March 15, 1977

PRIVATE MEMBERS' PUBLIC BILLS

LIB

Gérald Laniel (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

Mr. Deputy Speaker:

Motion No. 12, in the name of the hon. member for Simcoe North (Mr. Rynard). Shall the motion stand?

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   PRIVATE MEMBERS' PUBLIC BILLS
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LIB

Ralph Goodale (Parliamentary Secretary to the President of the Privy Council)

Liberal

Mr. Goodale:

Mr. Speaker, I think it is agreed that the House should deal with motion No. 21 standing in the name of the hon. member for Surrey-White Rock (Mr. Friesen).

[DOT] (UOO)

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   PRIVATE MEMBERS' PUBLIC BILLS
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LIB

Gérald Laniel (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

Mr. Deputy Speaker:

Is it agreed that orders 12, 15, 16, 18, 19 and 20 shall stand at the request of the government?

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   PRIVATE MEMBERS' PUBLIC BILLS
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?

Some hon. Members:

Agreed.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   PRIVATE MEMBERS' PUBLIC BILLS
Permalink
LIB

Gérald Laniel (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

Mr. Deputy Speaker:

Is it agreed that the House will now proceed to consider order No. 21 standing in the name of the hon. member for Surrey-White Rock (Mr. Friesen).

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   PRIVATE MEMBERS' PUBLIC BILLS
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?

Some hon. Members:

Agreed.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   PRIVATE MEMBERS' PUBLIC BILLS
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CRIMINAL CODE

PC

Benno Friesen

Progressive Conservative

Mr. Benno Friesen (Surrey-White Rock) moved

that Bill C-221, to amend the Criminal Code (abduction of child) be read the second time and referred to the Standing Committee on Justice and Legal Affairs.

He said: Mr. Speaker, for the past few days the leading international news stories have dealt with hijacking tours covering Spain, northwest Africa, Switzerland and Italy. But the central theme of the bill has nothing to do with any European tour: it has to do with extortion and the kidnapping by a parent of his child. Last October 22 I tabled Bill C-221, a bill to amend the Criminal Code. The operative part of the bill reads:

Every parent of a child who, with intent to deprive of the possession of that child the other parent or a guardian or any other person who has been granted by a court custody of such child, unlawfully

(a) takes or entices away or detains the child, or

(b) receives or harbours the child,

is guilty of an indictable offence and is liable to imprisonment for life.

The bill was important to me last October 22. Because of recent events of the last few days it has become even more important to me, as I am sure hon. members recognize. As I speak on Bill C-221, an amendment to the Criminal Code, I am conscious that private members' hour is not noted for the degree to which it captures public attention since private members' bills often focus upon narrow aspects of public or private business. But what I thought was a bill dealing with an infrequent, though serious problem, has turned out to be one dealing with a national problem and has created national interest. There are people in the gallery today representing not only themselves and their interest in this bill but thousands of

March 15, 1977

Criminal Code

people across Canada who have experienced the terror of civil kidnapping or the constant threat of being victims of it.

I have received support for this legislation from all parts of Canada, from the maritimes to northern Alberta, from Halifax to Vancouver. Child welfare agencies from across Canada have written in support of the principle of this bill. I have received letters from both sides of this House, including at least one cabinet minister, supporting the bill. Other ministers have expressed favourable interest. I have received letters from the victims of this distress, from single parents whose trust in custody arrangements and the security of a court declaration has been raped by the callous vindictiveness of an ex-husband or ex-wife.

Most of all, I am convinced I have the support of the real victims of parental kidnapping, the pawns in the vicious game of post-separation or divorce retaliation. It is the children who suffer the most. It is they who suffer lifetime emotional wounds which may never heal. It is they who are asking the unanswered questions, "Where are you taking me?" "When will I see my mother, or father, again?" "When can I go home?" It is the children who suffer the constant mental anguish of torn loyalties, of fragmentary home attachments, of destroyed human relationships. It is the children who are exposed to the terrors of emotional as well as physical torment.

I know, Mr. Speaker, that there are cases where the court has granted custody to an uncaring and irresponsible parent. I know that any feeling and caring, loving parent, seeing his or her child neglected under the protection of a court order must want to right that wrong by forcibly taking such a child from those abject and destructive surroundings. That impulse stems only from a sense of humanity and decency. But our society can never condone any practice of breaking the law to correct a wrong. That is the road to anarchy. What we must do is immediately find ways to ensure that custody arrangements are made equitably, with easy access to redress.

