarily that the courts do not
understand these types of cases; it is just that a mandatory minimum
sentence basically ties the hands of a trial judge. The trial judge may be
faced with a situation where he knows full well that he has a defendant
before him who is suffering from a very severe mental illness but who falls
short of being not criminally responsible. What can he do in the face of a
mandatory minimum sentence? He has no choice but to sentence that person to
at least five years, and that is our concern.
I do not know if there is some way to make an exemption for someone who
commits the offence as a result of a mental illness. I do not think there is
precedent for that. That is our concern. The trial judge will know. Any good
defence lawyer will bring it to the attention of the trial judge, but a
mandatory minimum will tie their hands.
Senator Dagenais: My final question is for Mr. Spratt. It is very
simple. I have listened to your testimony and I understand that you are
saying this bill will not achieve its objectives. I would like to hear your
suggestions about other solutions that might eliminate the kinds of crimes
the bill is targeting.
Mr. Spratt: Yes. Certainly, Parliament has a vast array of tools
in its tool kit to express the abhorrence it has for serious crimes. We see
that in the code already, through a list of aggravating circumstances that
shall be considered by a trial judge. Some of them are already in there
regardless of this bill — the age and vulnerability of a child, the type of
offence, whether a firearm was used. These are in section 718 of the
It is my experience that these aggravating circumstances are very
powerful in court and result in increased sentences. It is through general
principles that can be employed by those who deal with specific facts that,
I submit, just results are arrived at. In many cases for crimes such as
this, the just result is a lengthy, serious and severe penitentiary sentence
in excess of five years.
Of course, the problem when you have a one-size-fits-all solution is that
injustices occur at the other end of the spectrum as well. Through
declarations of general principles that can be applied to specific cases,
you can have the best of both worlds. I would recommend that Parliament deal
with situations like this through strong statements of principles that a
trial judge shall consider.
Senator Plett: My line of questioning was around mental illness as
well. Even though I do not agree with our witness, I think she has answered
that. I will simply ask a supplementary question to Mr. Justice Major. Twice
he raised the issue of foster parents taking a child. This proposed
legislation speaks to strangers, so I wonder whether he refers to foster
parents who know the children they are taking. If that is the case, I do not
think it would apply. If it is others, would it not be a defence if I, as a
foster parent, see a child being abused — or anyone seeing a child being
abused — take that child away from that situation and bring that child to
the authorities? Surely that would be a defence that I had not kidnapped
that individual. If I did not bring that child to the authorities, there
should be a punishment of some kind.
Mr. Major: I agree with taking a child out of harm's way, which is
obviously not an offence. Kidnapping for ransom is what we usually think
There are numerous cases of parents that have become divorced. The most
recent case I saw was of a woman who took the children out of the
jurisdiction and they were away for 15 years. Under the mandatory sentencing
provision, there is an exception made for separated parents, but nonetheless
parents. There is no exception for someone who has not reached the status of
parent. In a common law relationship in its early stages, the parties are
not considered husband and wife for any purpose. If in that circumstance the
wife or the husband, the custodian of the child, removes the child from the
natural mother for the benefit of the child, then that circumstance should
be taken into account. It should be one of the exceptions.
There are numerous cases of inter-family kidnapping, and you have made
that an exception. What I raised was not saving a child from immediate
danger but taking a child into the custody of that person for the benefit of
the child. Clearly, there would be an obligation to show that it was truly
for the benefit of the child that the person acted in the way they acted.
There are other cases where Canada does not have an agreement with other
countries about the return of children who have been kidnapped, but that is
a different category because the offending person is not coming back.
The Chair: I raised this before when we talked about mandatory
minimums. I would like to get a brief reaction from any witness who wishes
to respond. It is a comment from the Alberta Court of Appeal in December
2010. In this case, a man was given a 90-day intermittent sentence and
probation for raping an unconscious girl. The court said:
. . . judge shopping is alive and well in Canada . . . . Without
reasonable uniformity of approach to sentencing amongst trial and
appellate judges in Canada, many of the sentencing objectives and
principles prescribed in the Code are not attainable. This makes the
search for just sanctions at best a lottery, and at worst a myth. . . .
