Bill C-217 (Historical)

An Act to amend the Criminal Code (mischief relating to war memorials)

This enactment amends the Criminal Code to provide for the offence of committing mischief in relation to a war memorial or cenotaph.

Criminal Code

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank my colleague who, by introducing this bill, has made it possible for me to address such an important matter in this chamber.

However, I would first like to say that this bill is a little like many other government bills, even though it is being introduced through the back door as a private member's bill. Bill C-217 seems to be inspired by media headlines. The danger with this type of bill is that it meddles with the Criminal Code. We are supposed to be good managers of this country, good legal experts and supposedly good lawmakers. Lawmakers do not talk for the sake of talking. The danger is that by making piecemeal changes to sections of the Criminal Code, which is something that the Conservative government does on a regular basis, we are creating a monster and those who manage criminal matters every day will have a great deal of trouble working with it.

When we studied the bill in the Standing Committee on Justice, the critic at the time, my colleague from Newfoundland and Labrador, specified that we had no problem with the substance of the bill. We all recognize the importance of war memorials. We have no problem with that. Our problem was, and still is—because the amendments have not been passed yet—with the fact that the government introduces in Bill C-217 changes immediately following section 430 of the Criminal Code on mischief involving religious worship.

The section stipulates:

Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

a. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

b. is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

It is because we raised these points that the government presented its amendment, because the maximum sentence did not make sense. The government recognized that. If we considered that the purpose of the bill was essentially to introduce minimum sentences, then the official opposition could not support this type of amendment given that, in the same section, this did not exist for the other things. Never, during the entire hearing in committee of the various witnesses, was anyone able to tell us in an intelligent or consistent manner why war memorials are more important than places of religious worship or cultural property.

It is important to be consistent. Indeed, there will be a problem when and if this goes before the courts. We do not write just for the sake of it, to return to our ridings and go to the Royal Canadian Legion—that I joined a few months ago—and say that they will be proud of us because we voted in favour of Bill C-217 and we have agreed to make things much more serious. It is important to be consistent. As legislators, we have a responsibility. If this government does not understand its role as legislator, at some point, Canadian society as a whole will pay the price. We agree that there is a problem, but it is important to be realistic. It is not something that happens every day, but there is a problem. That it would happen once, is once too often.

I would have been a little uncomfortable had I not received a letter from the president of the Royal Canadian Legion, who wrote to us, during our committee hearings, on behalf of the Royal Canadian Legion. If anyone is proud of their history—of our land, air and sea forces—and of what has been done in Canada's name throughout the world, it is the Legion.

I participate in enough activities with these people to know that they are proud and that they want to educate young people about our history. They want young people to be more familiar with what is happening now and what has happened in our history. The youth of today are quite often unfamiliar with Canada’s history. My colleague who introduced Bill C-217 stressed this when he compared our situation to that of Europe, where young people are so proud of their history. I have travelled throughout Europe and I have been to Normandy. It was one of the most wonderful trips of my life, and the most emotional. I saw all the tombstones of our Canadian soldiers, which are maintained by people who go there every day. Of course, it is a proud moment to stand before these tombstones, and one that makes you want to return.

Will slapping people with a $1,000 fine solve the problem of ignorance of history? As the president of the Royal Canadian Legion put it so well:

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.

That is the Royal Canadian Legion's vision, which I share. There is a reason why the Criminal Code section on mischief does not provide for a minimum fine for mischief in relation to cultural property or places used for religious worship.

We feel that war memorials belong in the section on mischief. While we do not necessarily object to mentioning war memorials specifically in that section, it is important to be consistent with the rest of the section, because there is a danger. The member for Dufferin—Caledon was asked about this when he testified in committee. Anyone who has done some criminal law and gone to court knows what will happen to avoid the minimum fine. Take the example of a stupid young person who gets a good slap on the wrist from the authorities so that he understands the seriousness of what he did and is properly punished. You would have to be pretty stupid to do this sort of thing. But who did not do something stupid when they were young? Do we have to slap people with a $1,000 minimum fine to make them understand that what they did was wrong?

