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Speech in Senate Chamber: Senator Cools speaks to Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years).

Hon. Anne C. Cools: Honourable senators, I rise to speak to second reading debate on Bill C-268, an Act to amend the Criminal Code (minimum sentence for offences involved in trafficking of persons under the age of eighteen years).

This bill was created by Manitoba member of Parliament Joy Smith and by Benjamin Perrin, Assistant Professor of Law at the University of British Columbia and a self-described expert on human trafficking. This bill proposes a new offence, trafficking of a person under the age of 18 years, and also a new mandatory minimum of five years.

Honourable senators, the member of Parliament from Manitoba, Joy Smith, requested a meeting with me. I met with her on October 27, 2009. At that time I informed her that I intended to support and vote for Bill C-268 at second reading. I added that, like many senators, I am firmly opposed to any attempt to defeat a private member's bill, especially prior to its second reading. I have expressed this view on the floor of this house many times. I support debate, and I believe there should be more, not less, political debate on these questions. I respect and admire the work and dedication by private members in bringing a bill before the houses.

Honourable senators, for some successive years I have endeavoured to heal broken families and broken people. As Canada's front-runner and a pioneer in innovative services for families afflicted by violence — that is, by family violence — I worked with women, children and men wounded in the most intimate and vulnerable of human relationships. I speak of spouse-to-spouse, parent-to-child and child-to-parent violence.

I initiated and assisted in many children's aid society apprehensions of children at serious risk from their parents and guardians. Mine was the labour of love, driven by my belief in the power of love and the healing of love in mending human brokenness and psychic injury. Honourable senators, I sincerely believe that human brokenness and woundedness are the cause of most social problems, including psychopathy, crime, teenage prostitution, and so on.

Honourable senators, there are many like myself in the world. We created a lot of the language around domestic violence, battered women and so on. I would like to mention my English friend Erin Pizzey, who, in London, England, founded the first battered women's shelter in the world. She is a little older than I, but I call her my soul sister. She wrote the first popular book on domestic violence, called Scream Quietly or the Neighbours Will Hear.

It was my intervention work with families that grounded Mr. Pierre Elliott Trudeau's interest in and esteem for me. I also served on the National Parole Board as a temporary member, from 1980 to 1984. I personally interviewed many inmates charged with every conceivable offence and I was involved in making decisions about parole for them. I read hundreds of psychiatric reports and an equal number of judgments.

Here in the Senate, for many years, I worked on divorce, marriage breakdown and upholding the need of children for relationships with both parents. I have upheld the entitlement of children to the emotional and financial support of both their parents, their mothers and their fathers.

On the marriage question, I had upheld marriage as a voluntary union between a man and a woman. I defended marriage as the best place in which to procreate and raise children.

Therefore it can be said, honourable senators, that I have done my work for a lifetime, healing human beings at very close and intimate levels. As a result, I think I know something about the causes and motivations of human beings and the causes of social deviance and crime.

The Hon. the Speaker pro tempore: Honourable senators, it being six o'clock, is there any arrangement to not see the clock?

Hon. Gerald J. Comeau (Deputy Leader of the Government): I am sure that if Her Honour were to seek the views of honourable senators, we would all be in agreement that we not see the clock.

The Hon. the Speaker pro tempore: Is it agreed, honourable senators?

Hon. Senators: Agreed.

Senator Cools: Honourable senators, I have witnessed in my time many shibboleths, many ideologies and much orthodoxy. I have been shocked by the influences of ideologies and ideologues in law making and statute creation. I have studied the plethora of wrongful convictions and wrongful prosecutions and the use of false accusations in judicial proceedings. These miscarriages of justice have been so abundant in the last many years that they should give us pause and make us think deeply about their causes.

Honourable senators, I have always opposed ideology-based public policy. I consider it to be flawed and bad public policy, which has been extremely reckless with children's lives. We must uphold children and their needs.

Honourable senators, the famous Psalm 127, Nisi Dominus, informs us that:

Children are a gift from the Lord; they are a real blessing.

We owe them a lot, honourable senators.