If the courts do not act to vindicate the promises of the law, and
public confidence diminishes, then Parliament will.
That explains to some degree why we are seeing this increased use of
mandatory minimums. Would any of you like to respond to that view of the
Court of Appeal?
Mr. Spratt: R. v. Arcand was a lengthy judgment by the
Court of Appeal. What Arcand also specifically recognizes is that one
should situate oneself within a range of sentence. There may be aggravating
or mitigating factors that would cause a court to deviate from that range.
What you may be fixing on one hand with the mandatory minimum sentence
totally undercuts a judgment in the other sense because you cannot deviate
from the lower end of a minimum sentence. There may well be mitigating
circumstances that would compel a court to deviate from that range when
looking at all the evidence.
Mandatory minimum sentences do not fix the problem in Arcand and
they exacerbate other problems. I have appeared on a lot of mandatory
minimum sentencing bills. We have seen a lot of bills, and some of the ones
I have appeared on, where there are constitutional exemptions, laws struck
down and appellate conflict. We are going to hear the Supreme Court on this
issue eventually, and there are outstanding cases before the Court of
To answer your question specifically, I do not think fixing a minimum
solves the problem in Arcand. If it goes some measure to solving that
problem, then other moles pop up when you whack that one.
The Chair: We appreciate all three of you contributing to our
deliberations this evening.
Mr. Major: May I comment on that?
The Chair: I am sorry, but you cannot, Mr. Justice Major, as we
have gone over our time and have other witnesses waiting to appear. We
appreciate your being here.
Mr. Major: May I say goodbye in a particular way?
The Chair: Go ahead.
Mr. Major: In your wisdom, when you look at the bill, ask
yourselves or ask anyone if they can give you an example of where a
mandatory sentence in any jurisdiction has reduced the crime — anywhere.
The Chair: Thank you for that and for being here.
For our second panel this evening, from the RCMP please welcome Assistant
Commissioner Antoine Babinsky, Technical Operations. Mr. Bilinski is not
here with us this evening. Inspector Carole Bird is Officer in Charge of
Missing Persons & Unidentified Remains.
Lianna McDonald, Executive Director of the Canadian Centre for Child
Protection, is appearing by video conference from Winnipeg, Manitoba.
Joining Ms. McDonald is Monique St. Germain, General Counsel.
We will begin with Assistant Commissioner Babinsky. Please proceed.
Assistant Commissioner Antoine Babinsky, Technical Operations, Royal
Canadian Mounted Police: Good evening, honourable senators. I would like
to thank you for allowing me this opportunity to talk about the work being
done by the Royal Canadian Mounted Police with respect to missing persons.
The Canadian Police Centre for Missing and Exploited Children was created in
response to the ever-increasing concern about children's safety.
The centre is composed of two distinct but linked components that strive
to protect Canadians at home and abroad. They are the National Child
Exploitation Coordination Centre, which has a mandate to reduce children's
vulnerability to Internet-facilitated sexual exploitation, and the National
Centre for Missing Persons and Unidentified Remains.
As part of the 2010 federal budget, the RCMP was given $2 million per
year to build and expand on its National Missing Children Operations with
the goal of establishing a national centre which would include missing
adults as well as unidentified remains. As a result, the National Centre for
Missing Persons and Unidentified Remains, or NCMPUR, was created in 2011.
NCMPUR is tasked with supporting missing persons and unidentified remains
investigations on a national level. The centre's mandate is as follows: to
enhance specialized services to missing persons and unidentified remains
investigations, which includes providing support to police agencies, medical
examiners and chief coroners; to increase operational effectiveness and
intelligence building; to develop training for police; and to assist with
investigative comparisons that involve missing persons and unidentified
In order to achieve its mandate, the NCMPUR has four key deliverables: it
must develop a national website, a national database, training and
investigative best practices. I will discuss each of these in turn.