In the meantime we are left with the stark reality that by far the most parental abductions stem from a heinous desire to continue to hurt the ex-spouse, from vengeance, vindictiveness, an attempt to barter a child for a better divorce settlement. In the United States the estimates run from 25,000 to 100,000 a year. For Canada that would mean 2,500 to 10,000 a year. Mr. Speaker, I would like to give just a few examples of what I am talking about. Other members speaking in support of this bill can add endlessly to the list. I know the honourable member for Vancouver-Kingsway (Mrs. Holt) is interested in this legislation, supports its principle and has worked hard for parents who have suffered the anguish of the circumstances to which I am alluding.

There is the case of Stephen Preston whose mother is a constituent of mine. Stephen was kidnapped by his father when he was seven years old. Through a very bizarre circumstance he was returned by the court to his mother three years later. The boy was taken from the courtroom kicking and screaming. Why? Because that fine lady had been painted by her ex-husband as a prostitute, as an alcoholic and any number of other vicious lies. During those three years Stephen Preston

has lived under 12 aliases. He had less than a first grade education and could barely write his name. Two months later he was kidnapped again. We do not know where he is today. I ask hon. members, what kind of a young man do you think he will be when he is 18 if nothing is done?

Several weeks ago I received a letter from a lady in New Brunswick pleading with me to try to help her find her two children. Her husband took them one day six years ago and disappeared. She has pleaded with school authorities and with the police, but they cannot help her. Then there is the couple in Grande Prairie, Alberta: the ex-wife left for several years and has now come back to town, remarried. The grapevine around town has it that they have come back to take the children. What must it be like to send your children to school in the morning and then wonder all day, every day, whether that is the last time you will see them? Another lady in Alberta is in permanent hiding-only her parents know where she is-all because of the constant threat that her children would be forcibly taken.

There is the young mother whose son is in Coquitlam, British Columbia, snatched from a day-care centre here in Ottawa. She has neither the emotional strength nor the financial resources to find ways to bring him back. There is the tragic story of Vicki Starr, from Ottawa and Burlington, whose Iranian father took her to Iran eight months ago. Can you imagine the anguish of dealing with a government that does not recognize women's or children's rights even as much as we do? What must it be like for a 12 year-old to be virtually alone in a strange country, unable to speak the language and knowing she may never see her mother again?

Several weeks ago I was interviewed on this subject by a reporter. After we were through she said quietly to me, "You know, that's what happened to me when I was a little girl. My mother kidnapped me and wouldn't let my father know where I was till he promised her a different divorce arrangement." Believe me, Mr. Speaker, that young lady is interested in seeing this bill pass.

I know this bill is not perfect. I think several changes ought to be made at committee stage, for that is what parliamentary debate and committee discussion is all about-to perfect proposed legislation. I offer the following suggestions to members for discussion at committee stage. First, I think the age mentioned in the bill ought to be uniform with other legislation and should be changed to 14. Second, I think custody arrangements ought to include those in addition to court appointed ones, such as legal agreements arrived at in a law office. Third, and most important, there are some who feel the penalty provision of Bill C-221 as it now stands is too severe for some cases. I agree. Therefore, I would commend to the justice and legal affairs committee, or to the health and welfare committee, an amendment which would bring greater accommodation for the varying exigencies under which the kidnapping took place. I am not adamant about seeing this bill pass in its present form. I am interested in the co-operation of the minister in seeing the principle of this legislation go on to committee stage for discussion.

March 15, 1977

The most formative and enduring relationships we will ever have are those we build with our parents. It is from our parents that we first learn about our sense of identity, who we are. It is from our parents that we get our first feelings of worth and being wanted. It is with them that our need to be loved and wanted is first satisfied. However, what if these relationships are shattered, first by divorce and custody proceedings, and then by parental kidnapping? What is the harvest of emotional problems we are going to reap in the coming generation because we have not dealt with this problem?