The best proof that this is not necessary is that these individuals rarely reoffend, which goes to show that the punishments handed down under the current legislation are successful. Something is missing, though. Students in this country need to be made aware of our history.

I will repeat what I said the first time I took part in this debate, for anyone who did not hear. In my former life, I was a radio broadcaster. One of my best radio programs was one that I had to fight for to some degree, since my program director thought my idea was completely crazy. After travelling to Europe, I said I wanted to do a special program on November 11, which I wanted to begin by observing a minute of silence. For anyone who does not know, a minute of silence on the radio is very expensive. My director asked me if I had gone mad. I told her that I thought it was worth commemorating what happened in our past and giving our listeners a little history lesson. That was my best program. It was an open-line broadcast. People called in to talk about what had happened. That is what needs to be done, rather than adding a subsection that will only complicate section 430 and confuse people, because they will no longer know which section to invoke when laying charges, in order to prevent the minimum fine from being given.

This bill is thoughtful in the sense that it comes from good intentions, but once again, this Conservative government has failed to reach the right conclusion.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, whatever we are doing now, which is under the mischief section in the Criminal Code, is not working. The vandalism continues.

I understand the position of the official opposition and the Liberal opposition. Their position has been quite clear. They do not like maximum or minimum sentences, and that is it in a nutshell. They want restorative justice and other things. As I said in my comments, Bill C-217 does not preclude a judge making that decision. After people have been fined $1,000, they can have other things applied to their sentences. There can be restorative justice. I say that, surely to goodness, this offence is greater than minor mischief charges. These are very serious things.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank the member for Dufferin—Caledon because I truly understand why he has introduced this bill. This is not his first attempt.

I know that all members of the House are always appalled to hear about incidents such as those that occurred recently in Ottawa and in the hon. member's riding. However, one of the issues raised by the Standing Committee on Justice is that there is no mandatory minimum sentence for mischief in relation to objects of religious worship or cultural property. The fact that Bill C-217 establishes mandatory minimum sentences for committing mischief in relation to a war memorial seems to make this a much more serious offence. I would like the member to talk about this.

[David Tilson, Conservative, Dufferin—Caledon, ON]

moved that the bill be read the third time and passed.

Mr. Speaker, I am pleased to rise this morning on behalf of the residents of Dufferin—Caledon to speak to Bill C-217, which is my bill to protect and defend our nation's war memorials and cenotaphs.

As members will know, Bill C-217 seeks to add significant penalties to the mischief section of the Criminal Code for those convicted of mischief against our war memorials, cenotaphs and similar structures that honour those who have died as a result of war. The first offence would carry a fine of not less than $1,000. The second offence would carry a jail term of 14 days. The third and subsequent offences would carry a 30-day jail term.

All members of this House are familiar with veterans in their communities and likely with serving Canadian Forces members as well. We hold them in the highest regard for the sacrifice their service represents. Our war memorials and cenotaphs are places we set aside in our communities to honour them and especially to honour those who paid the ultimate sacrifice. We owe them a debt that can never be repaid.

Since we last debated this bill on February 2, 2012, I was pleased to appear before the Standing Committee on Justice and Human Rights as it began its examination of Bill C-217 on March 27. I had the honour of being accompanied by Mr. John Eggenberger of Nepean, Ontario, a retired air force colonel and vice-president of the Canadian Peacekeeping Veterans Association. I was also accompanied by Mr. Earl Page, a Korean War navy veteran from Woodstock, Ontario. These two gentlemen underscored the need for more stringent sanctions against those who would desecrate or vandalize our cherished cenotaphs and war memorials.

Mr. Page, in particular, made an impassioned presentation during which he recounted the events of a shocking act of vandalism that took place in Woodstock on November 10, 2009, the night before the Remembrance Day ceremonies. Residents of Woodstock arose to discover that vandals had spray-painted swastikas and offensive messages on the town cenotaph. With no time to remove the offensive graffiti, the ceremony proceeded with this heinous damage in full view.