The first deliverable, and a recently completed NCMPUR milestone, was the
creation of www.canadasmissing.ca.
Launched in January 2013, this is Canada's first national, publicly
accessible website designed to solicit tips and information from the public
about cases of missing children, missing persons and unidentified remains.
Profiles are published on the website at the request of the primary
investigators, whether they are police, coroners or medical examiners. The
site currently contains 746 profiles of missing children, missing persons
and unidentified remains. Additional profiles are being posted to the site
on a regular basis. The ultimate goal is to obtain information from the
public that will assist in advancing these investigations.
The second of NCMPUR's deliverables, the national Missing
Children/Missing Person and Unidentified Remains database, is currently
This will be the first national police database specifically designed for
missing persons and unidentified remains cases. The database will allow for
enhanced comparative analysis across jurisdictions and agencies by the
National Centre and by regional centres where they exist. This coordinated
approach will, for the first time, capture data on both missing persons and
unidentified remains in one central database.
The third component of NCMPUR's mandate is to provide specialized
training to investigators. Consistent training provides opportunities to
promote successful investigative practices as well as collaboration across
jurisdictions and mandates so we can locate missing persons and identify
found human remains as effectively as possible.
We are developing training that will be available to law enforcement
agencies across Canada. The first two of the new online training components
were made available in January 2013 and three more online courses are
currently in development.
An Advanced Missing Persons and Unidentified Remains Investigators Course
was piloted at the Canadian Police College in March 2012.
NCMPUR's fourth deliverable is the development of investigative best
practices. Best practices were gathered by NCMPUR from across Canada and,
where appropriate, internationally, in consultation with investigators from
Missing Persons and Unidentified Remains units. The Investigative Best
Practices document was made available to Canadian police services, coroners
and medical examiners in the fall of 2012.
NCMPUR also houses the existing National Missing Children Operations, or
NMCO, which continues to assist law enforcement agencies in the
investigation, location and return of missing children by collaborating with
law enforcement and government agencies.
NMCO, as part of the Our Missing Children program — which includes the
Canada Border Services Agency, the Department of Foreign Affairs and
International Trade, the Department of Justice and Passport Canada — works
to locate and recover children who have been abducted and taken out of the
NMCO liaises with the federal, provincial and territorial central
authorities under the Hague Convention on the Civil Aspects of International
Parental Child Abduction to return children to their left-behind parent.
NMCO also works with law enforcement in approximately 190 countries around
the world through Interpol in efforts to locate children and return them
safely to their lawful guardians.
The Chair: I am sorry, but I will interrupt you because we have
limited time. I know all of our witnesses are advised of a five-minute
presentation. If you want to quickly summarize the remaining points, then we
can go on. We want to have the opportunity for committee members to ask
Mr. Babinsky: I just completed the four mandates that we had to
do, so I am ready to let another witnesses speak.
The Chair: Thank you very much.
Ms. McDonald, I understand you have a statement as well. Please proceed.
Lianna McDonald, Executive Director, Canadian Centre for Child
Protection: Mr. Chair and distinguished members of the committee, I
thank you for giving us the opportunity to provide a presentation on Bill
My name is Lianna McDonald, and I am the Executive Director of the
Canadian Centre for Child Protection, a registered Canadian charity
providing national programs and services related to the personal safety of
I have had the privilege to present to this committee in the past, most
recently in connection with Bill C-222. At that time, we provided a whole
bunch of background information on our organization.
My goal today is to provide insight on and support for Bill C-299,
related to the kidnapping provision of the Criminal Code. Our agency will
offer this based on our role operating MissingKids.ca, Canada's missing
children resource centre. Through this program, we offer families support in
finding their missing children and provide important educational materials
to help children not go missing.
I am joined today by my colleague Monique St. Germain, who is general
counsel for our organization and has been conducting research in a way that
we will make some connections today. She and I will speak more to that as we
move along. We are looking at important research surrounding abducted and
then murdered children, and we will be talking about that a little later.