We have spent a great deal of time and energy protecting the material rights of children. We look after their property rights, their inheritance rights, their rights of succession. We have health and immunization programs to protect their bodies. We have laws to protect them from all forms of physical contamination. We have laws which prohibit the transport of diseased cattle across provincial boundaries-all to protect the body. But if an estranged parent, father or mother, forcibly wrenches a child from the home that has given him security, takes him away from the parent with whom he or she is most firmly attached, and moves him into another province, into alien surroundings, and force-feeds his mind and emotions with the venom of a destroyed marriage relationship, and we offer that child no help, no warmth, no healing, no security, then surely that child must cry out that ancient pitiable cry, "Is it nothing to you, all ye that pass by?"

This is not a government problem, or an opposition problem, or a provincial problem; it is a human problem. All it requires is the will to make a few simple but fundamental changes.

The present law is based on the premise that parents cannot kidnap their children. The increasing number of marriage breakups, the increased mobility of our people, the increased expressions of hostility and violence in our land, make that premise obsolete. Bill C-221 recognizes the reality of that basic change.

At present, the provisions of the divorce act are portable across Canada and around the world, but the custody arrangements issuing from those divorce settlements enjoy only provincial recognition. So it is that a parent can kidnap his child, take him into another province and have almost total immunity from arrest. Ever since the 1957 ruling in Regina vs. Austin, this kind of criminal activity has escaped prosecution because of the loophole that exists in paragraph two of section 250 of the Criminal Code.

Even when all the provinces recognize each other's custody arrangements, as necessary as that is, it will not eliminate the furtive running and hiding by the parental kidnapper, nor will it take care of international implications.

Our Canadian Bill of Rights guarantees to each the right "to life, liberty, security of person". At this very moment there are countless children born with that right who have it denied them by the unconscionable action of a vindictive parent. Bill

Criminal Code

C-221 would go some distance in ensuring that right to those things for our children.

I trust hon. members will permit this measure to go to committee for examination, amendment, and approval.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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LIB

Simma Holt

Liberal

Mrs. Simma Holt (Vancouver-Kingsway):

Mr. Speaker, I rise in support of the hon. member for Surrey-White Rock (Mr. Friesen). I thank him on behalf of the people I have been working for and for myself. It seems we are perpetually confronted with at least one of these problems. I have not just been faced with province to province parent kidnappings, but also with international kidnappings. Just one case has kept me and many other people occupied for more than two years, and it is still not resolved. I will outline that in a few moments. If this bill goes through, we will then treat children born in Canada as though they were citizens and have the rights and protections of citizens.

When I first became involved in this the whole country was up in arms about the kidnapping of the heir to the Seagram's estate. There was a great outcry. However, when five small children were kidnapped from a Mission, B.C. mother no one cared if she got her children back. All the resources of legal aid were used to pay for some Hong Kong drug traffickers in Vancouver, but there was not a cent for this mother of five children to find her children, and virtually save their lives from the putative father in the Philippines, whose reputation and character were less than safe for these youngsters.

The hon. member for Surrey-White Rock questions what they will be at age 18. I ask that too. Perhaps they will grow up in another country. Did they, as Canadian citizens, not have the right and the protection of our nation under the law?

On July 30, 1975, because of the case of Mildred Watson Clarke of Mission, B.C., I rose in this House and asked for help from the then Minister of Justice. At that time I said, and I quote:

Children are citizens and should receive all the rights and protection of a person, a citizen, within the law. However, throughout Canada children are being kidnapped by a parent in defiance of court orders on custody.

I asked then for criminal law to deter would-be parent kidnappers.

Although there were several cases many people were working on at that time, this was the most appalling case. The hon. member for Surrey-White Rock, the leader in the Senate, Ray Perrault and his staff, Mr. Kenneth Burke of the Legal Department of External Affairs, the Superintendent of Child Welfare of B.C., Victor Belknap were all working on the case. We even tried to break the law and kidnap the children back because we felt those children had a right to be home with their mother.

The law did not give them help, so we had to do everything, including trying to hire policemen and criminals to get them back. I asked in this House July 30, 1975, that we create laws so that extradition treaties could help youngsters such as these.

The children of Mildred Clarke of Surrey were kidnapped on Mother's Day, a very nice token. We talk of Mother's Day and motherhood with great warmth, but we do not do a darn

March 15, 1977

Criminal Code

thing to help a mother and her five children who need her love and tender care.