Mr. Page commented on the disgust felt by everyone, especially the veterans attending the ceremony in Woodstock on that Remembrance Day. I will quote from Mr. Page's presentation at committee on March 27. He said:

...I wanted to express my deep disgust on behalf of all the people in Woodstock, all the veterans in Woodstock, as well as the many children there. Children were mentioned. We always have a great many children out to that cenotaph on Remembrance Day, and they all come and shake our hands. They're happy to see us. Since the desecration of our monument, the city has gone to the trouble of re-facing all the names on that monument, and it cost the city a great deal of money. I know the feelings of the veterans: if we had got hold of that guy, I don't think he would be walking around today. But he was not a child, or even a teenager—he was an adult, and he got away with it. We spent six or seven days going to court to see what was going to happen to him, and he got off with a slap on the wrist, a couple of days of community service. Terrible. I won't say much more, because I'm liable to say things I shouldn't. Thank you.

During the previous hours of debate on this bill, I have recounted many similar examples of such profound disrespect to our fallen soldiers, our veterans and our men and women serving in the Canadian Forces today. As the mischief section of the Criminal Code is currently written, war memorials and cenotaphs fall into the same category as a mailbox or parking meter when it comes to penalties. They certainly deserve better protection than that.

During the examination of Bill C-217 at committee, colleagues from the opposite side of the House made numerous references to mandatory minimum sentences, restorative justice, judicial leeway, discretion and so forth. The member for St. John's East and the member for Mount Royal, who are both very experienced and knowledgeable members, expressed opposition to the mandatory minimum sentencing provisions of Bill C-217. Both of those members and other members of the opposition were pushing for restorative justice and judicial flexibility to be written into the bill. Indeed, several hours of the committee's time was taken up with debate on their amendments in this regard. It is my contention that they missed the point.

Nothing in Bill C-217 precludes a judge from ordering some form of restorative justice, restitution or apology, or other alternate sentencing. A judge could order a guilty individual to spend time at the local Legion to perform community service or even scrub the monument with a toothbrush, for example. The judge would be as free to do as he or she sees fit on a case by case basis after the guilty individual is ordered to pay a $1,000 fine for the first offence.

Staying with the committee for a moment, I should note that an amendment put forward by the government was adopted. It would move the maximum imprisonment under indictment from five to ten years. This is a technical amendment that was brought to my attention by officials with the Department of Justice, and I thank the department for its guidance in this regard. I might point out that the opposition parties voted against the government's amendment, and they also voted against the bill itself in a recorded division at the conclusion of clause by clause. This action speaks for itself as to how seriously they view this issue.

I return to my observation that, under the current regime of the mischief section of the Criminal Code, a war memorial or cenotaph is not accorded the pride of place that we accord them in our communities.

These honoured places we know so well represent shared military heritage and its key role in defining who we are as a country. We can all recall the major milestones and some of the lesser ones in our military history: Ypres, Vimy, the Somme, Dieppe, Ortona, the liberation of the Netherlands, the Korean War, the Suez crisis, Cyprus, the Golan Heights, peacekeeping throughout the Cold War, the first Gulf War, Yugoslavia, Bosnia, Afghanistan and, more recently, Libya, to name but a few.

Those names evoke strong emotions among Canadians, and rightly so. They and so many others are part of what defines us as a country. We are a country that defines freedom and liberty to the point that we have sent and continue to send our sons and daughters to dangerous places in the world in defence of that freedom and liberty. We understand collectively as a country what this has cost us in lives sacrificed. To properly honour that sacrifice, we have erected war memorials and cenotaphs across the land, where communities gather to pay tribute to those who have fallen and those who have served.

We would repay that sacrifice and service poorly indeed if we did not do all we can to deter the senseless desecration of these honoured structures and places. My goal with Bill C-217 was to lift cenotaphs, war memorials and other similar structures above the mundane and properly recognize them in the Criminal Code as having special value, value deserving of significant sanction in the criminal law of this country if someone chooses to violate them.