Our organization was established in 1985 out of the tragic death of
Candace Derkson. Candace was 13 years old and disappeared while on her way
home from school on November 30, 1984. The entire community was engaged in
the search for her, and it was not until January 1985 that she was found
deceased in a shed less than one kilometre from her home. Candace's abductor
was convicted by a jury of second degree murder in 2011.
Over the last 28 years, our organization has worked with countless
families of missing children to provide support and coordinate available
resources. We work closely with police to support their search efforts, and
we offer prevention and educational materials to children and families.
In 2011, we launched MissingKids.ca as a national missing children's
service, with support from the Government of Canada. This website offers
important resources, prevention materials and information about current
missing children in Canada.
We also operate a toll-free line that is available 24 hours a day, seven
days a week and is staffed by trained case workers. We reach out to Canadian
police across the country and complement their efforts in terms of searching
for missing children. We offer a number of missing kids alert services that
go beyond the AMBER Alert.
Those are just some of the important services we offer.
We have had the opportunity to review the transcripts related to Bill
C-299 in advance of coming here today. Rather than repeat information that
has already been stated, we would like to take this opportunity to provide a
few points and different information for this committee to consider.
As mentioned, we offer a number of educational materials to Canadians,
and we are always interested in learning more about what is happening in
Canada in terms of the scope of the problem. Recently, our organization has
been involved in conducting a first-of-its-kind research project into
Canadian cases of stranger abductions and child victims aged 16 years and
younger. We are looking at cases dating back to 1960. Thus far, we have
identified over 100 such cases. The cases we have uncovered involve children
as young as 2 years all the way to 16 years. In conducting this research, we
have been looking at a number of important sources, including court records
and transcripts. We are looking at the demographics of the victim and the
abductor. We are looking at circumstances surrounding the offence and
motivation of the abductor and the techniques used to abduct the child.
We were inspired to do this difficult analysis with the idea that what
one child's story may not be able to say, the collective voice of many could
say. It is our hope with this research that we will get a better
understanding of these crimes and be able to provide important data.
In 2012, we released preliminary information from a closer analysis of 23
of the identified cases. What may be of interest to the committee given past
discussions of this bill is that our preliminary findings were that in over
half of those 23 cases the evidence was that the offender lured the children
as opposed to taking them by force. These preliminary findings are important
if you consider that the kidnapping provision requires that a child be taken
against his or her will. In cases where a child is lured to go with an
offender rather than being forcibly taken, it may be more difficult to prove
beyond a reasonable doubt that the taking was against the child's will.
In contrast, the abduction provisions, sections 280 and 281, while
carrying a lesser penalty, do not require that the taking be against the
will of the parent. Given what we have seen from reviewing a sampling of
these cases where a kidnapping charge was pursued versus an abduction
charge, it is apparent that kidnapping cases are pursued where the Crown has
a strong case involving conduct that is extremely serious. In our view,
these are the types of cases where the mandatory minimum penalty is most
We also wish to draw the committee's attention to a specific kidnapping
example that our agency is aware of as we work directly with the victims in
this case. The case involved the offender Peter Whitmore, who is serving a
life sentence for two counts of kidnapping resulting from an incident in
2006 where he took a 14-year-old boy from Manitoba, travelled to
Saskatchewan and took a 10-year-old boy there. He told both boys on
different occasions that he would kill them and their families if they did
not comply. He made them watch child pornography and he sexually assaulted
both boys. While the details are shocking, the imposition of a life sentence
for kidnapping was not at all surprising.
Notable about the case is that this was not the first time Peter Whitmore
had taken a child. This offender, on at least two known occasions, has taken
two other children for a sexual purpose. The first was in March 1983 when he
enticed an 11-year-old boy and sexually assaulted him for seven hours before
releasing him. The charge laid for that was abduction.
