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Standing Committee on Justice and Human Rights


NUMBER 029 
l
1st SESSION 
l
41st PARLIAMENT 

EVIDENCE

Thursday, March 29, 2012

[Recorded by Electronic Apparatus]

  (1105)  

[English]

     I would like to call the meeting to order, this being meeting number 29 of the Standing Committee on Justice and Human Rights.
    Pursuant to the order of reference of Thursday, February 2, 2012, we will be considering Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials).
    Just before we begin there's a little bit of committee business. If we can clear it up before we start, it will be over. It is the budget for this particular bill. It has been circulated. It is less than the amount that requires us to go to the Liaison Committee, but we do have to have approval for it. Would somebody move the approval of the budget for Bill C-217?
    It seems rather high.
    The clerk just mentioned that we did pay an extra fee for somebody who drove one of the witnesses here, an elderly witness. [Technical difficulty--Editor]
    With all the problems that...[Technical Difficulty—Editor]...adopted by Conservatives, I won't speak on that one.
    Thank you, Madam Boivin.
    Mr. Chair, I note that we do have two witnesses here today, but I would also wish to indicate for the record that there's also a presentation to the committee, in both official languages, in the form of a letter from the Dominion Command of the Royal Canadian Legion's president, Patricia Varga.
    We also have a letter from professor Archibald Kaiser of Dalhousie University addressed to you, sir, which is being translated at the moment and is not available in both official languages. We're advised it will be available by 11:30 a.m. and with the consent of the members we'd have it made part of the record at that time.
    Thank you.
    Having completed that business, I would like to welcome our witnesses: Ms. Latimer from the John Howard Society of Canada, and as an individual, Mr. Russomanno.
    Both of you have appeared before our committee several times in the past, and as in the past there is the opportunity to make an opening address between seven and ten minutes, and I'll let you know when you get to nine.
    Thank you very much. It's great to be back before the committee.
    As you know, the John Howard Society of Canada is a community-based charity that has a mission to support effective, just, and humane responses to the causes and consequences of crime. We're very pleased to speak to you today about Bill C-217, which proposes amendments to the mischief section of the Criminal Code to define a specific offence relating to war memorials, and to make it punishable by mandatory minimum penalties.
    We all respect those who fought on our behalf to uphold our values, and we recognize it is hurtful to many when commemoratives recognizing their contribution are treated disrespectfully. I would point out that an offence already exists in the Criminal Code punishing those committing such offences with up to two years in prison.
    From the John Howard perspective the private member's bill raises two classes of concerns. One, is it consistent with principles of criminal law? And two, would it be an effective approach to the problem?
    In relation to the principles of the criminal law, it should be asked whether this behaviour warrants its unique offence definition, and if so, whether there should be mandatory minimum penalties for it.
    Good criminal law principles prefer broad categories of offences rather than particular offences. For the law to command public assent and respect, it must display a principled, rational, coherent structure rather than ad hoc responses to particular concerns. This is especially true when particular crimes naturally fit under broader categories already recognized, either in the Criminal Code or in criminal law theory. The evolution of the law from particularistic and narrow concentration on the endless detail of social disturbance to its modern, streamlined, rational categories, parallels the growth of society analyzed by the sociologist Max Weber in his discussion of the transition from particularism to rationalism.
    Unfortunately, the Canadian Criminal Code is already marred by too many particularisms and too little respect for general principles. Examples of these atavistic regressions to an earlier kind of law include criminalizing not simply theft but also stealing a car, dealing with cattle, and appropriating drift timber, rather than simply filing these sensibly under a broad category of theft. The private member's bill, by creating a special crime of particular types of mischief, continues this unfortunate usage.
    Since all legal particularisms fail to comprehend that the generality of law enhances its capacity, simply and efficiently, to respect the equal claim of all people to the criminal law's protection, this latest venture will invite those valuing other monuments to ask why they are not also given equally special protections. Monuments to terrorist victims like Air India, commemorations of the Holocaust, or to the starvation victims of the Ukraine, the forced march of the Armenians, and the killing at the École Polytechnique, must be publicly slighted, if only by implication, by this preference of the Criminal Code for the war memorials. Equally courageous firefighters, nurses, and medics who die in public service will legitimately ask why the government chooses to deny equally enhanced protections for their monuments.
    Another key principle of the Criminal Law is that the penalty should reflect the seriousness of the crime and the degree of responsibility of the offender. This is clearly set out in section 718.1 of the Criminal Code and finds its roots as far back as the Magna Carta of 1218. The Magna Carta in fact provides that a free man shall not be amerced for a slight offence except in accordance with the degree of the offence and for a grave offence, he shall be amerced according to the gravity of the offence.
    Mandatory minimum penalties deny judges the opportunity to impose some proportionate penalties, and they are always unfair to those whose proportionate penalty is less than the stated minimum. The John Howard Society opposes mandatory minimum penalties. These penalties, the mandatory minimums, also create backlogs in the system and problems with the administration of justice. Many provinces already are experiencing serious delays, and we're expecting more delays when Bill C-10is proclaimed in force.
    The next category is really dealing with how effective this approach might be. Will the imposition of penalties achieve the purpose of encouraging respect for war memorials? The research is fairly clear that penalties do not deter. In fact, the escalating mandatory minimum penalties in this scheme seems to contemplate that the initial mandatory minimum penalty would not be sufficient to stop the behaviour.
    There are, however, approaches that are successful at helping those who have committed mischief to understand the consequences of their behaviour, to feel remorse, and to refrain from such behaviour in the future. Restorative justice approaches, for example, are clear examples where you see some effective amelioration of behaviour. It is likely that some of the extrajudicial measures or alternative community-based sentences might be more effective at achieving the stated purposes of this bill, but the mandatory minimum penalties provisions would preclude their use in these circumstances.
    Moreover, public awareness and education programs might be more effective than invoking the criminal law at achieving respect for war memorials. It would also avoid a young person acquiring a criminal record for a thoughtless indiscretion, which would compromise the contribution that he or she might be able to make to society in the future.
    In conclusion, the John Howard Society of Canada urges you not to pass Bill C-217. While we support the goal of promoting respect for our war memorials, we believe that this bill will not achieve that purpose through the proposed criminal law reforms. These reforms are inconsistent with key principles of criminal law, including broad rather than particularistic offence descriptions and proportionate penalties.

  (1110)  

    The Criminal Code provisions are adequate now and could be buttressed with public education or tailored programs. The proposed changes will legitimately lead to others asking why the government chooses to deny equally enhanced protection to their monuments.
    Thank you very much.

  (1115)  

    Thank you.
    Mr. Russomanno, if you have an opening address, go ahead.
    First off, I'd like to thank members of the committee for inviting me again to speak here. It's always a pleasure to take part in this dialogue with members of Parliament on issues of criminal law. I'd ask that you go a little bit easy on me today. I've had about 24 hours to review this legislation.
    But just by way of introduction, I'm a criminal lawyer. I practise exclusively in criminal law, with Webber Schroeder Goldstein Abergel here in Ottawa, and I've had almost four years' experience as a criminal lawyer. I've appeared for all levels of court, including the Supreme Court of Canada, the Ontario Court of Appeal, the Federal Court, the Superior Court, and the Ontario Court of Justice.
    As I said, I always enjoy being a part of this political process. In that vein, I would also say that I would appreciate any sort of involvement that members of this committee would like to have back in my arena, in the courthouse, and particularly with respect to this legislation in plea court where there are dozens of sentences handed out every single day. I would certainly welcome any member of this committee to attend the courthouse and I'd be happy to host you if you did decide to come down.
    First of all, just in my review of this proposed legislation, by specifying mischief as it relates to war memorials, I think it's very obvious that what is being proposed is really a message from Parliament to sentencing judges that this is an expression of condemnation from Canadians with regard to mischief as it relates to war memorials. It's hard to really dispute that the offence of mischief as it relates to war memorials and our veterans and the sacrifices they have made for us is a particularly despicable form of mischief. So in terms of the message being sent from Parliament, that is something that would be loud and clear.
    My particular issue with respect to the proposed legislation has to do with mandatory minimum sentences. I'm sure you've heard me say in the past what my views are with respect to mandatory minimum sentences. It's another kind of message that I have a little bit more difficulty with. The message that's sent by using mandatory minimum sentences is that courts are not getting the sentence right.
    There are ways to send a message that this particular kind of mischief is a particularly heinous act that deserves specific condemnation from the courts, without necessarily binding the courts' hands. My concern, really, is as it relates to the minimum sentence of a fine, which would effectively preclude the handing down of a conditional discharge, which would effectively allow someone not to have a criminal record as a result of that.
    I will just go through what exactly is a conditional discharge. A conditional discharge can attract a lengthy term of probation—up to three years—which would include quite onerous conditions. In fact, in my practice oftentimes I tell clients that a probation term of up to three years is far more onerous than having to pay a $1,000 fine. It could include conditions such as reporting on a weekly basis, attending any programming, or counselling. It could include hundreds of hours of community service, charitable donations, and the like.
    I will speak in terms of my practice. If you're going to set out to establish to a sentencing judge that a conditional discharge is appropriate, the test that's laid out in the case law is this. Number one, is the conditional discharge in the interest of the offender? Number two, is it in the public interest? Most of us can get past the first hurdle of establishing that a conditional discharge is in the interest of the particular offender quite easily, because oftentimes when you're dealing with someone who doesn't have a prior criminal record, they might have career prospects or some other prospects that would effectively be precluded if they were to have a criminal record.
    The second, and most significant hurdle to getting a conditional discharge, is whether it's in the public interest. That's usually what it comes down to. I can't really say I've dealt with many acts of this particular kind of mischief. We have had experience in our firm with cases involving theft of donations that were made for Remembrance Day. I can tell you that judges in sentencing courts do not look very kindly on these kinds of offences. It is automatically seen as an aggravating factor.