I have related this story before in the House but it bears repeating as to what prompted me to introduce this legislation. In early 2008, in my community of Orangeville, Ontario, the town arranged for our local cenotaph to be sent for restoration. In late October, it was reinstalled with an appropriately solemn rededication ceremonies. Then a few days later, just days before Remembrance Day, vandals hit it with eggs. It cost the town of Orangeville more than $2,000 to repair the damage.

This was the original impetus behind the bill. As I did research on this, I found that this incident was, sadly, not isolated. Without having to dig very deeply, I found dozens of incidents over only the past few years from coast to coast of vandalism and desecration of these important monuments. In many cases, perpetrators received either a slap on the wrist or even went scot-free.

It was said during testimony at the justice committee that we should take into account youthful indiscretion or the lack of education as to the significance of our military history when considering cases of vandalism of this kind. I could not more vehemently disagree. I think of the tens of thousands of Canadian youth who lay in war graves in Europe, North Africa, the Pacific and elsewhere. There is no youthful indiscretion there.

Part of educating those who remain ignorant of the value of our war memorials and cenotaphs includes making it clear in our criminal law what the consequences are for dishonouring them.

The severity of the penalty gives Canadians an indication as to how seriously we as a society and we as parliamentarians view this associated crime. To suggest that vandalism against a war memorial or cenotaph is done on a lark or a whim and should be treated less harshly is frankly offensive to the memories of those we honour with our monuments.

Members will know we just celebrated the 95th anniversary of the battle of Vimy Ridge. Many consider this to be Canada's coming of age, as all four components of the Canadian expeditionary forces fought together as a single unit for the first time. Great odds were overcome at a great cost of life, far out of proportion to our size as a nation. It is a key defining moment in our history as a nation. The Governor General recently led a delegation of thousands of Canadian students to the monument in Vimy to commemorate this important milestone. As well, during 2012 we are celebrating the bicentennial of the war of 1812. Canadians can be justifiably proud of our role in that conflict, another pivotal moment in our history. Throughout this year, many will be paying tribute at our local cenotaphs and war memorials. In two years' time we will commemorate 100 years since the outbreak of World War I, which cost our country immeasurably.

All this is to say that Canada has a proud military history. We have never sought a war, but we have always come to the defence of democracy and freedom when called upon to do so. We have always recognized the bravery and sacrifice of the best among us through our memorials and cenotaphs in the ceremonies we hold there.

Most members know someone who has fought or served at some point in our great country: a father, a brother, a grandfather, an uncle, an aunt, a sister, a mother or a friend. We appreciate these men and women for their dedication and courage and the sacrifice they have shown for Canada. Their willingness to fight abroad for our freedom here at home is an inspiration. The memorials in our communities are dedicated to these people, and none of us wants to see them damaged or defiled. The increased penalties called for in Bill C-217 will make potential vandals think twice before acting against a memorial that holds such significant meaning for this community.

Canadian Forces members continue to serve in Afghanistan, engaged in training the Afghan security forces. Just last summer combat operations ceased and the bulk of our combat troops returned home to a grateful nation. Over the course of 10 years of combat operation, Canada's longest-ever combat mission, we lost 157 brave men and women. As a result, our cenotaphs and war memorials have taken on new significance and value, especially in those communities that lost one of their own. Protecting them from vandalism is more important now than ever.

As members of Parliament, we serve our democracy in a very direct way. It was to protect that democracy and the freedoms that go with it that so many brave Canadians signed up and continue to enlist in the Canadian Forces. Too many of those Canadians did not make it home, and so we have places of honour and great respect in our communities to recognize their sacrifice. We would repay them poorly if we did not do absolutely all we can to discourage people from dishonouring those hallowed places.

Those of us who enjoy the hard-won freedoms that are part of modern Canada owe it to those who have paid in blood and life to keep these honoured spaces free from harm or dishonour. As citizens and residents of this great country, we have a duty to protect and preserve our memorials and cenotaphs in memory of those who have fallen.