Within nine days of his release from that charge, he was given parental
permission to look after an 8-year-old girl. This permission was later
revoked once the mother learned of his past, but for three days Whitmore
committed assaults upon the girl before ultimately returning her to her
mother. An abduction charge was not laid in this case, although charges were
laid for sexual offences. He received a 56-month sentence not only for what
he did to that girl but for what he did to other victims who came forward.
He served his entire sentence, and just over one year after his release back
into the community, he committed the kidnapping offence referred to earlier.
We are providing the information about our research project and about the
Whitmore case for two reasons. First, we believe it is important to
recognize that there is a real difference between the abduction and
kidnapping provisions and that the kidnapping provisions are laid in only
the most heinous of cases. Second, while we are fully in support of the
imposition of the mandatory minimum penalty in relation to kidnapping a
child because we very much recognize the extreme nature of the offence as
currently written, we also wish to table the suggestion that the maximum
penalties in sections 280 and 281 be reconsidered in light of the fact that
these are the more common provisions used when a child is abducted and that
consideration be given to adding section 279 to the list of offences that
can trigger a prohibition order under section 161 of the Criminal Code of
The Chair: I am sorry; I have to be even-handed. You have both
taken nine minutes on your presentation.
You can add on during responses to senators because we have limited time.
We will begin with Senator Boisvenu.
Senator Boisvenu: I would like to thank our witnesses, and
particularly the representatives of the RCMP, whom I would first like to
congratulate, because I can see that work on missing persons is progressing
In 2010, when I came to the Senate, one thing we reviewed was DNA
fingerprinting, and we saw that there was an intention to move forward on
that. What I have read in your report is very interesting.
I have a few technical questions. You talk about a centralized database.
Do all police forces across Canada contribute to it, or just the RCMP?
Mr. Babinsky: The database is still being developed. When it is
ready, it will cover all police forces across Canada.
Senator Boisvenu: Will you have to get the statistics from
Juristat, or will the police forces have to provide the data about missing
persons? There is a grey area in the case of missing persons. These figures
are not reflected in crime statistics. There is always a delay involved in
determining whether it is an abduction, a criminal missing person case or a
runaway situation. How will you go about defining abduction on a criminal
Inspector Carole Bird, Officer in Charge, Missing Persons &
Unidentified Remains, Royal Canadian Mounted Police: One point of
clarification: The database that is being designed will draw from the
Canadian Police Information Centre system. Over 27 enhancements have been
done to CPIC to capture more enhanced information as it pertains to missing
persons and unidentified remains. The database being designed is referred to
as MCPUR and will draw information from CPIC. That information will be
augmented by analysts. Police agencies across Canada that have access to
CPIC will feed in through the CPIC system to the master database.
Can you repeat the second part of your question?
Senator Boisvenu: To define a missing person, you do not put all
runaways in that category. There are more than 100,000 runaways in Canada
every year, accounting for 95 per cent of missing person cases. Your
database will be composed of missing persons where the circumstances are
described as criminal or suspicious. They will be missing person cases that
the police are working on.
How will you build this database of cases that the police have an
interest in, that they can work on, or that might involve the public in
identifying missing children?
Ms. Bird: The information that goes into the database is based on
the information that the primary investigator receives. In most cases of
missing persons, we do not know why they have gone missing. In fact, most
missing persons reports entered on CPIC are resolved within the first seven
Investigators can give us only what information they have. I believe that
you heard earlier testimony from a witness, Chief Rodney Freeman, from
Woodstock, who was able to articulate how that particular investigation
started as a missing person, but there was foul play.
In terms of the database, all missing persons reports — missing children
— from CPIC will be pulled into the database because we do not know
sometimes why people are missing. We will then have the ability to compare
it with information on unidentified remains as well as other missing person
cases with a view to conducting comparisons, linking cases and seeing if
there are commonalities. It is a fact that we sometimes believe we are
looking for a missing person but a criminal offence has happened. We will
not exclude a missing person case because it did not come in as a criminal
offence, so the database will include all those cases across the country.
Senator Boisvenu: In conclusion, do you support the bill?