  (1120)  

     That being said, I have a hard time quibbling really with the notion of Parliament sending a message by specifically referring to this kind of offence as aggravating.
    As I said, it's the mandatory minimum that's a problem. From my perspective, the mandatory minimum sentence really transfers discretion from the judge to the Crown attorney. The reason I say that is because if you're dealing with a mandatory minimum sentence where, say, a fine is the minimum, we still have the general mischief provisions. We also have a Crown discretion to withdraw a charge.
    From practice, I can tell you that if I have clients that come to my office, charged with this type of offence—and I haven't dealt with this specifically but I'm talking hypothetically—and are interested in resolving this charge, I would tell them that they really need to take some proactive measures if they want to have the benefit of a conditional discharge at the end of the road.
    Say I have a client that has no criminal record, is a university student, and has career prospects, these prospects would be absolutely devastated by a criminal record. They come into my office and say that this is the result they want. My response would generally be that if you want to resolve it and get the benefit of a conditional discharge, you need to take proactive steps. I would, for example, suggest doing many, many hours of community service in something that in this case would be related to veterans, perhaps the Legion or something in relation to the War Amps, making a charitable donation, or doing as much as possible really to atone for one's actions.
    If the action had something to do with substance abuse, I would recommend that the person go and take proactive steps to get that issue addressed, so that before we even go to court on the first occasion, before I even meet with the Crown, that person has taken proactive steps. I'm able to use that to try to convince the Crown that a conditional discharge is in the public interest.
    Now, supposing that this offence had a mandatory minimum of a fine, my response or my negotiation with the Crown would relate to either trying to convince them to impose or to withdraw the mischief charge all together, in lieu of those proactive steps being taken, or alternatively, to enter a plea to the regular mischief under section 430 of the Criminal Code.
    Failing that, if I'm unable to really get the Crown's agreement, there's really nothing to be gained from a guilty plea because a conditional discharge is not available. I don't think the importance of the hope of a conditional discharge can really be overstated. It leads to people charged with these offences to be much more willing to resolve their charges if there is at least the possibility of a conditional discharge.
    I would also venture to say that in some cases, if not in most cases—and I've seen this referred to in some of the debates that surrounded this bill—these kinds of restorative steps are taken, consistent with atonement for one's actions, and are actually more punitive in nature than the simple imposition of a fine.
    I would say that a fine might not necessarily be the most logical place to start with here. There are other kinds of conditions and sentences that can be imposed, which bring the message home to the offender that what they did was a particularly heinous act, and also express the denunciation that I think most of us can agree all Canadians would want to be sent as a message as a result of these actions.
    I'll just be brief about the sentencing model that's being imposed in terms of the mandatory minimum. It looks like it was taken almost exactly from the impaired driving provisions. The impaired driving sentencing model really gets at the scourge of impaired driving in our society. We can all agree that there are far too many offenders who are repeat offenders with respect to impaired driving and that can be classified as incorrigible offenders. That kind of sentencing scheme is getting at that, not only to give specific deterrents but also general deterrents to society at large.
    Looking at this provision for the one, two, three strikes, and the ever-increasing penalty, it seems almost completely unnecessary. I can't imagine somebody that would be desecrating a war memorial for the third time. If that were the case, I can almost guarantee that a sentencing judge would look at that very seriously. I don't think we really need to send a message of a mandatory minimum.
    I'll leave my comments at that.
    Thank you.

  (1125)  

    Thank you.
    Mr. Harris.
    Thank you, Chair.
    I want to thank both of the witnesses for coming. In particular, Mr. Russomanno, not having more than a day to look at the section, you gave us a good practical practitioner's view of what happens in the courts.
    I'll speak to Ms. Latimer first, if I may. As I mentioned at the outset, we had correspondence before the committee from the president of the Dominion Command of the Royal Canadian Legion who says that the membership is strongly in favour of recognizing the serious nature of the incidents—talking about vandalism on war memorials—and the consideration of the feelings and emotions expressed by Canadians, all Canadians, against such actions. She says:
We do however feel that the provision of appropriate penalties suitable to the individual particulars of an incident should reflect the nature of these acts and there should be latitude in assessing the gravity of the situation.
    She goes on to say:
The punishment should fit the crime and although no incident of this nature can be condoned, there should be provision for restorative justice measures with a mandated dialogue between veterans groups and the offenders. There should be provision where offenders are encouraged to take responsibility for their actions, to repair the harm they have done by apologizing to a group of Veterans, or with community services. It provides help for the offender to avoid future offences and provides a greater understanding of the consequences of their actions.
    I guess I could ask if you agree with that or not, but I would probably preface it by asking if you're concerned about the mandatory minimum, because it precludes what Mr. Russomanno was saying about having a conditional discharge or some other form of alternative sentencing provisions. Are we going to be able to do what the president of the Dominion Command suggests?
    I absolutely agree that there is much benefit in restorative justice, alternative approaches, and some of the community-based sentencing alternatives. Certainly the mandatory minimum penalties, where your first penalty will be a fine, is probably an approach which does not lend itself to that educative, restorative milieu, which works very well, particularly with young people or with others who may have acted spontaneously and not really thought about the consequences of their behaviour.
    I think, in many cases, if you can invite these people together with the people who were hurt by their actions, it is a much more constructive learning process and resolution of the issue than simply imposing the penalty. Sometimes the process by which you get to the penalty is actually more important, in terms of restoring social order and preventing such behaviour from happening in the future.
    Thank you.
    Mr. Russomanno, I was interested in your comments and comparison to the sentencing scheme in the Criminal Code in relation to impaired driving—as you say, the scourge of impaired driving. I mentioned that sentencing the other day, myself, because I noticed the very strong similarity.
    We've had, I suppose, 30 years of an attempt by Parliament, through the Criminal Code and society in general, to change social attitudes towards impaired driving. The thousands and thousands—perhaps hundreds of thousands—of deaths over the years caused by impaired driving obviously gave rise to a strong response. Is there any proportionality with respect to that kind of sentencing regime for something like that and what's called mischief, but what's really damage to property? Do you see that as enhancing respect for the law, or do you see it causing other problems?
    You're talking about importing the model from impaired driving into these mischief provisions.
    I don't really think it does much to enhance respect for the law. As I said, I think there are some conditions that could be attached to a probation order that would do much more in terms of really instilling that kind of respect in a particular offender. There's really a lot of flexibility in probation orders to do that sort of thing. When you attach that to a conditional discharge, it's like the carrot and the stick model.
    I don't think that this particular model, which is related to impaired driving is of assistance in that regard.