I support this bill completely. With a bill of this sort, I hope that we can get some extradition treaties implemented, identical to those we have for other kidnappings, hijackings, and theft of children.

In the case of Mildred Clarke, I want to tell the House what I went through to try to get help for this woman in 1975 when she first approached me. There was a petition with hundreds of names. I went to the legal operations staff of External Affairs, to a Mr. Burke. He has handled dozens of cases, and succeeded in reuniting some mothers and children.

I wrote to Mrs. Marcos, the wife of the president of the Philippines. I went to the British Columbia attorney general, a member of that great humane NDP government at that time, to see if he would intervene. He did nothing. However, he went to the United Nations international conference on crime in Geneva and got miles of world-wide publicity on his supposed concern over parent kidnapping children. He did nothing for Mrs. Clarke or the other women who were mentioned in this House.

The Prime Minister (Mr. Trudeau) was approached directly. He tried to intervene. We were told that only the head of this state could get to the heads of these different states and obtain any help.

Today I have a new case, a child named Lucienne Dulong. The mother, Loredana Dulong, and the baby's grandfather, Peter Weichel, raised over $10,000 to get the child back from France. The provincial court of B.C. (family division) issued an order awarding custody of Lucienne to the mother, granting the father visiting rights and ordering him not to take the child out of the court's area of jurisdiction. The father agreed to that, and three days later he took the child across the border to Seattle, and flew from there back to France.

The French consulate in Vancouver was wrong and perhaps acted illegally by aiding Andre Mathew Dulong, the kidnapper, giving him the necessary documents to take the child out of the country. The consulate knew of the court order, and what they did once, they can do again.

The Vancouver police issued a warrant for Andre's arrest which, under pressure now from the French government to the federal government and the B.C. attorney-general's department, they want to set aside. This means that after kidnapping the child and having her brought back at tremendous cost to the mother and maternal grandfather, that man can again slip into Canada and kidnap the child. Hopefully this bill will be a deterrent to any such action and perhaps there will be protection for children and the rights of children.

It is fundamental that a child born in Canada should have the rights of a citizen and that court orders should not be defied. But it seems that where children are concerned they can be put to barter in our country, and that the destruction of a child is irrevelant when it comes to the law.

(Mrs. Holt.]

Yes, we will chase all over the country and use all the resources of international law to rescue the adult heir to a wealthy estate, but there is no protection in the courts, not even interprovincially, there is no unification in law, to protect children from these parents. We are using children in barter and retribution. The day is here when we must do everything to end this obviously criminal type behavior. In the meantime, I am personally fighting the so-called "reasonable access" to children. "Reasonable access" can become the right to kidnap a child if a parent has money, has mobility, or has a foreign connection.

I went to court recently with a girl who had been divorced from her Dutch husband. She had a nine-month-old baby. We fought in the court and we even got legal aid at the last moment so he had no access at all; the only possible access would be by court order and under tight supervision. This man would find it difficult to abduct the child and take her to Holland.

In most cases it is men. They do seem to have the resources, the mobility and just do not seem to be tied as much to the child as the woman.

The child, in school is also threatened. There must be protection within the school system for these children.

Today there are probably more children than ever before in history who are victims of broken homes. They have the right of Canadian citizens; they have the right to be protected; and they have the right of every resource of the law even more than any other kidnap victims in our society. I hope this bill is not talked out and that it does go to the committee.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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?

Some hon. Members:

Hear, Hear!

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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NDP

Stanley Howard Knowles (N.D.P. House Leader)

New Democratic Party

Mr. Stanley Knowles (Winnipeg North Centre):

Mr. Speaker, I trust I shall not be getting out of line if I say that it has been indicated to us that the chances are good that the government side will agree to the subject matter of this bill being referred to the Standing Committee on Health, Welfare and Social Affairs. This being the case, I echo the sentiment just expressed by the hon. member for Vancouver-Kingsway (Mrs. Holt) that none of us will prevent that happening by contributing to any talking out of this bill. Therefore, my remarks will be very brief.

I commend the hon. member for Surrey-White Rock (Mr. Friesen) for bringing this legislation before us. I commend him on the speech he made today and I hope that the suggested course of action will be followed. As a matter of fact, I may say that I am just as pleased that the Standing Committee on Justice and Legal Affairs is so busy that this matter will be referred to the Standing Committee on Health, Welfare and Social Affairs instead. I have in mind the fact that last session this committee spent quite a while studying a motion which came from a colleague of my friend having to do with the abuse of children. So the committee I have just mentioned is disposed to do what it can for Canadian children.