Mr. Babinsky: We are not in a position to comment on that
The Chair: I think the senator knew that.
Senator Jaffer: When looking at Bill C-299, it specifically sets
out children under 16 years of age. I would like to hear from both
presenters whether we should amend that to 17 or 18.
Ms. Bird: From our perspective, we are not in a position where we
can comment on the proposed legislation, but thank you for the question.
Senator Jaffer: Ms. McDonald, can you comment?
Ms. McDonald: We recognize and think this legislation is a great
start. We see vulnerabilities with children who are under the age of 18.
When we look at their increased independence, we look at the rates of
missing people and children. That would be an important consideration to
Senator Lang: I would like to follow up on the information that
has been provided by the assistant commissioner. You state that the site
currently contains 746 profiles of missing children, missing persons and
unidentified remains. What is the breakdown of those 746 profiles? How many
are missing children?
Mr. Babinsky: I believe Ms. Bird has those statistics for you.
Ms. Bird: At the present time, we have 104 profiles of missing
children, 451 profiles of missing adults and 158 profiles of unidentified
You will find that the numbers are a little bit different because we also
have associated persons listed; they may have been with a person who went
missing. For example, if children are reported missing but they may have
been with a parent, that parent may be listed as an associated person on the
Senator Lang: My next question is on the initiation of this
particular website. There are two websites; one is www.canadasmissing.ca. If
I refer to the witnesses from the Canadian Centre for Child Protection and
the website you have presently taken charge of, is there a coordination
between the two websites and, if so, to what degree? Perhaps you can provide
us with that information.
Ms. McDonald: I can begin with that.
As a charitable organization, our agency is set up a bit differently. We
were born out of the Child Find network across Canada, so our primary
clients are families of missing children. We have a setup where families can
come in online, make a call 24 hours a day, and we talk to them in terms of
what steps they can take. We then coordinate directly with various law
enforcement agencies and the RCMP in terms of international cases and other
appropriate investigations in which they are involved.
We work with families. We work with police across the country, and our
direct clients would be the families of missing children.
Senator Lang: The way I understand it, you have not been in
existence for that long. When was the website put into effect?
Ms. McDonald: We launched the missingkids.ca website two years
ago, but we have been operating missing children's services for over 28
The website became the public face or portal to allow Canadians to access
important education material, get checklists, to know what they can do in
terms of acting when their child goes missing. It also has a police portal
where we coordinate with the investigating police agencies. The website was
created to help facilitate, educate Canadians, provide them with new tools
and incorporate technology into the search for missing children.
Senator Batters: Ms. McDonald, I wanted to thank you for the
comments that you made about the distinction between kidnapping and
abduction. That was helpful. It draws out the point that kidnapping charges
are the ones that mandatory minimum penalties are most important to apply
to, and the reason for that distinction.
I am from Saskatchewan, so I appreciate you speaking about the Peter
Whitmore case. That case still haunts many in Saskatchewan, knowing that it
could happen in such a peaceful little community. To bring that out as an
example was helpful as well.
Is there anything else with respect to his particular case? You were
drawing to a close at the end of a lengthy opening statement about that, but
is there anything else? I think the point you tried to make was had this man
been convicted of kidnapping and been given a minimum mandatory penalty of
five years early on, the later heinous crimes might not have happened.
Ms. McDonald: Our agency is not commenting on different types of
We are speaking to this type specifically. We believe that in dealing
with crimes and offences against children, mandatory minimums are very
important. We see this as an important start when we look at the most
heinous of crimes.
One of the things we looked at was the scope of convictions involving
kidnapping. If there are additional questions, my colleague can respond, but
we see those only being used because of the threshold in the most heinous of
crimes. We think that the mandatory minimum sends a strong message in terms
of the seriousness and that we are dealing with very vulnerable people who
The Chair: I have a supplementary question with respect to
Whitmore. He was on an 810(1) order which allowed authorities to monitor his
movements after serving his sentence. They still lost track of him. There
was no electronic monitoring. Bill C-10 authorized electronic monitoring of
individuals like that.