To conclude, I would like to thank all the members of the Standing Committee on Justice and Human Rights for their work on Bill C-217. They gave it thoughtful consideration. While I did not agree with everything that was said, I nevertheless want to acknowledge their work. In particular, I want to thank both the chairman, the member for Oxford, and the Parliamentary Secretary to the Minister of Justice, the member for Delta—Richmond East for their stewardship of Bill C-217 through the committee process.

Canada's long and proud tradition of standing up for freedom and democracy and defending our values is one of the things that make us the greatest in the world. I believe the passage of Bill C-217 is necessary to ensure that those who would damage our honoured places think twice before they act. I would therefore urge all hon. members to support Bill C-217.

The House proceeded to the consideration of Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials), as reported (with amendment) from the committee.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the ninth report of the Standing Committee on Justice and Human Rights in relation to Bill C-217, an act to amend the Criminal Code (mischief relating to war memorials).

The committee has studied the bill and has decided to report the bill back to the House with an amendment.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

As Ms. Findlay and others might note, I do oppose mandatory minimums, although that's not my reason at this point for supporting the amendment. Even on the matter of mandatory minimums, I don't always go in lockstep. There may be exceptions even there that I might relate to.

There are a number of considerations here that prompt me to support the amendment. Reference has been made by Mr. Woodworth to denunciation; I think it is an important principle, but I believe denunciation resides in the very adoption of Bill C-217 to begin with. Clearly, this offence could be prosecuted and has been prosecuted under other approaches to the law of mischief, whether it be cultural property or religious property, so the offence could otherwise be prosecuted. You don't need this law to prosecute this particular offence. It is the very importance of denunciation so as to have specificity with regard to this offence that we have the offence set forth to begin with, and I support that.

On the amendment and why I support it, I think it would maintain consistency in the application of the law with respect to offences of this kind. Otherwise, we are distinguishing inappropriately with respect to both the generic nature of the commission of this offence and the victims involved. As I believe it has been said by Mr. Harris, a third approach—one that it is anchored in the principle of restorative justice—is particularly appropriate with regard to the amendment here. Finally, it will avoid the plea bargain situation in which denunciation, if not deterrence, may not be fulfilled precisely because as a result of the plea bargain; you will not even secure the very objectives of Bill C-217 to begin with.

For those considerations, I will support the amendment.

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

Thank you. I would like to address some of the comments opposite.

Yes, I agree that Professor Kaiser did have intelligent and thoughtful comments. I'm a little surprised, though, that the main point, according to Mr. Woodworth, would be denunciation.

There is room for denunciation in sentencing in general, particularly in appropriate cases. Judges are certainly aware of that. The main motivator of sentencing in general, however, is the protection of the public and how that is best achieved by our criminal justice system. I just want to make sure people understand that when we are looking at the comparison between the new provision we're talking about in Bill C-217—a provision for a specific crime of mischief in relation to war memorials or cenotaphs—we see that a particular crime against religious objects such as synagogues and mosques and churches must be in fact motivated by hatred or prejudice. Therefore, a swastika on a synagogue would be prosecuted more severely because it is motivated by hatred, hatred of a particular group of people.

I don't need to remind anybody that the Second World War was fought against an enemy that carried out the mass slaughter of Jewish people throughout Europe, so when we talk about a swastika on a synagogue or a Jewish cemetery, we're talking about someone inciting that kind of hatred.

When we talk about desecration of a war memorial, we may be talking about something inane, idiotic, stupid, misunderstood, or whatever, and if we're talking about denunciation, yes, in appropriate cases there is a proper case for denunciation. Sentences should be appropriate, and the judge would be in a position to do that.

I do want to remind you of the testimony of Terence Whitty, who plays a significant role in the organization of the cadet program in Canada. He talked about the lack of knowledge of our history that young people have in the cadet corps, a place where you would expect there would be a different level of understanding. It's one thing to say that we need to denounce behaviour of this nature, some of which is just based on ignorance, but you can't punish people for not understanding and appreciating their history. That's not a proper subject of criminal sanction, criminal punishment, but in some instances that is exactly what we're talking about.