All of us senators here are members of, in Sir Edward Coke's words, the High Court of Parliament. As senators and members of this, the High Court of Parliament, we are charged under Her Majesty's parens patriae doctrine with the high duty of upholding, protecting and providing for children. This is a paternal jurisdiction granted by Her Majesty to our Superior Court judges, not as part of their inherent jurisdiction as judges but rather as the inheritors of the law of equity which was delegated to them from the Lord Chancellor and the Lord Chancellor's courts, known as the Courts of Chancery and the Courts of Equity. Our inferior courts in this country do not possess this equity jurisdiction over children.

Honourable senators, the reason I am delving into this is because I have heard a lot said about the justice system and about children. Our Speaker, the Honourable Senator Kinsella, has a special role to play in these matters because he is the natural equivalent, in this place, to the Lord Chancellor. I wanted to put some of this on the record because it is rare in any court case for the parens patriae doctrine to be raised. I thought it would be nice, since we were talking about protecting children.

Our inferior courts do not possess this equity jurisdiction over children. They rely on the particular provincial statutes that constitute them to obtain their powers over children, and only those powers expressly given by those particular provincial statutes.

Honourable senators, it is not well known, but when Sir Wilfrid Laurier brought forth the old Juvenile Delinquents Act in 1908, he was making a good attempt, quite frankly, to seize and bring in to the cognizance of the federal system the phenomenon of children. There is no area needing more study because the provinces have appropriated most matters that concern children.

The parens patriae commands the justices to uphold the protection of the children. We have heard a lot about Bill C-268, but we have heard very little about the reasons it is thought that new offences should be created and why the old ones do not work. I am doing my little bit of work here to put some of this out for discussion.

Honourable senators, these principles about protecting children are expressly enacted in the Criminal Code in Part XXIII, which, as we know, is that part of the Criminal Code called "sentencing." The whole part deals with the phenomenon of sentencing. Section 718 of Part XXIII — and Senator Baker quotes this often — articulates the principles to which judges must adhere when pronouncing sentences.

Entitled "Purpose and Principles of Sentencing," and under its sub-heading "Objectives — offences against children," section 718.01 states:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Something like this merits study. I am hoping that the committee, when this bill gets there, will look at it.

In addition, under the heading "Other sentencing principles," which describe aggravating circumstances as a factor in sentencing, section 718.2 (a)(ii.1) states:

. . . evidence that the offender, in committing the offence, abused a person under the age of eighteen years, . . . .

I can see Senator Dyck paying careful attention because these are sections of the act that need our attention. All we know is that we have been hearing, by rumour, that this bill is urgently needed, but no one has told us anything to that effect.

Honourable senators, it is clear that the Criminal Code addresses the principles for judges in pronouncing sentences when children are involved. Superior Court judges possess this paternal jurisdiction. I did a lot of study on paternal jurisdiction, especially relating to matters of divorce. At some point in time, we must devise ways that children can have representatives in these cases. I believe that is the jurisdiction that we have to look to. Lawyers who were trained a long time ago might remember the phenomenon of proctors representing children.

Honourable senators, we are told indirectly — actually, we have only heard rumours — that this bill is absolutely necessary and urgently required. No one will tell us why. This is a private member's bill, not a government bill brought to us by the Minister of Justice under ministerial responsibility. The Minister of Justice, I notice, has not made this bill his own and has not released to the sponsor the whole phenomenon of his departmental staff, which is what a minister is supposed to do when he chooses to support a private member's bill.

In addition, no one will tell us why this new proposed Criminal Code offence is needed.

Another thing that worries me with this bill is that the advocates of the bill speak of trafficking and sexual exploitation as though they are one and the same thing. To my mind, there are distinct differences between trafficking and also trafficking for sexual exploitation, but there is the distinct phenomenon of trafficking. We must look at that in the committee.

In recent times, we have been told that the total and complete panacea for every problem is to legislate mandatory minimum sentences.

I do not believe that mandatory minimum sentences will cure either the problems of the criminal justice system or the social problems that cause these offences. This is a deep matter, and these are deep questions that need serious attention from government and, I would admit, deep study in this place.

Honourable senators, the term "mandatory minimum sentence" has become a mantra repeated ad infinitum. It is a shibboleth; it is an orthodoxy. It is also the latest political fad, the latest quick fix implemented without serious study or serious evidence being put before us.

For some years now, I have been concerned that governments seem intent not only to prescribe the laws that guide judicial decisions on sentencing but also seem now to be prescribing the decisions and the sentences themselves. That is a very serious matter, honourable senators, and this intrusion has been happening for quite some time.