Do you know if that is occurring now, or is the legislation being used by
CSC to track individuals like Mr. Whitmore, who is a career pedophile and
Ms. McDonald: I am not aware of that answer, but I want to make a
point. The reason we referenced him is that we have been seeing through the
analysis of the research we have been doing that there are prolific
individuals. When we talk about sentencing and look at the role — we have
been reading the transcripts in terms of the dialogue surrounding them —
they are not a deterrent.
From our agency standpoint, we are not looking at mandatory minimums in
terms of whether they are a deterrent to offenders. We are seeing the
specific deterrent, so these individuals often commit a number of crimes
over and over again. We see the period while they are incarcerated to be
very important in preventing future victims.
Senator Dagenais: Obviously, I will not ask you whether you
support the bill, but for my information, did I understand correctly that
your system would sooner or later be connected with CPIC, or is that not
something you intend to do?
Ms. Bird: Yes. The database that is being developed will pull
information from CPIC and will ultimately allow us to feed into the website.
It will be one large, comprehensive system.
Access for all police agencies is through CPIC right now. They will be
able to enter more comprehensive information, and it will pull into the
database, which will have the ability to do automated comparative analysis,
augmented by humans, who will do more enhanced analysis as well.
Senator Dagenais: Obviously, connecting with CPIC allows all
police forces to get the information that is available.
Ms. Bird: It will allow it to feed up into the database, but
police officers, medical examiners or coroners will not be able to query it
directly. It will be done by specialists at the national centre. We are in
dialogue with different areas to see which police agencies could become
regional centres, be properly trained and then be able to have access
directly to the database.
It is very similar to how we gather information that goes into the
ViCLAS, the Violent Crime Linkage System, if you are familiar with that.
There are ViCLAS analysts who are trained to do more enhanced comparison and
provide that service back to the primary investigator. Any front-line
investigator requesting the enhanced analysis would call the national
centre, and we would be able to provide that service.
Senator Dagenais: I admire the work you are doing, in spite of how
many missing children there are in big cities like Toronto and Montreal. I
imagine that sooner or later, the major police organizations will be able to
communicate with those centres to get information. Is that right?
Ms. Bird: Yes. If a police agency, coroner or medical examiner is
able to meet the standards to receive a designation to be a regional centre,
we would certainly enter into that dialogue.
Senator Fraser: I have a question about the database. Are you
allowed to include DNA in the database? If so, do you? If not, would it be
helpful for you to be able to do that?
Ms. Bird: The database will not include DNA information. It will
allow an investigator to indicate that DNA exists, and the primary
investigators that believe their cases are linked will then be able to
pursue having that comparative analysis done. That can happen, but the
database itself is not a DNA database.
Senator McIntyre: All of you have a lot of experience with matters
involving the kidnapping of children. My question is rather simple: Has your
experience disclosed that we most often deal with first-time offenders as
opposed to repeat offenders? Does your database show a lot of repeat
Ms. Bird: Our database is currently under development, so at this
time there is no data that we can pull from it. Perhaps there is something
from Ms. McDonald's research.
Senator McIntyre: Ms. McDonald and Ms. St. Germain, could either
of you answer that question?
Monique St. Germain, General Counsel, Canadian Centre for Child
Protection: From the research we have been doing on the abducted and
murdered children project, we are finding from our analysis that many
offenders who commit this crime do have prior offences against children. We
are looking more closely into the backgrounds of these offenders, but there
certainly appears to be an emerging pattern.
Senator Boisvenu: Are there statistics about the number of
criminal missing person cases in Canada and the clearance rate?
Ms. Bird: We do not. Our focus and our area of expertise is the
missing. Once we know that a murder has happened, it moves into a different
element of investigation. The area that we are tailored to deal with is that
gap when they are missing for whatever reason and have not yet been found.
The same exists with unidentified remains. It may be a murder, but the
focus for our area of expertise is the identification. Other areas of law
enforcement specialize in investigating the abduction, the kidnapping or the
murder, so we do not have that information with us.