  (1130)  

    That's it, is it?
    Thank you, Mr. Harris. You've used up your time.
    Go ahead, Mr. Rathgeber.
    Thank you, Mr. Chair, and thank you to the witnesses for your testimony.
    Ms. Latimer, I need to challenge your assertion that the Criminal Code ought not to distinguish between different classes of offence.
    You used the analogy of theft. You're quite right, the Criminal Code over time has carved out specific classes of theft and provided them with specific penalties. At one time, I think it was a hanging offence to steal cattle. It's not anymore.
    You'll agree with me that Parliament has drawn distinctions concerning specific classes of property, part of it being purely monetary. The Criminal Code distinguishes between theft over $5,000 and theft under $5,000, and similarly with mischief.
    I want you to comment. Since the Criminal Code already distinguishes a $5,000 monetary value, it makes it a more serious offence if that which is stolen or desecrated is less than or more than $5,000. Why is it not a logical extension, if Parliament so chooses, to carve out a further specific aggravating factor—although it's not to say that's an aggravating factor, it's actually imposing a stiffer sentence with respect to something that Parliament might feel needs specific protection—and that's concerning war monuments?
    Certainly, Parliament is able to do what it wishes because much of this is a value statement. The principle, or the way that criminal law has evolved, preferred criminal law, is to have it more principle-driven so that lots of things fit into the same category. I have no difficulty with distinguishing categories of theft, as in a serious theft and a less-serious theft.
    You have summary, and indictable, and there are ways to proceed. But if you start going down that road, and you have the theft of an automobile takes this, the theft of a Ski-Doo takes that, and the theft of a boat takes something else, you start to get a complexity that renders your criminal law difficult to understand. You will start to have comparisons between the various offences, and people will not.... It will not command the same kind of respect, as a rational principle, that theft of a certain category is treated more seriously than that of a lesser category.
    Many have criticized our criminal laws for being overly baroque and overly particular. I think we do need a thorough pruning of some of the material in there that is no longer relevant to Canadian society in order to get back to those basic, clear principles of what is an offence, what should be an offence, and what shouldn't be an offence.
    I don't disagree with you. I think there's still an antiquated provision in the Criminal Code that makes it a criminal offence to steal an oyster bed.
    Yes.
    I don't really know what an oyster bed is.
    I don't disagree with you philosophically, but to carry your argument to its logical conclusion, there would only be one offence of theft. It wouldn't matter whether it's less than $5,000 or more than $5,000, whether it's an automobile, whether it's a testamentary instrument—it wouldn't matter. That would be to carry your argument to its logical conclusion—one offence, theft, with one maximum penalty.
    One offence, one rather large maximum penalty, with aggravating and mitigating factors you would want the judge to look at in order that the seriousness of the behaviour could attract a penalty proportionate to the nature of the offence and the degree of responsibility of the offender.
    Yes, I think it's a better way to go, to have broad categories with some judicial discretion or guidance as to what the range should be.
    Mr. Russomanno, I think you said you have never defended an individual charged with this type of offence. In your criminal experience, from the time you’ve spent in criminal court, have you ever seen it happen that an individual was charged under the current section 430 with having desecrated a war memorial?
    I've defended many dozens of mischief charges generally, but I’ve never dealt with one specifically dealing with a war memorial. I spoke of an incident that one of my colleagues had, involving I think something quite similar, which related to the theft of money that had been donated for veterans. Through the experience of my colleague, I can say that was dealt with particularly harshly under the circumstances, and I'll leave it at that.
    It was dealt with very seriously by the sentencing judge.

  (1135)  

    So I guess you agree—
    Your time is up, Mr. Rathgeber.
    Mr. Cotler.
    It would appear to me—and I address the question to both of you—that the mischief to war memorials could be prosecuted either under the general law of mischief or under the specific applications of that general law, be it to cultural property or be it to a religious property, and a cemetery would come into it in that regard.
    My question is, when we're dealing with this particular type of offence, will the specificity of this offence have a symbolic value of such a nature that the particularity of the offence might thereby deter its commission in a way that the generality of the mischief offences, as they now appear in the Criminal Code, do not? Or do you think the symbolic particularism involved here and the specific denunciation involved here will not have any effect?
    From your question, I really glean from that two major principles of sentencing: one is denunciation and the other is deterrence. I could not disagree. I certainly would agree that, by particularizing this kind of offence in relation to war memorials, I think it's a message from Parliament that this particular kind of conduct should be especially denounced.
    Now, with respect to deterrence, I wouldn't go so far as to say that this would really have some sort of general deterrence ability with respect to the public at large. I think that's just a general problem with general deterrence, if I could put it that way. I'm not sure that general deterrence is really much of a tool in many cases, and I think this case is no different.
    Again, I don't think there's a particular problem. In fact, I think it does send a message from Parliament that this particular kind of mischief is deserving of a higher form of denunciation.
    But how does that dovetail with the notion that we should be legislating in terms of principled categories of offences rather than the specificity of offences? It seems to me here that you have your overall issue regarding how you approach legislation in matters of criminal law, and then the specific issue of denunciation and its symbolic character with regard to this specific type of offence. How do you dovetail the two?
    Well, it's difficult. I think that what Ms. Latimer was talking about in terms of a general desire to simplify the Criminal Code is something that I certainly could sympathize with, and we can leave it to the courts to determine whether something is particularly aggravating.
    At the same time, Parliament does have a right to specify and to send those kinds of messages. My problem is related more to when courts are essentially handcuffed into a particular minimum sentence.
    Hon. Irwin Cotler: Catherine?
    I would say that by making a particular offence, the message you're sending is that this is consistent with a shared or collective sense of values—that this kind of property should be held in higher esteem. Certainly, Parliament can do that. I don't think it will have any effect at all in deterring those who would otherwise be inclined to disrespect that piece of property, but I think it might do something in terms of showing a collective sense of values.
    But I think once you do that, you set up a competition amongst people who value certain monuments, and they will ask, “Why isn't our monument given the type of protection that this one is?” On the ones you point to in terms of religion and desecration of property, that's coupled by the desecration having to be motivated by bias or hate, so it's different from saying that it's not okay to urinate on the cenotaph but it's okay to go down the street further and urinate on the memorial for the firefighters....
    How do you reconcile that this type of memorial deserves greater protection from Parliament than some of the others that commemorate values that are very important to some people? A lot of firefighters and others die in the service of their fellow citizens as well. It's hard to justify why this one should be singled out.
    Hon. Irwin Cotler: It also—

  (1140)  

    Your time is up.
    Mr. Woodworth.
    Thank you very much, Mr. Chair. And my thanks to the witnesses who have appeared here today for us. I found it a very stimulating conversation.
    I'm going to open by saying thank you to Ms. Latimer for approaching this on the basis of principled legal analysis. I often am amazed when academics come before this committee. I'm thinking of one particular recent event where the academic in question went on at length about what might go wrong in the application of a law and what circumstances might arise. I finally said to her, “I understand that could all go wrong and these circumstances might arise, but what is there that you object to, in principle, with this law?”, and she had no answer.
     I'm very concerned about that because I wonder if in law school they even teach principled analysis anymore because this was a law professor who didn't seem to get it. So I want to encourage you in that. I find it refreshing. You and I might not always agree on the principles, but at least, then, we're having an intelligent conversation. I hope to come back to that in a moment. But before I do, I want to have a brief conversation with Mr. Russomanno.
    I wonder, Mr. Russomanno, if you know, historically, how conditional discharges actually got their beginning? Have you ever heard that story?
    I think I heard it a long time ago, but I don't recall right now.
    Let me remind you because it's still a useful device. And it occurred, I'm proud to say, in my hometown of Kitchener just a few years before I started practising, about 40 years ago. It was probably before you were born, I don't know.

  (1145)  

    That's correct, sir.
    We had a judge by the name of Judge J.R.H. Kirkpatrick, who was always thinking out of the box. He invented what we later came to call the rehabilitative remand. When someone appeared before him on an offence for which he knew there was guilt but he didn't think that the offence really fit the offender, he would adjourn the case before plea in order to give the offender an opportunity to do some community service work of a good kind. Providing that his instructions were carried out, on return of the matter, he would then dismiss the charge. I guess he probably had the complicit agreement of the crown in that, but it later became formalized as the conditional discharge.
    I highly recommend that device to you if you can find the right judge and if you have an offence like maybe one under this new law that you don't think fits the offender. If you can convince the judge of that, you might find a judge who would be willing, with the consent of the crown, to proceed on that basis.
     I'm very proud that kind of out-of-the-box justice innovation occurred in my hometown. In fact, there are many other innovations in Kitchener that come to the justice system. It is a way of sometimes ameliorating things.
    To go back to the issue of principles, I must say, Ms. Latimer, I am intrigued by the notion of generalisms versus particularisms. I'm familiar, from my education, with the notion that hard cases make bad laws, but I take that to refer to the particularism of specific cases rather than the particularism of general themes in the law.
    When I consider the number of general themes in the law that give rise to valid particularisms, I'm not quite convinced of the notion that there's anything particularly inherently wrong with it.
     For example, one could say that drunk driving is just another form of negligent driving. All the same, I would want to have an offence of drunk driving.
    One could say that spousal assault is just a particular kind of assault, but all the same, I would want to have specific legal reactions and systems to deal with spousal assault because there are some principles that are different in spousal assault or impaired driving as distinct from other assaults or other driving.
    What I like about what you said is that we should try to look for the principles. If I examine the principle in 217, it is that there are some kinds of mischief that deserve a particularly denunciatory approach. I agree with you that there are other kinds of mischief that probably fit within that principle, and if this was government legislation, I might want it to be a more broad principle approach that would cover all of those kinds of cases that fit within that principle. I really like the idea of looking for the principle.
    Time is up.
     I was just giving food for thought. I didn't have a question, just a good conversation.
    Thank you.
    Madame Boivin.

