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.