GOVERNMENT'S RESPONSE TO THE FOURTH REPORT OF THE STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
RESPONSES TO THE RECOMMENDATIONS (continued)
The Subcommittee recommends that the Solicitor General, in consultation with the RCMP, the Canadian Association of Chiefs of Police (CACP), provincial and territorial ministers responsible for law enforcement and accredited search agencies, establish a working group to review police training, policies and procedures concerning the investigation of missing children with a view to improving current police responses to reports of child abduction. As part of the overall review, the Subcommittee further recommends that the federal, provincial and municipal law enforcement agencies take the reforms proposed by this Report fully into account in developing police training curricula and promoting a stronger awareness among officers and recruits of their role in preventing international child abductions.
The RCMP's Missing Children's Registry currently provides training to any police agency in Canada that requests it. In particular, it has developed a specialized two-day workshop on child abduction. Across Canada, 10 workshops were held in 1997 and 12 workshops have been held so far in 1998.
Workshops have also been offered and presented to agencies outside of Canada. In 1996, the Canadian embassy in Warsaw, Poland, sponsored a workshop which was attended by representatives of a number of Eastern European countries. As well, the Registry has made presentations to INTERPOL meetings and other international conferences.
The federal Government will continue to support any effort to ensure proper training to improve current police responses to reports of child abduction. Among other things, the RCMP's Missing Children's Registry is currently planning workshops for numerous police services in Canada as well as US agencies. The RCMP's Missing Children's Registry will also include the reforms proposed in the Subcommittee's Report as part of the training curriculum in upcoming workshops.
The Canadian government is also exploring the possibilities of cooperation with European-based agencies and non-governmental agencies on training programs for law enforcement officers on parental child abduction.
The Subcommittee recommends that the Solicitor General, in consultation with the RCMP, the Canadian Association of Chiefs of Police (CACP) and provincial and territorial ministers responsible for law enforcement, establish a working group to develop a mandatory policy directing police officers to report suspected child abductions to the Missing Children's Registry and to enter missing children reports on the Canadian Police Information Center (CPIC).
In the current system, entering a missing child on the Canadian Police Information Center (CPIC) or reporting one to the Missing Children's Registry is a matter of policy for each law enforcement department.
As a matter of policy, for example, a police department may decide not to enter a child on the CPIC until the child has been missing longer than a set period of time or even not to enter a child if the departmental policy stipulates that a child reported more than three times is a chronic runaway and will not be entered. In parental abduction cases, the department might enter only the wanted person (i.e. abducting parent) and not the child.
Mandatory reporting is necessary to ensure that a greater number of international child abduction cases are acted upon as soon as possible. Also, the recording of all cases is essential to develop a comprehensive statistics system, as advocated in Recommendation 1.
The RCMP's Missing Children's Registry will study ways to implement a policy of mandatory reporting of international child abduction. Among other things, the CPIC computer software could be modified to include information on whether the parental child abduction is presumed to be domestic or international.
Furthermore, in order to ensure that cases of parental child abduction are indeed recorded in the CPIC system, the RCMP will work with the Canadian Association of Chiefs of Police to promote and implement the mandatory reporting of international child abduction.
The Subcommittee recommends that the Federal-Provincial-Territorial Family Law Policy Committee consult with those with experience with parental child abduction cases with a view to amending section 283 of the Criminal Code to provide the courts with clearer guidance as to the criminal nature of parental abductions in the absence of the custody order.
Canada has criminalized parental child abduction through section 282 of the Criminal Code where a custody order is in effect, and section 283 for situations where there is no custody order. In the latter cases, the Attorney General must consent to the laying of criminal charges.
The federal and provincial government policy is that parents should make use of proper civil law procedures before resorting to the use of the criminal justice system to resolve custody and access disputes. Accordingly, section 283 was worded so that only those cases in which removal from a jurisdiction is willful and done with criminal intent are considered criminal in nature.
The approach favored by the Federal-Provincial-Territorial Family Law Committee has been to develop model parental child abduction charging guidelines, such as the ones adopted in 1990, to help apply sections 282 and 283.
The Government of Canada agrees that clearer guidance as to when and how charges may be laid under sections 283 and 282 of the Criminal Code is needed, but does not believe that it is necessary to amend both provisions to achieve this goal.
A subcommittee of the Family Law Committee and the Coordinating Committee of Senior Officials in Criminal Law has just completed a revision of the 1990 Model Parental Child Abduction Charging Guidelines. These revised guidelines consistent with this Recommendation, are intended to clarify what should be considered criminal behavior in the absence of a custody order, i.e., cases falling under section 283. The guidelines also apply to section 282 situations, where there is a custody order in effect.
The final draft of these guidelines is currently being reviewed nationwide by Deputy Ministers of Justice and Deputy Attorneys General. It is then expected to be referred to Ministers for final approval. The revised guidelines will be provided to Crown prosecutors, police, lawyers, and Central Authorities, and also used as the basis for training sessions on sections 282 and 283 of the Criminal Code.
The Subcommittee recommends that the Government of Canada enter into discussions with countries with which it has negotiated an extradition treaty in order to encourage them to recognize that parental child abduction is a criminal offence whose commission should be subject to an extradition order.
It is important to point out at the outset, that extradition procedures are designed to return the abductor to Canada for prosecution and do not ensure the return of the abducted child. Put another way, while the request for extradition may act as an incentive for the abductor to return the abducted child, extradition procedures do not ensure that this will happen.