[Translation]

    Thank you.
    Apparently it is acceptable to make comments without asking a question. I was taken somewhat to task for doing that last Tuesday, but, there you go…
    I appreciated your testimony, which has cleared up some points for me. I would like to ask Mr. Russomanno some specific questions.
    The way in which this bill is expressed gives me the impression that, in determining that kind of sentence, they sort of had drunk driving in mind. There is a first offence, then a second, for which the sentence is 14 days, then a third, for which there is another penalty. As this is your area of practice I would like to ask you this question.
    We often see headlines like “Drunk driver: seventh time”. Then we wonder why that person has still not been put in jail and why his driver's licence has not been taken away. Perhaps this bill gives us the impression of being falsely severe. Actually, in a lot of cases, the crown does not even have the time to check the accused's record before laying the charge, either as a summary offence or an indictable offence. That is why I feel that a repeat offence of mischief, such as the destruction of a monument, may very well be treated as a first offence.
    Am I wrong in saying that?

[English]

    I'll respond in English, if I may.
    That's okay.
    My reading of the legislation is that you have to have been convicted a second time under this particular provision in order to attract the mandatory minimum second step in the sentencing. That's my understanding.
    So the crown doesn't have to attest that it's a second infraction in its acte d'accusation?
    My understanding is that it has to be a second conviction. If I were convicted of the offence two years ago, and then I come before the courts again and I plead guilty, I would be subject to the mandatory minimum of not less than 14 days. There's a 14-day minimum the second time I'm convicted of that specific offence.
    My precise question is, when they write the acte d'accusation, does the crown have to say in the infraction “this is a second”? Or, is it that as soon as you're found guilty, because you have been found guilty before, it's going to be automatically seen as a second?
    My understanding is that the police lay the charge. If it's a second time that you're convicted, then in a sentencing hearing your criminal record goes before the sentencing judge. It will be known to all that it's a second conviction.
    So it would be automatic.
    Excellent.

[Translation]

    In terms of the offences, mischief involving places of worship, it mentions someone motivated by hate or prejudice. So there is an aggravating factor that does not limit us to general mischief as described in the previous paragraph.
    Should we not do the same for war monuments? I imagine that the answer could well be yes. If we are considering war memorials to constitute a particular kind of offence, should we not at least include that concept?

[English]

    I would think that might be extremely useful.
    An example of a problem with our cenotaph here in Ottawa that happened a few years ago was that it was a young student, who I think had probably had too much to drink, urinating on the War Memorial. I don't think he intended any disrespect, but it was a disrespectful act.
     I think the subjective intention of the perpetrator is to some extent important, if an aggregating factor in sentencing is that it was particularly offensive to a certain set of values attached to the War Memorial.

  (1150)  

    Excellent. Thank you.

[Translation]

    Last Tuesday, during the testimony from Mr. Tilson, whose bill this is, I thought I gathered that, even if there is…

[English]

—a plea bargain—the person would have to pay the minimum fine anyway.
    But I find this utterly surprising, as an understanding of the bill, because if there is a plea bargain, usually it's for a lesser included offence, which would be regular mischief, let's say, and that would not conduct anybody to a $1,000 fine.
    Am I correct?
    Technically you could have a plea, based on a joint submission between crown and defence, for the minimum fine. But generally speaking, as a criminal lawyer I would be looking to negotiate with the crown to plead to the lesser included offence of general mischief for some sort of lesser penalty than a fine.
    That's what I would be looking for, but it doesn't preclude some sort of plea bargain on the minimum offence.
    Okay. Thank you.
    Mr. Seeback.
    Mr. Russomanno, I'm going to pick up on that.
    What you're effectively saying is that the capacity of the judicial system to find people deserving of some form of lesser sentence is going to be there. If your client shows true remorse for what they've done and they've undertaken some community work, as you suggest, and they then proceed back towards having a negotiation with the crown, either before a pretrial or at pretrial, you could explain the circumstances, and therefore the crown and you could come to an agreement that this deserving individual, who has shown that they actually have remorse for the desecration of a war memorial, should have the opportunity to plead to a lesser offence and obtain a conditional sentence, and therefore, their life won't be ruined, as you suggested, by having a criminal offence.
    That's still available even with this legislation.
    It's available, and that's where my comment goes at the beginning that you're transferring discretion from the court to the crown. It's not up to the sentencing judge to decide what count is being pled to; that's the crown's discretion. So you would have to convince the crown.
    The problem with transferring discretion from the court to the crown is that the crown's discretion is not reviewable at all. We can review the court's use of discretion through appellate courts, and that's done all the time.
    As I was going through the debates I did find it interesting that the impetus for this legislation was the anger that resulted from charges being withdrawn in the case of the Ottawa war memorial and charges being withdrawn in the riding of the private member who proposed this bill with respect to war memorials.
    Imposing a mandatory minimum sentence does nothing to prevent a crown from using his or her discretion to withdraw the charge outright or ask for a plea to a lesser included offence. This is what I find problematic. Whereas, if you leave it in the hands of the judge, the judge can decide that we're going to take a plea to this particular offence—you'll be convicted, and it will be on your record not only that you did commit mischief, but that it was in relation to a war memorial. The judge has the discretion to impose a discharge.
    Yes, but crown discretion has always been there. It's always there; nothing here is changing that and nothing ever will. The crown always has discretion, even before this legislation.
    Yes, of course it has. But what this does is force the hand of lawyers to look for innovative ways to get the crown to use its discretion, which I suspect causes anger in this committee.
    That is what you just said you did anyway, when you said that if somebody came into your office, this is what you would try to do.
    No. What I was referring to is using that to then pitch a discharge to the judge, so whether the crown agrees with me or not that they're going to go for a discharge, I would still have a chance in front of the sentencing judge to say, my friend disagrees with me here, but I'm going to be asking for a discharge, because these are all the things my client did.
    Right.
    Ms. Latimer, I don't have a copy of your statement, so I took some notes and I hope I have it correct. You seem to be saying that under principles of common law, the law should be broad in order to command public respect. That's what you seem to be saying.
    I'm going to kindly disagree with you, to an extent. I think that having laws that reflect the values of your community engenders respect for the law, in fact.
    In hearing the testimony from veterans who came to this committee earlier in the week, and certainly from talking to my constituents, I can tell you that this will enhance public respect for the law, because they feel that the law will now reflect what they view as the severity of desecrating a war memorial.
    My question to you is, have you talked to the broad Canadian public about whether or not this will enhance public respect, or are you just speaking from some previously enunciated principles?

  (1155)  

    I'm speaking from what Mr. Woodworth described as principles of criminal law and criminal law development, which is that broad, overarching laws are generally—and we may disagree on the principle—preferable to particularistic ones. That's not to say that some particular laws don't resonate well with certain constituents within society or command the respect of society writ large. But once you start down the road of having overly particularized offences, you're going to have a push-back from others who feel that their monuments should also have that type of protection.
    It is, for example, like when you make an apology to a certain group for an event that happened in the past. You're going to get a lot more people coming forward saying: “We too experienced.... Why aren't we getting an apology?”
    Well, surely you're not suggesting that we shouldn't have those apologies because then others might be asking for an apology.
    No. I'm saying it is better to have a broader category where people can see that equally valuable—
    So we should include more monuments and memorials in the legislation. Is that what you're suggesting?
    I say it would be better to have a general category rather than just looking at war memorials, or, preferable to me, to just use the existing mischief offence with some guidance to prosecutors and others about how it should be applied and what are aggravating and mitigating circumstances—which could include what the symbolic value of the monument was.
    Thank you, Mr. Seeback. Your time is up.
    Mr. Jacob.

[Translation]

    My first question is for Ms. Latimer.
    I understand that respecting war memorials is as important for you as it is for us. But you seem to be saying in your presentation that mandatory minimum sentences will not have the intended deterrent effect and will not achieve the desired result. You seem to be coming down more on the side of restorative justice.
    Could you give me some examples, some more details, showing that restorative justice will be more effective, not only for society but also for the offender, who will find it more to his advantage.

[English]

    Thank you very much.

[Translation]

    May I answer in English?
    Yes.
    Thank you very much.

[English]

    My experience has been that—and I used to be the executive director for youth justice policy, where you have criminal accountability for young people—if you find processes by which the young person learns why the behaviour violated the law, why it upset people, and give them a chance to make reparation in a restorative justice process or in another type of sentence, you come a long way to encouraging pro-social conduct. They're not just respecting the letter of the law; they're respecting the spirit that underpins the law—namely, you're hurting people by defacing or disrespecting the monuments to the values that they hold dear.
    I think there is an opportunity for a strong, educative, pedagogic response to these types of offences. It's a very important experience, particularly when you're picking up people, young people and adults, who may have cognitive disabilities or challenges or a variety of other things. You're inviting them to understand why this is a problem.
    I think that's much more effective. It's certainly been our experience in youth justice that it was much more effective in terms of holding the young person to account and reinforcing pro-social conduct.