Senator Boisvenu: I would like to know whether the number of
missing persons is on the rise or on the decline. Given that criminal
missing person cases are not reported in crime statistics, it would seem to
be important for the RCMP to take on the job of documenting those cases over
the years so it can be determined whether the number of criminal missing
person cases is rising or falling.
Given that police forces do not collect data in terms of statistics, we
do not know whether the phenomenon of criminal missing person cases is
rising or falling. We also do not know whether the clearance rate is rising
We know that the clearance rate in Quebec is around 15 per cent. In
Ontario, it is around 30 per cent. But we do not have any statistics. If we
pass laws like this one with the aim of reducing the number of missing
person or abduction cases, it would be worthwhile to have statistics about
missing persons available in the Canadian police information system, would
Ms. Bird: The current information we have relates specifically to
the number of reports of missing persons, not the outcome of that
I can tell you about the number of reports that we currently see on CPIC.
The reason I use the word "reports" is because it is very different from the
number of missing persons. We may have one person reported repeatedly or we
may have duplicate entries.
Over the past three years, the total number of missing persons reports,
including missing children, has been approximately 65,000 per year. The
number of reports does not tell us the outcome of how the person was found.
We do know that 64 per cent of missing adult reports in 2012, for example,
were removed from CPIC within 24 hours and 85 per cent were removed within a
Senator Lang: I want to go back to the question of the website for
the Canadian Centre for Child Protection. It has been in existence for a
number of years, and your organization has been functioning for over 20
years. Perhaps you could inform us on what your success has been in the past
with respect to helping identify a missing child and finding a missing
child. Do you have anything to say on that?
Ms. McDonald: Sure. I also want to comment on Senator Boisvenu's
important question, which I will add after answering your question, senator.
Looking at missing children cases across Canada — this is our experience
in working with police agencies — we have a high recovery rate. It is
important to know that in the majority of missing children cases, over the
period of a week the recovery rate of those kids is a little below 90 per
When looking at the statistics of reported missing persons in Canada, the
voluntary or runaway category makes up the vast majority of those numbers.
We are seeing those statistics drop, and we are attributing some of that to
the role of technology; parents are connected to kids through cellphones.
The role of technology is very significant.
When we look at, as we have been talking about, the more difficult cases
where there is believed to be some sort of criminal activity, if you have a
very young child, the parents are clearly distraught. They know something
has gone wrong. These types of cases, such as the Tori Stafford case, are
much more rare and are the ones that really draw a public profile in terms
of impacting communities.
I would also note that one of the challenges in terms of reporting is
that often we will see very young children who will be taken, let us say,
from a park. They are removed for a period of a few hours, sexually
assaulted and then released. When we look at how those events are recorded
and reported in terms of CPIC, we know there are issues there. One might
suggest that the child was abducted, although the report had not been filed
yet because the child was returned or recovered before the initial report
I think we have a lot of challenges in terms of how to record and
accurately capture the rates of these types of missing children cases that
are very important for us to understand.
The Chair: We have a few minutes. I know I obligated you to
abbreviate your opening statements. If you would like to take this
opportunity, are there any additional comments you would like to make?
Mr. Babinsky: No, just to thank you for allowing us to be here
The Chair: Ms. McDonald, is there anything you would like to add
at this point?
Ms. McDonald: As an agency involved in the area of child
protection, we think it is very important that we recognize the particular
vulnerability of children. They are far more vulnerable. When we look at the
tactics used for a little 3- year-old child to be taken or abducted, you do
not even have to use force; you can simply pick that child up. We see kids
as very vulnerable, so we are very grateful for the opportunity to be able
to present, have this discussion and talk about how we consider the
vulnerability of children when we look at legislation such as this. I thank
you for the opportunity.
The Chair: Thank you all for your appearance here this evening and
your contribution to our deliberations on this legislation.
Is there anything else before we conclude? We will meet again at 10:30
tomorrow morning to deal with this bill.