I recognize that the legislation may have to be looked at closely in terms of its legal provisions but I gather that what

March 15, 1977

the hon. member seeks to do is not only make the kidnapping of children in these circumstances an illegal act but to write it in such terms that it would come under the extradition rules so that foreign kidnapping could be dealt with as well as offences between provinces in Canada. I think we are all in agreement with what the hon. member is proposing. I hope that others will be as brief as I have been and that we shall reach the point at which the promise can be kept and that at least the subject matter of the bill will be referred to the committee where I know it will be considered with concern and with compassion.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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PC

Walter David Baker (Official Opposition House Leader; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. Walter Baker (Grenville-Carleton):

Mr. Speaker, I was very pleased when I learned early today that it was the intention of the government to accept the principle of the bill and not to follow what is, lamentably, the usual practice of talking out good private members' bills.

I want to commend the hon. member for Surrey-White Rock (Mr. Friesen) for the work he has done and the compassion he has exhibited.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
Permalink
?

Some hon. Members:

Hear, hear!

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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PC

Walter David Baker (Official Opposition House Leader; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. Baker (Grenville-Carleton):

The bill which has arisen from his work shows his intense feeling for the people involved and I, too, would like to make a very short contribution to the debate because, like other hon. members, I would like to see the measure go to the committee.

Unlike those who have spoken so far, I have had an opportunity to see this not only as a member of parliament where I have had cases brought to my attention, but one of them, at least, occurred in my constituency. The abduction took place in my constituency. I am referring to the case of Vicki Starr, whose mother was formerly a constituent of mine-but also I have had occasion to deal with it as a lawyer.

I know of no more hopeless feeling than when advising a client of modest means that her only recourse is to move under the existing law on the civil side, in a province of Canada if she is fortunate, or in a state of the United States, or in a foreign country if she is unfortunate, to claim the rights which were given to her by the courts of the jurisdiction in which she lives. The cost is horrendous and, as the hon. member for Vancouv-er-Kingsway (Mrs. Holt) says, it leads people to flaunt the law. If that is the state of the law, we have to look at the state of the law because the law does not suit our needs.

I am always concerned about jurisdiction as between provincial governments and the federal government. We could, of course, wait for provincial jurisdiction, ten of them in Canada, to enact laws. That kind of thing is in fact going on. But the problem is here with us today and this is one opportunity where, using the jurisdiction within the federal sphere of legal affairs, we can on a national basis attack a problem which does not respect provincial boundaries.

Some will talk about the severity of the penalty. Some would say that life imprisonment is too severe a penalty for an offence like this. I believe there are crimes involving property under the Criminal Code to which a penalty of life imprisonment is attached. But if that is the case the committee will

Criminal Code

look at it and make recommendations. The main thing is that this is an opportunity to take up the initiative of the hon. member for Surrey-White Rock to deal with a human condition which is given prominence in the press when it relates to foreign abduction-that is where the prominence is. But a part of the human condition affects people whose cases are not spectacular. A child's right to the custody and care of a parent, however you want to look at it, is just as important in the human field as anywhere else, whether or not those cases or other cases are followed.

I join with all my colleagues in commending the hon. member for Surrey-White Rock on his bill. I should also like to commend the government-and it is not very often I do that-for seeing the worth of this private member's bill. I would not want to set a precedent so that the procedure of turning these bills back was upset, but I hope the government will look carefully at all of these bills that are brought forward, particularly the kind which deal with the human condition and the consequences that flow from what is really a breach of the law on the part of someone. Perhaps the only way to settle the matter is to look at it as a criminal offence, because that is the only way that we can attack it quickly on a national basis.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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SC

Charles-Arthur Gauthier

Social Credit

Mr. C. A. Gauthier (Roberval):

Mr. Speaker, I would like to say a few words, not to kill the bill but rather to say that I approve the legislation put forward by the hon. member for Surrey-White Rock (Mr. Friesen), in which it is stated:

The purpose of this bill is to make the abduction of a child by a parent who does not have legal custody of that child from the other parent or any other person who has such custody an indictable offence punishable by imprisonment for life as in the case of kidnapping or hijacking.

