Justice Committee on March 29th, 2012

[The Chair, Conservative, Dave MacKenzie]

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?

[Jack Harris, NDP, St. John's East, NL]

It seems rather high.

[The Chair, Conservative, Dave MacKenzie]

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]

[Françoise Boivin, NDP, Gatineau, QC]

With all the problems that...[Technical Difficulty—Editor]...adopted by Conservatives, I won't speak on that one.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madam Boivin.

[Jack Harris, NDP, St. John's East, NL]

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.

[The Chair, Conservative, Dave MacKenzie]

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.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

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.

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.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Russomanno, if you have an opening address, go ahead.

[Leonardo S. Russomanno, Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual]

Thank you.

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.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

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?

[Catherine Latimer]

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.

[Jack Harris, NDP, St. John's East, NL]

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?

[Leonardo S. Russomanno]

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.

[Jack Harris, NDP, St. John's East, NL]

That's it, is it?

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris. You've used up your time.

Go ahead, Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

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?

[Catherine Latimer]

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.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

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.

[Catherine Latimer]

Yes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

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.

[Catherine Latimer]

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.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

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?

[Leonardo S. Russomanno]

No.

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.