The Hon. the Speaker pro tempore: Honourable Senator Cools' time has expired.

Are you asking for more time, Senator Cools?

Senator Cools: Yes, for five minutes, please.

The Hon. the Speaker pro tempore: Is that agreed?

Some Hon. Senators: Agreed.

Senator Cools: This invasion of the judicial role is in need of careful study. I am concerned that judicial discretion in sentencing, which is exercised publicly in open court, will be transferred from judges to prosecutors and policemen in the mostly private process that is called plea bargaining. The thing about a discretionary system is that it is pushed around from place to place.

It is well known, honourable senators, that when constitutional relationships between the judiciary, the houses of Parliament and the government are disturbed, judges will speak in public places on these questions, which is happening more and more. I have read statements made on the matter of minimum sentences.

Honourable senators, I believe that we should seek to discern the views of the judges themselves. I hope that the committee will look at this matter and invite witnesses to answer the many questions that have been glossed over but which are fundamental, especially when a new criminal offence is being created.

Honourable senators, I support this bill. However, it has serious deficiencies in its drafting. Undoubtedly, these problems will be addressed during committee study. I must say that I am pleased that the question of sexual offences against children has been put before us. This house must take the necessary steps to ensure that Canada has a good and sufficient Criminal Code in respect of children. We must protect children, particularly those children who are at risk to be victims of crime.

Sexual offences against and with children are especially abhorrent. It is a terrible thing when children are robbed of their childhood and of their innocence for the sexual gratification of unscrupulous adults. These offenders and their crimes are especially obnoxious. As a matter of fact, these crimes offend all of our sensibilities. Furthermore, these children will carry these scars and wounds for their lifetimes. I have worked with many of them and I have known of many of their suicides.

I believe that we need to do much more than we are doing for these young people at risk. These matters need serious study in the committee, particularly the phenomenon of adults who need sexual gratification from children. It frightens us all, but it is time that we study it, because it shows up again and again in the literature. We think of it as "this incident" and "that case," but it is time for us to look at the heart of darkness that it is.

Honourable senators, in closing, I wish to advocate for what Montesquieu called certainty in sentencing. To quote Sir William Blackstone from his famous Commentaries on the Laws of England from the 1700s, in Book IV edited by George Sharswood, Blackstone, speaking about Montesquieu, said:

It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action, that crimes are more effectually prevented by the certainty than by the severity of punishment. For the excessive severity of law (says Montesquieu) hinders their execution.

Anyone experienced in the criminal justice system can tell you that is as true today as it was in Blackstone's or Montesquieu's time. As a matter of fact, there is a famous example in the old literature where the death penalty was prevalent for everything. When the reform movement started to attempt to change that, they observed that, for example, robbery with murder carried the same penalty, that being death, as robbery alone. The result was pretty clear: When there were robberies, there were more murders.

There is much literature on this subject. We must understand that many of these reforms are relatively recent. Even in Canada, in old documents like the Archambault report on penitentiaries you see mention of children —

The Hon. the Speaker pro tempore: I am sorry, Senator Cools, but your time has expired.

Senator Cools: Can I finish the sentence?

Certainty of punishment is achieved when the component parts of the Constitution work together based on well-established principles towards justice and towards the certain and just punishment for offenders who have harmed children. We must examine the consequences of abusive power in the criminal justice system by those who enforce and prosecute. They are causes for why the systems have gone so far.

Honourable senators, we serve the children of this land best when we uphold the words of St. Paul in the book of Philippians where Paul exhorts us to do that which is honourable and just and true.

I close by quoting Psalm 127 in its entirety from the Good News Bible:

If the Lord does not build the house, the work of the builders is useless; if the Lord does not protect the city, it does no good for the sentries to stand guard.

It is useless to work so hard for a living, getting up early and going to bed late.

For the Lord provides for those he loves, while they are asleep.

Children are a gift from the Lord; they are a real blessing.

The sons a man has when he is young are like arrows in a soldier's hand.

Happy is the man who has many such arrows.

He will never be defeated when he meets his enemies in the place of judgment.

I thank honourable senators for their attention. Again, these are very serious questions that have been put before us.

(On motion of Senator Carstairs, debate adjourned.)


The remainder of this day's Senate Debates are available here.