10/11/2012 08:14 EDT | Updated 12/11/2012 05:12 EST

Changes to the Criminal Code: Now Easy as 1, 2, 3


This coming week, Parliament will vote on my amendments to Bill C-299, Conservative legislation that would impose a mandatory minimum sentence of five years on people who kidnap children. There is, of course, no question that the kidnapping of children is a reprehensible crime, and that our justice system must have the tools to deal severely with anyone found guilty of such an offence. Indeed, it would seem as though this would be just the kind of issue on which members of all parties could collaborate in good faith, together devising a carefully considered strategy to protect Canadian children from those who would do them harm.

Instead, however, this bill has become a prime example of how excessive haste -- and an uncooperative attitude toward parliamentary opposition -- can make for bad law and bad policy. Moreover, it is set to become a situation in which the Conservatives will -- yet again -- vote against amendments that strengthen their legislation simply because they come from the opposition.

The bill in question was put forward last year by British Columbia MP David Wilks in the weeks following the kidnapping and safe return of Kienan Hebert, a child in his riding.

It is understandable that Members of Parliament should want to react quickly to tragic events. However, when changes to the Criminal Code are hurried to the floor of the House of Commons in response to an item in the news, there is an increased risk that important aspects of the bill may be glossed over in the rush to judgement. The need for thorough analysis and revision by parliamentarians therefore becomes even more vital than usual if we are to avoid enacting legislation that has unintended consequences.

Wilks noted when introducing his bill that the intention was "to have the mandatory prison sentence apply only in cases where a stranger commits the crime." Yet, the bill he presented treated all offenders equally; it made no distinction between strangers and, for instance, parents engaged in a custody dispute.

While Wilks acknowledged that the bill did not do what he intended -- and offered to make changes at committee -- the Conservatives on the Justice Committee did not present the amending language until the final meeting dedicated to the study of the bill. This denied opposition members the opportunity for in-depth study of the new legal language, and we were forced to look it over and vote on it in one sitting.

There were important questions for the committee to consider. The new wording created an exemption from the mandatory minimum for "a parent, guardian, or person having the lawful care or charge" of the victim, but those terms may be ambiguous in a court of law. Are step-parents covered if they do not have legal custody? Are aunts and uncles? What about sperm donors?

A representative of the Justice Department was present at that final committee meeting, and she was able to speak briefly to some of our concerns, but her expertise was in criminal law. A family law expert would have been in a position to offer important testimony on how the new language could be refined and on how the bill is likely to be interpreted by the courts, but the Conservative committee members rejected the opposition's request for more time. It should be deeply troubling to Canadians that the laws governing our criminal justice system are being altered quite so nonchalantly.

In an effort to make what improvements I could at this late stage of the process, I have offered two sub-amendments in the House. The first would clarify the exemption to ensure that those in a "substantially similar position" -- such as a relative who may have raised the child but does not have legal status with respect to him or her -- are not subject to the mandatory minimum.

The second would specify that parents stripped of all parental rights are subject to it -- this way, a parent who has been stripped of custody for abuse or neglect cannot claim an exemption because of loose statutory language. Both of these would bring the legislation more in line with Wilks's original intent, but he has summarily rejected them, saying, "Let us get beyond the stick-handling of legal jargon and pass the bill." This statement reveals a disturbing disregard for the duty of parliamentarians to fully consider legislative language before it becomes law.

Clearly, stark differences in legislative philosophy, principle, and policy exist between, on the one hand, a government that pursues a punishment and incarceration approach, and on the other, those of us who affirm one anchored in prevention and rehabilitation; between a government that relies on mandatory minimums that limit judicial discretion, and on the other, those of us who acknowledge the many studies -- in Canada and elsewhere -- that show mandatory minimums to be ineffective, prejudicial and counterproductive.

In fact, mandatory minimums do not remove discretion from the legal process; they simply transfer it from judges to police officers and prosecutors, who may decline to prosecute or charge for a lesser offence, and whose decisions are neither public nor transparent nor subject to review -- thereby undermining, yet again, the government's own legislative agenda. As well, even without a minimum in place, most kidnapping sentences imposed by the courts -- as former Supreme Court Justice John Major testified in committee -- have been serious and substantive, and specifically tailored to the facts and circumstances of the offence and the offender.

But surely, despite our differences on principle and policy -- on which we can respectfully disagree -- we can at least agree that any proposed changes to the Criminal Code should be the object of serious scrutiny and debate. Otherwise, Members of Parliament cannot be sure of the effects of the legislation on which we are voting.

I would prefer that my own amendments be the subject of more thorough examination, and I look forward to having them further studied by the Senate should they pass in the House. Clearly, the changes I have recommended would not have been necessary had the Government's approach been consistently responsive and collaborative. Regrettably, its approach has too often been just the opposite, and the resulting law -- and the Canadian justice system -- will be poorer for it.

I hope the Conservatives will reverse course and support my amendments, which will strengthen the principle and effect of their own bill.

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