I am very much pleased that such a bill has been introduced in this House. We have been witnessing for years all types of abductions and I feel that our current statutes are not hard enough to deter such an unforgivable act. Children abducted years ago, maybe ten or even fifteen years ago, were never found again. It is also my feeling that although our laws may not be as stringent as they should be, there should be international agreement between all nations to ensure easier tracing of abducted children. At a time when most every thief is caught, I see no reason why international cooperation could not trace child abductors. I feel that tougher sentences should be provided, at least 25 years' imprisonment. The bill should also invite nations to sign agreements to prevent future abductions of this kind.

I know that another member would like to speak on this, so I conclude with the hope that the bill now before us will be sent to the Standing Committee on Justice and Legal Affairs and later enacted, so there may be protection against such an unforgivable type of abduction.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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LIB

William Kenneth Robinson

Liberal

Mr. W. Kenneth Robinson (Toronto-Lakeshore):

Mr. Speaker, like my hon. friend from Grenville-Carleton, as a

March 15, 1977

Criminal Code

lawyer I have great concern about this kind of problem and I realize the difficulties many spouses have had over a number of years. I am hoping that this bill, or the substance of it, will be referred to a standing committee so that it can be considered in depth. The hon. member for Winnipeg North Centre (Mr. Knowles) indicated that last year we had the whole question of child abuse before the Standing Committee on Health, Welfare and Social Affairs, which at that time came up with a very comprehensive report. It happens to be my committee so I am very happy that this matter may be referred to it. We will carry out our investigation in due course and hopefully see that this matter is remedied in the not too distant future.

First of all, Mr. Speaker, I should like to thank the hon. member for Surrey-White Rock (Mr. Friesen) for his untiring efforts on behalf of the children who have been the unfortunate victims of vindictive parents. Children should not be the pawns of their parents for any reason. Neither should parents be allowed to violate flagrantly the orders of a court regarding custody.

The hon. member by this bill would make the removal of a child from his legal guardian by a parent an indictable offence liable to the same penalties as kidnapping or hijacking. He argues that the circumstances are no different than a situation where the intention is to extort funds or concessions. In this the hon. member is correct. Surely it is apparent that there is little difference between kidnapping and the removal of a child from his legal guardian. They are both theft in its most malicious forms.

The main reason for this bill seems to be the virtual impossibility of enforcing custody decisions. While divorce is a federal matter, child custody is a provincial concern. Each province is charged with the responsibility of ensuring the physical and emotional well-being of a child. This, of course, presents obvious difficulties in the enforcement of parental rights.

It appears that, in most cases, parents who take their children from legal guardians also leave the province in which the custody order was issued. Sometimes they leave the country. Because custody is not only provincially assigned but is also a civil matter, there is no agency besides the court which will enforce custody decisions. The police, who have often suffered physically as a result of intervening in domestic disputes, are understandably reluctant to involve themselves in what is technically a civil problem. Consequently the deprived parent is prevented from taking any immediate action. This parent is helpless in preventing the abduction of his or her child by his or her ex-spouse.

By having to take the matter to court two serious problems arise: time and location. Time is of the essence in a situation such as this. It is very simple to whisk a child on to a plane to another jurisdiction, a jurisdiction that has no control over, or right to interfere in the battle for custody. If the offending party manages to keep the child away for a considerable length of time, and some court decision can be made, in the best interests of the child the court will usually grant custody to the

parent with whom the child is currently residing. This is done to prevent any further upheaval in the child's life and routine, which is reasonable.

It would seem to me, Mr. Speaker, that what we have here is just the tip of the iceberg. There are reasons why some parents feel compelled to take this outrageous step. I submit that it often comes as a direct result of the inequitable way in which custody is awarded in the first place, and frequent denial of reasonable access. At present it is customary for a mother to receive custody of the children. It had traditionally been assumed that, except in the most extraordinary circumstances such as mental illness, alcoholism, or active indifference to the children, the mother is best able to care for the children, even if she is a prostitute. It is thought that she can fulfil the child's needs and that less strain is placed on a child if he or she is placed with his or her mother.