A first cousin of my father's was in World War I. It makes him my first cousin once removed. He lies in a field in Beaumont-Hamel in France. I visited his grave, but none of us have any special claim to having people who lost their lives and made sacrifices in war.

I understand fully how important it is to memorialize these people. We have what we call in Newfoundland and Labrador a national war memorial on Duckworth Street—it used to be in my riding, but it's slightly off there now—that is called a “national war memorial” because we were then a nation, and small though we were, we made a significant sacrifice in World War I. The memory of that is very dear to me and very dear to people in Newfoundland and Labrador, but we do recognize that there needs to be some flexibility in how you deal with an offence involving damage to a cenotaph or war memorial.

I suppose you could pick and choose from Patricia Varga's letter if you wish, but I will read this paragraph in its entirety because I think we need to get the flavour of this. When Patricia Varga wrote, she couldn't come as a witness, but she offered her views and took the opportunity to comment on the text.

Obviously they strongly support the intent to include instances of mischief against a war memorial or cenotaph or any object associated with honouring or remembering these Canadian men and women who paid the supreme sacrifice in the service of Canada during war and on subsequent operations.

She did say that the membership “...is strongly in favour of recognizing the serious nature of these incidents and in consideration of the feelings and the emotions expressed by all Canadians against such acts.”

She goes on to say in the same paragraph: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.

We need to encourage greater understanding, greater appreciation. We understand that some of the people who testified before us, who were themselves veterans, are getting older and may not be the ones to do it, but the Canadian Legion is going to go on, and the memory is going to go on, and it's up to us as parliamentarians and members of society. In fact, in the last number of years we have seen a growing interest and concern and participation in remembrance services. All members of Parliament have acknowledged that and have commented on it in their own ridings. We see it in small towns and we see it in large places, and that education is growing.

I suspect that you're going to see, as a result, a significant decrease in incidents of this nature, and I don't think we need to put denunciation at the top of the list of the sentencing provisions as the primary motivation for this legislation.

I strongly support the approach suggested by the Royal Canadian Legion. Putting the Bill C-217 portion that sets aside a separate provision recognizing the seriousness into the Criminal Code acts in itself as a denunciatory act and, in the appropriate circumstances and when denunciation is the top-of-mind response, we would want to see our judges use that as a means of determining an appropriate sentence.

However, the sentence must fit the crime. Everybody should agree with that as a general principle, and it is not for Parliament to set down what the specific sentence should be in every particular offence when we have highly educated, highly trained, highly experienced, and intelligent judges who are in place to do that for us. We as parliamentarians ought to provide the legislative framework and let the judges do their work.

Those are my comments, Mr. Chairman, in response to some of the comments opposite.

[Françoise Boivin, NDP, Gatineau, QC]

Without expanding too much on what Mr. Harris said, I would like to make a point to my colleagues across the way.

As a lawyer, I believe that, from the outset, Bill C-217 creates somewhat of an inconsistent system within the Criminal Code. There is no way to remedy that other than to reject the bill outright, and that is not going to happen given your position on the subject.

That being said, let's put aside the inconsistency Mr. Harris so eloquently described. You know as well as I do that it is not right to treat an act of mischief involving a religious monument differently than one involving a war memorial. No matter what, the bill currently before us will create two systems within the Criminal Code. As a lawyer and a lawmaker, I take issue with that. Let's set that aside, however, and examine the logic behind Bill C-217 and what is being sought.

First of all, as we saw from Mr. Tilson's remarks, he wants his bill to recognize the severity of the act of desecrating a war memorial, specifically, and he wants the Criminal Code to recognize that wrongdoing as a targeted offence. That is not at all the problem. I think that everyone is in full agreement on that point.

Next, he wants a minimum sentence imposed. As Mr. Harris said, even the Royal Canadian Legion doubts that would actually achieve the desired objective. I am sorry, but when you are dealing with a young person who is 18, 19 or 20, the parents will likely be the ones paying the $1,000 fine. That is too bad, but that is usually how it goes in our society. The young person will end up with a criminal record for committing a criminal offence, but that is their problem. They are responsible for their actions. That is not the issue either.