[Translation]

    So, if I understand correctly, it is not a matter of reoffending one, two, ten or twenty times. Restorative justice is effective as a general concept.
    Certainly, yes.
    Thank you.
    Do I have a little time left, Mr. MacKenzie? Great.
    My second question is for Mr. Russomanno.
    You also said that, for adults in particular, probation would be more effective than mandatory minimum sentences.
    Could you explain to me in your own words why, from your experience—of one, two or ten cases—probation is more effective than mandatory minimum sentences?

  (1200)  

[English]

    A probation order, I think, as compared to a minimum fine, which stands alone, has much, much more flexibility. A fine is almost the pinnacle of inflexibility, whereas a probation order can have any number of conditions that can combine both rehabilitative and punitive conditions, such as community service, charitable donations, and addressing certain issues that may underpin the commission of the offence. In many cases it becomes far more onerous.
    The flexibility really has to do with the fact that it can be attached to a conditional discharge, which in effect does not have somebody carry a criminal record for the rest of their life.

[Translation]

    Why is it preferable to leave the discretion to the judge, rather than to tie his hands with mandatory minimum sentences?

[English]

    I think it's important to give the judge the discretion. Every once in a while you have an exceptional case. You may have somebody who has made significant steps to atone for their conduct and for whom the imposition of a criminal record would actually be contrary to the public interest, contrary to the interests of Canadians.
    You want to give the judge that flexibility, in my opinion.

[Translation]

    Thank you.

[English]

    Thank you.
    Mr. Goguen.
    Thank you to the witnesses for coming today.
    I want to focus on something Mr. Cotler talked about earlier about specificity and symbolism. There are, of course, under the Criminal Code the offences of mischief—mischief relating to religious property, and to cultural property also.
    Mrs. Latimer, you're arguing that these two first offences have no mandatory minimums, and of course the one we're proposing would. You've argued that basically this puts an argument between higher values. The Criminal Code in essence is the codification of public order, and it's obviously more heinous to commit a murder than it is to do a shoplifting. There's always a scale of values.
    Bearing in mind that this act does not apply to young offenders because there's the Youth Criminal Justice Act, I would argue that it is warranted to have a higher value on this particular offence. The people who laid down their lives and who we are honouring by these war memorials in fact fought for democracy and for the purpose of religious freedom, for culture, all of which are in the Charter of Rights, which is the highest law of the land.
     Is it not warranted to give a greater dissuasive power to the state in the case of those who have died for the ultimate reason—for freedom?
    Having come from a family where my grandfather and my father and all his brothers served in both World War I and then World War II, we certainly have a lot of respect for those who have sacrificed years of their lives, and often their lives, for the values we hold dear, including those in the charter. But that doesn't mean we can come up with things that actually might well violate some of the principles of the charter. The charter is quite clear about proportionate penalties and section 7 and fundamental principles of justice.
    Unlike government sponsored bills, where the Minister of Justice has an obligation to report to parliamentarians if there is a charter concern, I think on private member's bills, where there is no such obligation to report charter concerns, the committees, and all of us, need to be a bit more vigilant as to whether those basic charter protections that many of our forefathers fought and died for are in fact being protected in the bills that come forward. They may certainly respond in a heartfelt way to a problem, but may not be doing it in a way that's consistent with an overarching set of human rights values, charter values, and criminal justice values.
    If I could add something with respect to the charter—and unfortunately I didn't have too much time to look into this—I saw a potential issue arising with respect to section 2(b).
    As you know, mischief doesn't only consist of destruction of property but also the interference with lawful use of property. In relation to war memorials, I see a potential issue being somebody basically using their freedom of expression to protest a particular war at a particular memorial, and it may intersect with the right to freedom of expression under section 2(b) of the charter.
    It's an issue I wanted to flag for the committee to consider as well.

  (1205)  

    My argument to that, and certainly we are constrained by the constitutionality, would be that this is constitutional. Of course there are parameters to the charter and infringement under the charter that is just and reasonable in a democratic society, and it's my feeling it would certainly be upheld by the court if it were at all an infringement. I feel it's not. I believe the war dead are of the utmost importance, and for that reason I support this.
    You have one minute.
    I'll share my time with Mrs. Findlay.
    I was wondering, Mr. Russomanno, in your criminal law career if you have ever had the opportunity to apply for a pardon for somebody, to help them apply for a pardon or what we will be calling a “record suspension”?
    I've had peripheral involvement but nothing too much.
    Would you know then, or have some understanding, that if someone is charged with what would generally be considered a minor offence, for which they may pay a $1,000 fine, then it is quite likely, and I've heard it here several times from you, that they would have a record for life?
    Would you not agree with me that if your only offence has been desecration of a war memorial, for which you paid a $1,000 fine, your chances of applying for and getting a pardon or a record suspension are pretty high?
    I can't really speak to the probabilities. I know that it's becoming more difficult to get a pardon, generally, and that there are obviously delays in that. I'm being reminded that there are delays in obtaining a pardon.
    I would also say that if you're going to argue that it's easy to get a pardon, then that would sort of defeat the denunciatory aspect of the bill that you want to have, right?
    Not at all. I disagree with you.
    Madam Borg.

[Translation]

    Thank you for taking the time to come and testify before us today.
    We have received a letter. Unfortunately, I am going to have to read the English version because we have not received the French version yet. It was written by Mr. Archie Kaizer. He says that the bill is not really necessary. Let me read an excerpt from his letter:

[English]

Judges are required to take into account all the aggravating and mitigating circumstances in an individual case, an obligation of the common law and the Criminal Code, under s. 718.2. The Code...states some of the factors which may exacerbate a sentence, including offences motivated by “bias, prejudice or hate” on the basis of certain grounds or “terrorism.”

[Translation]

    In your opinion, is this bill really necessary? Based on your experience, do you agree with him that a judge will consider the motives behind this kind of crime?

[English]

    Yes, I would agree that a judge will most definitely take that into account. I suppose what I was getting at before was that I think the inclusion of this language is symbolic, in that it would be an expression of Parliament that these acts are particularly worthy of condemnation. I certainly wouldn't disagree with that. However, I would wholeheartedly agree that judges already do take these factors into account.

[Translation]

    Do you want to add anything?

[English]

    I also agree with Professor Kaiser. I question whether you actually need a separate offence to achieve these policy objectives.

[Translation]

    Thank you.
    I have a second question for you. I have a concern about someone who cannot pay a $1,000 fine. Take a student who has just finished university; he would not necessarily have $1,000 in his pocket.
    Are we right to be concerned about what could happen to that person? Can you see a solution? Could you even propose one?

[English]

    In my experience, with respect to a fine, obviously when you have a fine, it's premised on the ability to pay. And courts are mandated——I'm thinking of a recent case, in fact—to look into whether the offender has the ability to pay. When it comes to fines, a certain amount of time is given to pay the fine. For example, for impaired driving charges, which carry the same fine, they're given either three months, six months, a year, or two years to pay. That's something that is often, if not always, considered by the court.

  (1210)  

    I think you're quite right. Setting up a mandatory minimum fine creates a problem for the less affluent members of society who may run afoul of this law. So you're setting a little bit of an affluence distinction in terms of how onerous that particular penalty is. It is the same thing with the records provisions. It now costs $631 to apply to get a record suspension, which again creates a bias against those who may not have the resources to pay.

[Translation]

    Thank you.
    I am going to give the rest of my time to Mr. Harris.

[English]

    Thank you.
    I did want to draw the attention of both witnesses to.... We've had some talk about the charter and proportionality and other things. Section 430 of the existing code provides for a maximum sentence for mischief of life imprisonment, when there is actual danger to life as a result of damage to property.
    I note that despite the ultimate seriousness of actual endangerment to life, there's no mandatory minimum. Can you explain how that would help people understand the different degree of seriousness with respect to a war memorial versus endangering someone's life? How does that sit with you?
    Just going back to the principles, I think it is better to set the maximum and then allow a lot of latitude for the courts to determine how serious the offence actually was. We at John Howard, along with many other organizations, have problems with mandatory minimums generally, because they do not allow the judiciary to impose a penalty that may well be proportionate to the seriousness of the offence and the degree of responsibility of the offender if it is under what is set as the mandatory minimum. So I like the idea in all cases that there be no mandatory minimum set.
    In terms of how you would justify a mandatory minimum for an offence of mischief that is less serious than the one you've just described, I think it raises some serious concerns of parity amongst the Criminal Code provisions.
    Thank you.
    I want to thank the witnesses for being here today. You've brought a lot of information to the table. We appreciate that.
    I think we're going to go into the clause-by-clause, so you're welcome to stay in the room if you'd like.
    We'll suspend for three minutes.

  (1210)  


  (1215)  

    I call the meeting back to order. We'll move to the clause-by-clause consideration.
     We have officials here from the justice department, and our legislative clerks are here.
     We have some amendments. The first amendment is NDP-0.1...?

