:
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 , 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 is 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 . 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.
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.
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.
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.
:
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?
:
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.
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?
:
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?
:
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.
:
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.
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”.
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;
— 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.
Professor, Schulich School of Law and Department of Psychiatry, Faculty of Medicine (Cross-Appointment)
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 , proposed by Mr. Tilson.
:
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 .
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.
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.
:
I find that argument rather specious, Mr. Chairman, given the lack of consistency in its entirety of Bill 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.