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 bill.

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 Lawyers.

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 the result.

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 going forward.

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 mentally ill.

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 occurrence.

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 children.

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 baby.

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 questions.

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 entirely reasonable.

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 sentencing?

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 some respect.

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 sense.

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 responsibility?

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, [2013] 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 think up.

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 people.

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 principle?

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 time.

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 Criminal Code.

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 about.

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 Appeal.

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 remains.

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

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 under development.

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 country.

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 questions.

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 C-299.

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 children.

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, 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 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 important.

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 Canada.

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 quickly.

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 basis?


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 days.

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 question.


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 look at.

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 remains.

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 website.

Senator Lang: My next question is on the initiation of this particular website. There are two websites; one is 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 website two years ago, but we have been operating missing children's services for over 28 years.

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 mandatory minimums.

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 are children.

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 child molester?

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 offenders?

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 or falling.

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 it not?


Ms. Bird: The current information we have relates specifically to the number of reports of missing persons, not the outcome of that investigation.

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 week.

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 cent.

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 was made.

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 today.

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.

(The committee adjourned.)

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