  (1220)  

    I'm assuming it's the same one I have. The motion is that Bill C-217, in clause 1—
    Mr. Harris?
    Mr. Jack Harris: Yes? I'm sorry.
    The Chair: Madam Boivin.
    Oh, okay.
     Yours is first.
    Mine is first? I thought it was more likely to be the last one.
    It appears in the lineup earlier.

[Translation]

    This is what I propose… Do you have the text I wrote?

[English]

    Do you have my text? I want to be accurate. I can't read my writing—
    Voices: Oh, oh!
    Ms. Françoise Boivin: Not on this one.

[Translation]

    So, on page 1, line 7, after the word “quiconque”, I propose that we add “, étant motivé par des préjugés ou de la haine, ”.

[English]

    In English, it would be to add, at page 1, line 16, after “cemetery”:
if the commission of the mischief is motivated by bias, prejudice or hate,
    and then it continues, “is guilty of an indictable offence or...”.
    The reason is that if you look at the actual Criminal Code under.... I don't think anybody around this table disagrees that it is terrible to have a monument desecrated, or a religious mosque, or any religious building like this, a church or anything like that.

[Translation]

    In subsection 430(4.1) of the Criminal Code, dealing with places of worship, it says:
    Every one who commits mischief in relation to property that is a building, structure or…if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race…
    In my opinion, this would at least keep this same way of writing the Criminal Code as applied to offences of equal severity, or at least the same perception of them. It would be a good way of staying consistent in that regard, by which I mean the way in which the Criminal Code is read.
    It would perhaps provide a solution to some of the problems we are raising, at least. We have a hard time understanding why certain kinds of offences are treated differently when they are at an equal level of seriousness. That is the reason for the addition.

[English]

    Thank you.
    You're welcome.
    Madam Boivin, your amendment is inadmissible.
    Really?
    It is beyond the scope of the bill, as it introduces a new concept in the bill.
    Really? What new concept? Being consequent to the Criminal Code is a new concept...?
    No, but you've brought a new concept into this bill.

  (1225)  

    Anyway.... It was a nice try.
    You can challenge the chair.
    Just for fun, I challenge. I still like you, but I do challenge.
    Okay, but there is no debate.
    The vote is whether you are voting to sustain the motion.
    A voice: No, the decision.
    Voices: Oh, oh!
    The Chair: It's the ruling. I'm sorry. It's whether you vote to sustain the ruling.
    No, we don't want to sustain your ruling.
    The Chair: Well, you might want to.
    Voices: Oh, oh!
    Ms. Françoise Boivin: I still say that I like you.
    (Ruling of the chair sustained)
    The motion stands.
    A voice: The ruling.
    Voices: Oh, oh!
    The Chair: The ruling stands.
    So now we go to amendment NDP-1.
    My amendment, Mr. Chair, is that Bill C-217, in clause 1, be amended by deleting lines 19 to 28 on page 1.
    This would have the effect of removing subparagraph (a) of the bill, leaving (b) and (c), but they would obviously be renumbered. That would remove the mandatory minimum.
    As part of my argument I want to read to the committee a letter addressed to the chair, which we had mentioned earlier but apparently the translation is not available. Professor Archibald Kaiser, a professor of the Schulich School of Law and Department of Psychiatry at Dalhousie University, has written,
Dear Mr. MacKenzie and Fellow Committee Members:

Thank you for providing me with the opportunity of commenting upon this Bill, which I hope will not receive support in the House of Commons. Owing to time constraints, I will be very brief in my assessment of the Bill.

The Bill is Unnecessary

I am unaware that the “evil” which the bill is intended to address represents an offence which has a high rate of prevalence. Indeed, I suspect that there are very few incidents of such discreditable behaviour reported to the police annually. The Bill does not appear to address a widespread instance of anti-social behaviour.

As long ago as 1969, the Ouimet Report establishes what many courts have cited as core Canadian values when it comes to either creating new offences or exacerbating the penalties for existing offences.

We should not criminally proscribe conduct “unless its incidence, actual or potential, is substantially damaging to society”. We should not criminally prohibit conduct “where its incidence may adequately be controlled by social forces other than the criminal process. No law should give rise to social or personal damage greater than that it was designed to prevent.” Criminal law should be used as a “last step” and we should not inflict punishment unless “manifest evil would result from failure to interfere”. The Law Reform Commission of Canada echoed these principles in 1976 and added that “The watchword is restraint- restraint applying to the scope of criminal law, to the meaning of criminal guilt, to the use of criminal trial and to the criminal sentence”.

So, in my opinion, this Bill does not demonstrate that it meets the high threshold for using the criminal law, or increasing its level of punishment.

Other Offences Already Prohibit This Conduct

Several offences under s. 430 of the Criminal Code already make such behaviour an offence, including the general mischief offence, s. 430(4); possibly s. 430(4.1), in cases where religious property, including a cemetery, is involved; and possibly s. 430(4.2), in relation to cultural property.

The level of maximum punishment associated with each of these offences is quite severe for conduct which does not involve danger to life.

There is No Need for a Minimum Punishment

Judges should retain discretion in sentencing wherever possible, which is part of the ancient traditions of the common law and is specified in s. 718.3(1) of the Criminal Code. Such discretion enables trial judges to do justice in individual cases, “by imposing just sanctions”, which contribute “to respect for the law and the maintenance of a just peaceful and safe society”, as specified in s. 718 of the Criminal Code, which declares “the fundamental purpose of sentencing”. Where the Crown feels that a sentence is too lenient, they can always appeal to a higher court.

There are many risks to our justice system which are posed by the erosion of judicial discretion. Sentences will creep (or leap) up as a whole, rather than preserving the ability of judges to levy a harsher sentence where it is called for in all the circumstances. Some offenders will be treated unnecessarily severely if judges lose this flexibility, which ultimately will erode public confidence in sentencing and will damage, rather than enhance public safety. Unduly harsh sentences will be inconsistent with other provisions of the common law and the Criminal Code, such as the “fundamental principle of sentencing” in s. 718.1 of the Code, which demands proportionality in relation to the “gravity of the offence and the degree of responsibility of the offender”.

  (1230)  

Judges must be able to consider ALL the objectives of sentencing under s. 718 of the Code and arrive at a sentence which wisely blends many sometimes conflicting purposes, such as denunciation, deterrence, separation of offenders where necessary, rehabilitation and retribution. Mandatory minima take away from this balancing imperative.
Damaging a War Memorial will Already Attract a Higher Sentence

Judges are required to take into account all the aggravating and mitigating circumstances in an individual case, an obligation of the common law and the Criminal Code, under s. 718.2. The Code (s. 718.2(a)) states some of the factors which may exacerbate a sentence, including offences motivated by “bias, prejudice or hate” on the basis of certain grounds or “terrorism”.
    That takes in Madam Boivin's amendment.
Moreover, every member of the public and judge recognizes the special importance of war memorials as types of public property with great significance to our national history. Judges would certainly impose a harsher sentence in appropriate circumstances where such a monument was defiled. As is stated in Sentencing, 7th Ed. (Ruby et al), commenting on sentencing levels for mischief in relation to property: “Higher sentences will also be imposed when the motivation for the crime is particularly offensive” (p.966).
Higher Sentences Will Not Deter the Typical Offender

Authoritative research has convincingly demonstrated that “variation in sentence severity does not affect the level of crime in society” (Doob & Webster, “Sentencing Severity and Crime: Accepting the Null Hypotheses”). As they recount, sentencing severity would only possibly have an impact if: a prospective offender believes he or she will be apprehended, knows the sentence has been modified, considers the consequences and calculates whether it is worth offending at the higher level of punishment.

I would venture that the typical person who would engage in the conduct specified in Bill C-217 would show many of the following features which are not susceptible to the kinds of deterrent mechanisms just mentioned: youth; intoxication; lack of advertence to the nature of the memorial and to the risks of apprehension and the punishment.

The imposition of higher sentences will simply not stop the kind of criminal misconduct targeted in this Bill. The Bill will have no effect at all in reducing the level of an offence which is still rare.
Sentence Severity under Bill C-217 and the Proportionality with Other Offences

Careful comparison of the sentences under the Bill and other crimes, both against property and the person, will reveal that this Bill imposes punishments that are far more severe than for many other offences which arguably cause more harm to individuals in society.

Such inequities in sentencing undermine the legitimacy of the criminal sanction.
There are Other Ways of Achieving the Goals of this Bill

As noted above, we should not be using the blunt instrument of the criminal law, where other techniques will accomplish the same ends of society, likely more effectively.

I believe that Mr. Tilson said in the House on February 12, 2012, that Canadians need to be reminded “that soldiers' sacrifices will never be forgotten or unappreciated” and that “Canada will continue to honour its fallen” through this Bill. Of course, Mr. Tilson is right in trying to ensure that these sentiments are preserved, but, with respect, this Bill is not the best or the right way of doing so. Moreover, I believe that Canadian soldiers and the public at large want a criminal law that is wise, just, compassionate, flexible and consistent with Canadian traditions.