If we, as a society, do not want to have these kinds of acts committed, we need to see to it that awareness is raised. That is what my colleague's amendment seeks to do. The objective is to keep that door open. We have heard from a good many witnesses. Mr. Jean and Mr. Harris have, like myself, practised criminal law. Others have as well and know what will happen. The judge and two lawyers, a crown attorney and defence counsel, will discuss exactly what transpired and the fact that the individual is remorseful. They will know that the accused will never re-offend. The crown attorney will be responsible for making a decision, laying the charge and imposing a minimum sentence. Let's be honest, here. What will the Crown do? The Crown will simply advise the accused to plead guilty to a lesser included offence, in other words, general mischief, and the accused will be dealt with differently.

I would prefer that we actually try to do what Bill C-217 seeks to achieve and that the person responsible understand that their actions will not be seen as a lesser offence. However, if

the person really feels remorse, genuine remorse,

I want to see certain remedial measures apply to the individual in question, but still within the meaning of Bill C-217.

I have a real worry in that respect. I believe in Bill C-217, but for a reason other than the minimum fine, which strikes me as a somewhat random notion with little meaning. I am more in favour of the recommendation made by the President of the Royal Canadian Legion, and that is making the individual spend time with veterans. We should provide for that possibility. I do not see that as going against the spirit of the legislation, but as being fully in line with clause 430(4.11), as proposed. So adding provision (4.12) would remove the plea bargain between the Crown and the defence to prevent the wrongdoing from being classified as a specific act of mischief relating to a war memorial. That makes perfect sense to me.

When I hear Mr. Goguen simply brush aside this argument, saying they will not accept it, I believe that is akin to saying Bill C-217 is doomed. I am from the area, and I saw what happened in Ottawa. Everyone was outraged. Whenever I speak about this bill, I will say that it was a missed opportunity to target an offence for which the individuals responsible would have been judged. Instead, we will end up with numerous plea bargains, meaning that people will plead guilty to a lesser included charge, get a slap on the wrist and be on their way, as is commonplace. That is what the outcome will be.

I will say that we tried to knock some sense into those members across the way today, in an attempt to convince them that what they have created will not produce the desired result. You are all intelligent people, come on! Let's not create something that we all know will do nothing to produce the desired effect.

When I think about the veterans, it pains me. We heard from the veterans who came. They are not familiar with legal specificity or the legal subtleties of the Criminal Code. All they want is for the individuals responsible to realize that their actions mean something to society, that we are willing to punish those who desecrate these memorials, who spit on them, in the true sense of the word, and for these individuals to receive the punishment they deserve, under the circumstances.

I belong to the Royal Canadian Legion in my riding of Gatineau, and when I talk about Bill C-217 to other members, I will tell them it is merely for show. I will tell them how many people will be found guilty and receive a minimum fine of $1,000 in similar cases in the future. I can say right now that the number will be zero. That is my prediction. There are too many flaws, too many shortcomings that allow the accused to get around the real problem, in situations when they acknowledge their stupid behaviour. We can all agree that many people do stupid things at one point or another in their life. It would be nice if we could just take a tough approach to the first person who did it.

Be that as it may, this is a major problem to my mind. From the outset, we are creating an inconsistency by having two criminal offences that, in my view, are equally severe, whether they involve religious monuments or war memorials. As lawmakers, we are creating something we know is faulty and will be a real pleasure for the courts to deal with, unfortunately to the detriment of the real victims in these situations.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order. This is meeting number 30 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).

I understand that Madame Boivin has a....

[Françoise Boivin, NDP, Gatineau, QC]

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.

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

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.

[Françoise Boivin, NDP, Gatineau, QC]

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.

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.

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

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”.

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. 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.

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

I'm assuming it's the same one I have. The motion is that Bill C-217, in clause 1—