There was, and still is, a strong social stigma attached to a mother who decides she cannot manage her children by herself. Many mothers who love their children, but realize they are unable to take care of their offspring were, and are, forced into a position where they must accept the responsibility, which can be detrimental to both the mother and the children. Lest some hon. members think that I am exaggerating, let me illustrate more fully.

Statistics Canada reports that irrespective of who initiates the court action, the wife most frequently obtains custody of the children. In 1971, of the men who initiated court action, 40.20 per cent obtained custody. This compares to the 89.17 per cent in favour of women. In 1972 it was 37.55 per cent to 88.22 per cent; in 1973, 37.24 per cent to 88.38 per cent; and in 1974, 35.34 per cent to 87.70 per cent. This represents an average, 1971-1974, of 37.32 per cent in favour of the father, and 88.28 per cent in favour of the mother. Obviously this is discriminatory.

According to the Toronto Star of August 25, 1976:

Fathers who Filed for divorce won custody in 32 per cent of the cases but in only 3.7 per cent of the cases when the mother started the action.

In the same vein the Ottawa Citizen stated on June 12, 1976:

To a father anxious to retain custody of his children it is obviously wiser to be the one suing for divorce.

In the majority of cases that have come to public attention it has been the father who has resorted to kidnapping to gain access to his children. This indicates to me that there is another problem here than outright kidnapping, and that is how custody is awarded.

Concerning the Law Reform Commission, the Globe and Mail reported on June 12, 1976:

The court would decide which spouse should have custody of the children on the basis of which parent can better care for them and without reference to which spouse was guilty of an extra-marital offence.

The Law Reform Commission suggests an extensive examination of the pre-divorce relationship between a child and its

March 15, 1977

parents, including: the kind of relationship the child has with the persons to whom custody will be entrusted; the emotional and physical need of the child; the capacity of the potential guardian to provide for the child; and the preference of the child who is at an appropriate age to make such a decision.

In working paper No. 13, under the heading of Divorce, the Law Reform Commission stated:

The courts would treat fathers and mothers on an equal basis and no sexual discrimination would be made in determining who is the more appropriate parent to assume the responsibility for the children.

I believe, Mr. Speaker, that this is the crux of the issue we are discussing. Custody is a right with responsibilities, one of which is providing reasonable access to the other parent. It should be granted on a non-discriminatory basis, after a thorough pre-trial examination has taken place, and should not be a rubber stamp decision by the court. This, I believe, is fundamental to the solution of parental kidnapping.

A comprehensive re-evaluation of all aspects of custody granting access to children must be completed. Interprovincial custody enforcement must be legislated, and then such incidents should decrease. By attaching this kind of kidnapping to the Criminal Code, we could then negotiate the return of children who have one non-Canadian parent and have been taken out of the country.

The hon. member's bill is a good solution to part of the problem. It should be incorporated into a series of changes and reforms concerning the granting and enforcement of custody so that the number of these tragic kidnappings will be reduced and eventually eliminated.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
Permalink
IND

Leonard C. Jones

Independent

Mr. Leonard C. Jones (Moncton):

Mr. Speaker, as usual my remarks will be most brief. Everything has been said that should be said on this subject, and in fact some of it has been said a second time.

I commend the hon. member for Surrey-White Rock (Mr. Friesen) for putting forward this bill and for the statements he made on it, and I also commend all other hon. members who have spoken on the bill.

Some hon. members who have spoken are lawyers. I do not hold that against them because I myself am a practising lawyer. I too have practised some family law. Any lawyer who has practised or is practising has a great deal of experience in these matters and suffers some of the problems that the parents and the youngster suffer. What happens in child abduction creates heart rending experiences. Often the child becomes the pawn, he becomes a chattel instead of a human being. This is what this amendment purports to stop. It is often the hatred for the other parent that the abductor inflicts upon the child. It is not enough that the innocent child must suffer the mental trauma created as a result of the separation of the two parents, a crime for which often the child is blamed. Why must we condone child abduction also? We, as members of parliament, cannot in all consciousness allow this injustice to continue.