So, in terms of other measures that could accomplish the same purposes, there are several things to consider:
— Enhanced education about the sacrifices that Canada's soldiers have made in war, peacekeeping and national service in general;
— Focused education programs in communities where offences have occurred;
— Encouraging editorial comment and news coverage where national monuments are damaged;
— Offering rehabilitative alternatives, especially for youthful offenders, where monuments are damaged, which would involve the participation of veterans who would explain the significance of soldiers' sacrifices and their emotional wounds as a result of such misconduct;

  (1235)  

— Advocacy organizations submitting victim impact statements where appropriate in crimes against memorials;

— Crown attorneys could be directed to seek reparations from offenders in any case where a memorial is disturbed;

— Research could be done concerning the few instances where such behaviour does occur to attempt to discern any motive and then to make recommendations for effective long-term deterrence.
I regret that time does not permit me to make a more significant contribution to your deliberations, but I do hope that I have shown that Bill C-217 represents an inappropriate, unnecessary and ultimately damaging use of the criminal law.

Thank you for taking the time to consider my input.

Signed,

H. Archibald Kaiser

Professor, Schulich School of Law and Department of Psychiatry, Faculty of Medicine (Cross-Appointment)

Dalhousie University
    Professor Archibald was unable to be with us by teleconference today, but his arguments are very persuasive, certainly to our side of the bench.
    We certainly see that when we're talking about the incidence of this behaviour, it's obvious that witnesses had to reach back five, six, seven, eight years to come up with instances that took place. If we're comparing it to impaired driving, for example—the 30-year history of trying to stop the carnage on the highways has resulted in the provisions that we have now—this is something extreme, in fact, to start here with those kinds of sentences.
    We've taken the position, on second reading, that we are supportive of having a separate section of the Criminal Code to draw attention to the importance of war memorials and have them treated similarly to other types of property in the mischief section. But let's remember that the Criminal Code deals with the severity and the gravity of an offence by having a maximum sentence. That's why subsection 430(2) has a maximum sentence of life imprisonment where a life is endangered by an act of mischief—“mischief” being only a legal term for the destruction or damage to property.
    So if you damage property that causes actual harm to life, the maximum sentence is life imprisonment because that's how serious the Criminal Code says it is. Well, there's no minimum here, and as the arguments have been made, there's no need for a minimum.
    We think that the judges should retain their discretion to be able to deal with this. We don't need to have some back door to achieve justice by suggesting that the crown has some discretion. This is a judicial system not an administrative system, and the law and the Criminal Code should reflect that consistency in sentencing, consistency in its approach. Section 430 of the Criminal Code will be out of whack if this amendment is not accepted and the removal of a mandatory minimum in this case, which not only has the effect of a $1,000 fine, it has the effect, in all cases, of a criminal record.
    Under the Criminal Code, as those of us who practise law know, if you have a minimum fine, then a conditional discharge or an absolute discharge in appropriate circumstances is taken away from the judge. We don't want to take discretion away from the judge and give it to crown prosecutors. Crown prosecutors are agents of the crown. Judges are people who act in the interests of justice, on behalf of both sides. They listen to arguments, they listen to the facts and circumstances, and they make a determination.
    Professor Kaiser made an excellent presentation. Unfortunately, he's not here to answer questions because his schedule didn't permit it. Nonetheless, he has offered us an in-depth understanding, although brief, of how that fits into the criminal law process.
    Having said that, Mr. Chairman, that's my argument in favour of the amendment to remove the first part of the sentencing provision that would leave the opportunity for prosecution by indictment or by summary conviction with the sentencing provisions as contained in Bill C-217, proposed by Mr. Tilson.

  (1240)  

    Thank you, Mr. Harris.
    Mr. Goguen, go ahead.
    Thank you, Mr. Chair.
    The debates in this committee certainly represent the full spectrum of what one feels is proper for sentencing. On the one hand we have the amendment that seeks to get rid of mandatory minimum sentences completely. Witnesses Mr. Eggenberger and Mr. Page have said that these sentences are just the minimum, and they're probably not adequate. So we feel that the sentencing structure there strikes a compromise. It's proportionate and reasonable. For that reason I'll certainly not be voting for the motion.
    It's interesting that somebody picked up on the issue of the sentencing provisions of this act being very similar to drinking and driving. One may wonder why someone would commit a repeat offence of drinking and driving. I guess you could say that alcoholism is an illness. But if somebody commits a repeat offence of desecrating a war memorial, you really have to wonder if they'd even charge them, or if they'd commit them under a lieutenant-governor's warrant. It's insanity.
    I note that Professor Kaiser's specialty is psychiatry, so the blunt edge of the law doesn't necessarily have to be applied in the case of someone who repeatedly desecrates war memorials.
    Mr. Casey.
    Thank you, Mr. Chairman.
    I'll be speaking in support of the amendment. I had the pleasure and honour of being Professor Kaiser's student back in 1985 and 1986, but I hope you will hold his opinion in no less regard because of that.
    We share the concern with respect to mandatory minimums. We are of the firm belief—and I think the evidence bears this out—that mandatory minimums do not serve as deterrents to criminals, nor effective remedies to crime. They remove judicial discretion, often disproportionate to the crime committed. They also remove transparency by encouraging perpetrators to plead guilty to lesser offences.
    In the case of mischief relating to war memorials, the use of plea bargains or pleading guilty of a lesser offence would be particularly detrimental, as the public would not be aware that a war memorial had been damaged or desecrated by an individual who had pleaded guilty to a lesser offence. This in turn would remove opportunities for educational campaigns and other alternative remedies that might better serve the community by increasing awareness of the sacrifices made by Canada's war veterans.
    For those reasons we'll be supporting the amendment.
    Thank you, Mr. Chair.
    Thank you, Mr. Casey.
    Madam Boivin.

[Translation]

    I will be quick, Mr. Chair.
    What I find peculiar in this bill is the false message that we are sending to our veterans, in my opinion. I am thinking, among others, about the witnesses who were here on Tuesday. I have a great deal of sympathy and respect for what they represent.
    That said, we are leading them to believe that Mr. Tilson's bill is going to solve their problem: the problem of having the impunity to slaughter the honour of those who have fought for their country. I feel that there is no greater action one can take in one's life. We know, however, that, despite the bill, we are going to end up with Crown prosecutors who will often be so overwhelmed by their daily caseload and with people saying that it was just a poor kid who did such a thing without thinking, and those people are going to ask to stick with a charge of simple mischief.
    We are leading people to believe that we are solving a major problem by acting in that way, whereas we could get to the crux of the matter by sending a clear message that desecrating things like war memorials and cenotaphs is an offence in itself. That is the problem I see in the bill.
    In terms of minimum sentences, I feel that Mr. Seeback raised a good point just now when he said that, minimum penalty or not, it would not stop people from trying for, and actually getting, a lesser sentence. Perhaps that is what actually bothers me in this whole process we are involved with. We are leading Canadians, including our veterans, to believe in something that will not really have any real consequences.
    I also want to say—and feel free to tell me different—that, in my opinion, there is no record of repeat offending here. Once more, we are giving the impression that we are getting all high and mighty and saying “here is what will happen for a second and third offence”. We are giving the impression that it happens a lot.
    As Mr. Harris said, our witnesses had difficulty listing recent cases, and we know that it is difficult. I think that what happened here in Ottawa in 2006 or so raised public sentiment on both sides of the river about what had happened. A lot of people were disgusted. My feeling is that that is very instructive in itself. I dare anyone to do the same thing again, given the public consequences the last occasion had.
    And let us not forget the Royal Canadian Legion. I do not know if everyone received the letter from Ms. Varga. We are talking about the Royal Canadian Legion, a Canada-wide organization that is made up of many veterans who are saying the same thing themselves. I am going to read to you the passage where she too clearly says that they were grateful to us for giving them the opportunity to comment on the content of Bill C-217.
    The Royal Canadian Legion strongly supports—as do we—the intent of Bill C-217 to include incidents of mischief against a war memorial or cenotaph or an object associated with honouring or remembering those Canadian men and women who paid the supreme sacrifice in the service of Canada during war and on subsequent occasions since Korea.

    Our membership is strongly in favour of recognizing the serious nature of these incidents and in consideration of the feelings and emotions expressed by all Canadians against such acts. We do however feel that the provision of appropriate penalties suitable to the individual particulars of an incident should reflect the nature of these acts and there should be latitude in assessing the gravity of the situation.