A suspect can be extradited from a country with which Canada has an extradition agreement only if the conduct constitutes a criminal offence and/or extraditable offence in both countries. This is referred to as "dual criminality". In the present context, parental child abduction needs to be a criminal offence not only in Canada, which it is, but also in the country where the alleged abductor is located.
The current negotiating practice is to draft extradition treaties that will cover the offence of child abduction by basing extradition on conduct which is an offence in each country but without listing particular offences. The new extradition legislation (Bill C-40), now before the House of Commons, enhances the scope for extradition procedures by providing for extradition without treaty for designated countries or, in specific cases, with any country based on the same principle.
At the same time, encouraging countries with which Canada has negotiated an extradition treaty to recognize parental child abduction as a criminal offence can prove to be difficult. For reasons often relating to culture and religion, several of these countries have not followed Canada's lead. Criminalizing certain activities and behaviours falls squarely within matters of internal sovereignty, which makes it much more delicate to encourage than the conclusion of extradition treaties. In fact, efforts by Canada to have parental child abduction criminalized may be perceived by these countries as an intrusion into their domestic affairs.
The Subcommittee recommends that officials of the Passport Office, in consultation with those who have experience with international parental abduction cases, including accredited search agencies and family law lawyers, review existing measures for processing passport applications for children and examine options with a view to strengthening such procedures.
Under the current policy of the Passport Office, custodial parents applying for passport services for children have two options. They may choose to have a separate passport issued to a child or to have a child's name added in one parent's passport. In both situations, the consent of both parents is required. Approximately 102,600 children's names were included in parent's passport in 1996-1997, while some 136,900 children were issued separate passports.
Both services have advantages and disadvantages. For instance, the addition of a child's name in a parent's passport is a simple and economical way for parents to travel with their children as no fee is involved and no photographs are required. On the other hand, since no photograph of the child is included in the parent's passport, child smuggling is possible because a person may travel to Canada accompanied by any child of the same sex and approximately the same age of the child referred to in the passport.
Individual passports for children bear the same fee as for adults and provide more flexibility, as the child can travel with one or the other parent or separately (e.g., for student exchange programs). Some may argue, however, that this could make abduction easier if a non-custodial parent can get a hold of the passport.
In situations involving children, the Passport Office tries to ensure the active participation of all concerned individuals, whether there is a custody dispute or not. The policy is designed to help protect the rights of all parties while attempting to prevent child abduction.
Only parents with custodial rights may apply for passport services for a child. The signature of the other parent must normally be provided on the application form to indicate awareness of the application. If the other parent has indicated awareness of the passport application (usually through a signature on the form), and has not expressed any concerns, then the Office may issue the passport (assuming that no custodial dispute exists).
If the other parent has concerns, regardless of any custodial or access situation, then it is up to him or her to seek protection of rights from the courts. In such cases, the Passport Office would wait until the matter is resolved.
Other measures to enhance child protection have been implemented by the Passport Office, such as providing a manual on child abduction to parents and not being bound by the five-day turnaround to process passport applications when children are involved. Also, upon receiving a verbal request from a parent who fears the abduction of his or her child, the name of the other parent and of the child are immediately added to the passport control list, even if no application is being processed. Another measure is to inform parents who are deprived of their custodial or access rights by court orders that are not yet final, that an application for passport services is being made in respect of their children.
The federal Government believes that it would be unreasonable to adopt a policy that would make it mandatory for both parents to file in person, an application for passport services for children.
Quite often, passport offices must process applications where one of the parents is either deceased, working in a remote area or simply nowhere to be found. In such cases, the officer assesses the validity of the reasons given for not providing the signature of the other parent, and makes a decision either to process the application or insist that the applying parent obtain further documents.
Another important factor to consider is that while approximately 87% of the applications are presented at a regional offices, 13% are still processed by mail because the applicants do not have access to one of the offices. Insisting on the personal appearance of both parents would be even more difficult in such cases.
Furthermore, the Government of Canada believes that requiring a notarized letter from the absent parent granting permission would most likely not improve the security over the current process of asking for a signature. Notarized statements can be forged, and officials might develop a false sense of security. Insisting on such documents would only have the effect of penalizing the majority of honest law-abiding citizens by forcing them to go through additional steps and expenses.
Under existing policies, Passport Office employees are expected to contact the other parent each time the slightest suspicion of wrongdoing exists. This practice is well established, and has frequently proven to be successful.
The federal Government undertakes nevertheless to review the current policy, in particular to revise the way children are identified in travel documents, possibly to require a photograph of a minor child in the passport of the parent who has documented custodial rights.
The Passport Office heads the Canadian delegation (comprising of representatives of Citizenship and Immigration Canada, RCMP and Transport Canada) to the International Civil Aviation Organization - Machine Readable Travel Documents (ICAO-MRTD) committee. This Committee is establishing standards for international travel documents. Within this forum, Canada has taken the position that individual passports issued mandatorily to all persons including children ("one person, one passport" policy) does not respond to security and safety concerns of minor children.
The ICAO is currently conducting a survey of all member states, regarding their practice on inclusion of dependents in passports and issuance of MRTDs. Canada's response to ICAO indicates that we are considering options (in terms of cost and service) and are looking into technology that will allow a dependent child's identifying information and photograph to be printed into one parent's passport.
The Passport Office does not plan, at this time, to make it mandatory for all applicants to obtain individual passports for their children. Overall, though, the Canadian Government will continue to examine ways to improve identification of minor children in travel documents.
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