I will conclude briefly by saying that we should permit this bill to go immediately to the appropriate committee for study

Criminal Code

and any necessary technical changes. We must do it, I was going to say tout de suite, but since I do not speak French too well, I will say, immediately.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
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LIB

Mike Landers (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada)

Liberal

Mr. Mike Landers (Parliamentary Secretary to Minister of Justice):

Mr. Speaker, I would be remiss in my duty if I did not thank the hon. member for Surrey-White Rock (Mr. Friesen) for providing the House an opportunity to discuss child-napping, a matter of most serious concern to Canadians. This question has concerned the federal government for some time. The Minister of Justice (Mr. Basford) discussed the matter with the attorneys general of the provinces at the federal-provincial conference of attorneys general in October of 1975. At the end of their discussions at that 1975 conference the minister called on the provincial attorneys general to come forward with suggestions on how section 250 of the Criminal Code of Canada might be improved in order to deal with the problem of child-napping. As yet, not one of them has put forward a proposal.

There may be a temptation on the part of some to ask why the federal government does not go ahead on its own and change the Criminal Code. However, I am sure that most of us are aware that the Minister of Justice has an undertaking with provincial attorneys general that there will not be any amendments to the Criminal Code without consultation with them. This, of course, is quite proper since it is the provincial attorneys general who are responsible under the BN A Act for the administration of justice within the provinces.

In the meantime, five provinces have passed legislation to facilitate the interprovincial enforcement of custody orders, and three more provinces have such legislation at various stages in the legislative process. I must say that I welcome this because I think that to a very great extent this is a problem that is best dealt with by provincial legislation.

The criminal law is too blunt an instrument to deal with the problem-a problem which exists entirely within the context of the breaking up of the family. It would be nice if the proposals contained in Bill C-221 would do the job and bring an end to child-napping. But they would not. Indeed I would say on the basis of the experience I have had as a lawyer that no jury in the country would, with the potential of a life prison sentence, convict a parent for having taken his or her own child to another jurisdiction.

I suspect that one reason why the Minister of Justice has received no response from the provinces to his request of 18 months ago for proposals for a change in section 250 may very well be that the provincial governments, having studied the problem, have decided that the Criminal Code of Canada is a totally inappropriate instrument for dealing with this very disturbing problem. That would perhaps be why so many of them have chosen to go with the legislation I mentioned a moment ago.

However, I do not wish to minimize the problem of childnapping. I think we are all aware of the heart rending cases of parents who have been deprived of the custody of their children in violation of valid custody orders. As legislators we

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March 15, 1977

Criminal Code

cannot help but be touched by the sense of loss and the helplessness that they must feel, and which has been articulated so well by Mrs. Lois Preston of Surrey and her Association of Parents of Kidnapped Children.

For the record I would like to refer to a press release which followed the federal-provincial conference of attorneys general in October, 1975. At the conclusion of that conference the press release pointed out that in relation to child-napping by parents:

... the Ministers were all of the view that this was a serious social and legal problem in Canada and agreed that both levels of government would take early action to develop a more effective legal framework whereby children abducted by a parent will be returned to lawful custody. The federal minister, commenting on the present provisions of the Criminal Code respecting kidnapping and abduction, invited provincial ministers to respond to his suggestions for possible amendments which might make these provisions more readily applicable to this situation. The provinces all agreed to consider following the lead of Manitoba in enacting legislation to give extra provincial effect to the enforcement of custody orders. It was hoped that such action by the provinces might facilitate progress in the international area as well.

There has been some comment with regard to Section 250 of the Criminal Code and amendments thereto, and I would like to put that section on the record. It states:

Every one who, with intent to deprive a parent or guardian or any other person who has lawful care or charge of a child under the age of fourteen years of the possession of that child, or with intent to steal anything on or about the person of such a child, unlawfully

(a) takes or entices away or detains the child, or

(b) receives or harbours the child,

is guilty of an indictable offence and is liable to imprisonment for ten years.

Subsection (2) states:

This section does not apply to a person who, claiming in good faith a right to possession of a child, obtains possession of the child.

Mr. Speaker, I move, seconded by the hon. member for Vancouver-Kingsway (Mrs. Holt):

That all the words after "That" be deleted and the following substituted therefor:

"Bill C-221, An Act to amend the Criminal Code (abduction of child), be not

now read a second time but that the order be discharged and the Bill

withdrawn and that the subject-matter thereof be referred to the Standing

Committee on Health, Welfare and Social Affairs".

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
Sub-subtopic:   AMENDMENT RESPECTING ABDUCTION OF CHILDREN
Permalink

Amendment agreed to.


March 15, 1977