    The punishment should fit the crime and, although no incident of this nature can be condoned, there should be provision for restorative justice measures with a mandated dialogue between veterans groups and the offenders. There should be provision where offenders are encouraged to take responsibility for their actions, to repair the harm they have done, by apologizing to a group of veterans, or with community services. It provides help for the offender to avoid future offences and provides a greater understanding of the consequences of their actions.

  (1245)  

    These comments are not coming from just anyone. They are coming from the Royal Canadian Legion.
    Once again, I emphasize that we are sending a false message, and we are giving our veterans false hope. For that reason alone, I can be counted among those opposed to this measure. It may be well presented, but it will not achieve the desired result. Given our responsibility to do our job as lawmakers well, I think that we should be very careful.
    Thank you, Mr. Chair.

[English]

    Thank you, Madame Boivin.
    Shall NDP-1 carry?
    (Amendment negatived)
    The Chair: We now have G-1.
    Thank you, Mr. Chair.
    Obviously we support denouncing conduct that shows disrespect to fallen Canadians in this act. However, we're concerned that the proposed sentencing structure may have an unintended negative consequence, and this deals with the maximum sentence.
    As it's currently drafted, the legislation would provide for a lesser maximum sentence where the offence is prosecuted by indictment, than currently exists under the sentence for a similar mischief offence under section 430 of the Criminal Code. Right now it provides for a maximum five years' imprisonment rather than ten. Therefore, I am proposing an amendment to clause 1 of the bill.
    I move that proposed paragraph 430(4.11)(b) of the bill be amended by deleting the word “five” in line 3 on page 2 of the bill and replacing it with “ten”, so that the proposed maximum penalty on indictment would be ten years' imprisonment in order to ensure consistency with other mischief offences in the Criminal Code.
    It's a matter of consistency, Mr. Chair.
    Thank you, Mr. Goguen.
    Mr. Harris.
    I find that argument rather specious, Mr. Chairman, given the lack of consistency in its entirety of Bill C-217 with respect to mischief under section 430 of the Criminal Code.
    In fact, one might argue that Mr. Tilson was more consistent by having a maximum of five years for his proposed new offence, because it doesn't require the level of motivation, prejudice, hatred, or bias that's required in the section that he wants to make it consistent with.
    There is no motivating factor required. We're talking about equating now.... As was suggested in argument in the past, we have a mandatory minimum sentence for somebody urinating on a war memorial situation—which can happen, perhaps inadvertently—with someone putting a swastika on a synagogue or defacing a Jewish cemetery, as happened in Toulouse after the terrible events of last week.
    I don't think that's consistent at all, in this case. We've been through the arguments where we accept the fact that, as the Canadian Legion's Dominion Command said.... When I say Dominion Command, I'm referring, of course, to the national organization—the entire structure of the Canadian Legion—and the president who wrote to us, insisting that there ought to be some flexibility here.
    She recognized, on behalf of Dominion Command, the flexibility that's needed, and here we are saying, well, we have to be consistent with this other one where actual prejudice, actual bias, actual hatred based on religion or other forms of hatred is required.
    So to suggest that in order to make this consistent we should make it ten years, when no such motivation is required in Mr. Tilson's bill—we can't support that.

  (1250)  

    Thank you.
    Madame Boivin.

[Translation]

    The government seems to be admitting that the offences are similar, whether it be mischief against places of worship or the new mischief that will be introduced in Bill C-217. For the same reasons that Mr. Goguen has clearly expressed, I think we must be consistent across the board. I am not going to go back over Mr. Harris' arguments, but I feel that the government amendment makes it even more clear.

[English]

    Thank you.
    (Amendment agreed to)
    The Chair: Shall clause 1 as amended carry?
    Mr. Chair, I have an amendment, NDP-2.
    Speak up, then.
    I'm speaking up now.
    I thought it had been distributed, I'm sorry.
    No, it hadn't been distributed.
    While we're waiting for it to be distributed, I would just like to draw your attention to this. The officials from Justice had pointed out that section 667 of the Criminal Code deals with proof of previous conviction. The note is that section 667(1) describes how previous convictions are proved by certificate, and 667(4) provides that the crown must provide the accused with notice of intention to introduce that record and where it is not, the certificate cannot be—
    Exactly...invoked in sentencing. Is that it?
    That's right.
    That's why he didn't answer properly when I was asking my questions, because that's what I was referring to. They need to—
    Sometimes it's not produced.
    Exactly.
    NDP-2 is the last piece of paper there.
    I think there may be a “3” on it. It's the one at the top. I don't know what it says. The last three digits are 161, Robert.
    So, yes, it does say but that means nothing.
    NDP-3.
    I don't know what it says on what you have. I don't have what you have.
    161? It's NDP-3 on your.... You can't keep confusing me.
    I'm confusing myself here now because I have two different versions of it, but I don't have what was distributed. So I'm confusing myself, unfortunately.
    It's the very last page of what was handed out and I'd like to introduce it before anything happens.

  (1255)  

    We can come back here.
    Mr. Harris is going to introduce his amendment. It's reference 5483161.
    Mr. Chairman, as I said to Mr. Woodworth, we must have been channeling your hero, Mr. J.R.H—if I've got his initials rights—Kirkpatrick, Judge Kirkpatrick, in preparing this amendment. If you read along with me, our proposal for subsection (4.12) is:
A court may delay imposing a punishment on a person convicted of an offence under subsection (4.11) to enable the person to make reparations for harm done to victims and the community. If the person makes reparations that, in the opinion of the court are appropriate, the court may impose a punishment that is less than the minimum punishment provided for in that subsection.
    Given your earlier remarks, I hope that we may find some support on the other side for this innovative approach, which we think will go a long way to meet the request of the Dominion Command of the Royal Canadian Legion to allow for restorative justice and allow offenders to take responsibility for their actions, to repair the harm they have done by apologizing to a group of veterans or with community service. We think that would be very positively regarded by the Dominion Command of the Canadian Legion, and I'm sure legionnaires across the country if this provision was adopted.
    Thank you, Mr. Harris.
    Mr. Goguen.
    It's regrettable that we weren't given this a little bit more in advance, obviously we would have more time to certainly look at the benefits and downside. But certainly as it stands, it takes a lot away from the whole provisions of the act which impose a minimum sentence. Without having the benefit of more time to really examine this, I'm going to be voting against it.
    Ms. Findlay.
    I just want to make sure I understand what we're talking about here. I think, if I'm understanding it right, we're dealing with what we have as NDP-3 at the top and NDP-2 is not proceeding. Is that right? But I thought you read NDP-2.
    I read 161 which is the one that we intended to present next. We may have another one but we thought this one might be, at least initially, more satisfactory given the remarks of Mr. Woodworth.
    As far as Mr. Goguen says, if he's going to vote against it because time is a problem, we'd be very happy to come back on Tuesday and give my friends an opportunity to consider this. Because it is so in tune with what Mr. Woodworth was saying earlier, that maybe they would like to consider it rather than forcing it to be dealt with today because it happens to be one o'clock.
    We can talk until one o'clock anyway if we wish.
    I think we're going to be from the list.
    Mr. Woodworth.
    Thank you very much.
    Although I always appreciate it when Mr. Harris finds my remarks persuasive, I regret to say that in this particular case he wasn't listening closely enough to my remarks.
    My remarks had to do with a judge who in fact would not convict but would instead dismiss a charge where he felt that the offence was not appropriate to the offender. The motion before us deals with the suggestion that there might be a conviction, but no minimum punishment. If I was minded to be scrupulous about the rules, I would wonder why this motion is even before us since it seems to be inimical to the actual intent of the bill, which is to impose a minimum mandatory penalty. In effect what this motion purports to do, in a certain sense, is to work against the policy of the bill. I am only inviting the chair to consider that. I am not making a motion to declare the motion out of order.
    Thank you.

  (1300)  

    Mr. Rathgeber.
    I'll be encouraging members on this side of the table to vote against this motion.
    What this amendment seeks to do is, as Mr. Woodworth has said, circumvent the mandatory minimums. It's based on a premise that's unnecessary. It says that if a persons wants to make reparation they should be given the time to do so. Obviously there's going to be a considerable amount of time between the laying of the charge and the ultimate disposition. If an individual is so inclined to make reparation, I would suggest that he or she will have had adequate time to do so prior to sentencing but after the charges have been laid. I don't think we need any more time on this side of the table to vote no to this amendment, Mr. Chair.
     I have Mr. Seeback first.
    I have to say that, at the extent of disagreeing with my colleagues, I find this amendment to be interesting. I share the disappointment of my colleague that we've received this amendment today. I think I'd certainly like to have more time than the two minutes that we have available to look at this amendment and ruminate on it.
    I'm in the hands of the committee as to whether or not we're going to have to vote. If we're voting now I suspect I'm going to have to vote no. If we're voting another day, then who knows.
    I think it's fair to say that you'll be voting another day because the room is going to be occupied very shortly.
    We'll see everybody on Tuesday. Meeting is adjourned.
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