Evidence of meeting #29 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offence.
A recording is available from Parliament.
11:45 a.m.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
My understanding is that the police lay the charge. If it's a second time that you're convicted, then in a sentencing hearing your criminal record goes before the sentencing judge. It will be known to all that it's a second conviction.
11:45 a.m.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
11:45 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Excellent.
In terms of the offences, mischief involving places of worship, it mentions someone motivated by hate or prejudice. So there is an aggravating factor that does not limit us to general mischief as described in the previous paragraph.
Should we not do the same for war monuments? I imagine that the answer could well be yes. If we are considering war memorials to constitute a particular kind of offence, should we not at least include that concept?
11:45 a.m.
Executive Director, John Howard Society of Canada
I would think that might be extremely useful.
An example of a problem with our cenotaph here in Ottawa that happened a few years ago was that it was a young student, who I think had probably had too much to drink, urinating on the War Memorial. I don't think he intended any disrespect, but it was a disrespectful act.
I think the subjective intention of the perpetrator is to some extent important, if an aggregating factor in sentencing is that it was particularly offensive to a certain set of values attached to the War Memorial.
11:50 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Excellent. Thank you.
Last Tuesday, during the testimony from Mr. Tilson, whose bill this is, I thought I gathered that, even if there is…
—a plea bargain—the person would have to pay the minimum fine anyway.
But I find this utterly surprising, as an understanding of the bill, because if there is a plea bargain, usually it's for a lesser included offence, which would be regular mischief, let's say, and that would not conduct anybody to a $1,000 fine.
Am I correct?
11:50 a.m.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
Technically you could have a plea, based on a joint submission between crown and defence, for the minimum fine. But generally speaking, as a criminal lawyer I would be looking to negotiate with the crown to plead to the lesser included offence of general mischief for some sort of lesser penalty than a fine.
That's what I would be looking for, but it doesn't preclude some sort of plea bargain on the minimum offence.
11:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
Mr. Russomanno, I'm going to pick up on that.
What you're effectively saying is that the capacity of the judicial system to find people deserving of some form of lesser sentence is going to be there. If your client shows true remorse for what they've done and they've undertaken some community work, as you suggest, and they then proceed back towards having a negotiation with the crown, either before a pretrial or at pretrial, you could explain the circumstances, and therefore the crown and you could come to an agreement that this deserving individual, who has shown that they actually have remorse for the desecration of a war memorial, should have the opportunity to plead to a lesser offence and obtain a conditional sentence, and therefore, their life won't be ruined, as you suggested, by having a criminal offence.
That's still available even with this legislation.
11:50 a.m.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
It's available, and that's where my comment goes at the beginning that you're transferring discretion from the court to the crown. It's not up to the sentencing judge to decide what count is being pled to; that's the crown's discretion. So you would have to convince the crown.
The problem with transferring discretion from the court to the crown is that the crown's discretion is not reviewable at all. We can review the court's use of discretion through appellate courts, and that's done all the time.
As I was going through the debates I did find it interesting that the impetus for this legislation was the anger that resulted from charges being withdrawn in the case of the Ottawa war memorial and charges being withdrawn in the riding of the private member who proposed this bill with respect to war memorials.
Imposing a mandatory minimum sentence does nothing to prevent a crown from using his or her discretion to withdraw the charge outright or ask for a plea to a lesser included offence. This is what I find problematic. Whereas, if you leave it in the hands of the judge, the judge can decide that we're going to take a plea to this particular offence—you'll be convicted, and it will be on your record not only that you did commit mischief, but that it was in relation to a war memorial. The judge has the discretion to impose a discharge.
11:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
Yes, but crown discretion has always been there. It's always there; nothing here is changing that and nothing ever will. The crown always has discretion, even before this legislation.
11:50 a.m.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
Yes, of course it has. But what this does is force the hand of lawyers to look for innovative ways to get the crown to use its discretion, which I suspect causes anger in this committee.
11:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
That is what you just said you did anyway, when you said that if somebody came into your office, this is what you would try to do.
11:50 a.m.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
No. What I was referring to is using that to then pitch a discharge to the judge, so whether the crown agrees with me or not that they're going to go for a discharge, I would still have a chance in front of the sentencing judge to say, my friend disagrees with me here, but I'm going to be asking for a discharge, because these are all the things my client did.
11:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
Right.
Ms. Latimer, I don't have a copy of your statement, so I took some notes and I hope I have it correct. You seem to be saying that under principles of common law, the law should be broad in order to command public respect. That's what you seem to be saying.
I'm going to kindly disagree with you, to an extent. I think that having laws that reflect the values of your community engenders respect for the law, in fact.
In hearing the testimony from veterans who came to this committee earlier in the week, and certainly from talking to my constituents, I can tell you that this will enhance public respect for the law, because they feel that the law will now reflect what they view as the severity of desecrating a war memorial.
My question to you is, have you talked to the broad Canadian public about whether or not this will enhance public respect, or are you just speaking from some previously enunciated principles?
11:55 a.m.
Executive Director, John Howard Society of Canada
I'm speaking from what Mr. Woodworth described as principles of criminal law and criminal law development, which is that broad, overarching laws are generally—and we may disagree on the principle—preferable to particularistic ones. That's not to say that some particular laws don't resonate well with certain constituents within society or command the respect of society writ large. But once you start down the road of having overly particularized offences, you're going to have a push-back from others who feel that their monuments should also have that type of protection.
It is, for example, like when you make an apology to a certain group for an event that happened in the past. You're going to get a lot more people coming forward saying: “We too experienced.... Why aren't we getting an apology?”
11:55 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
Well, surely you're not suggesting that we shouldn't have those apologies because then others might be asking for an apology.
11:55 a.m.
Executive Director, John Howard Society of Canada
No. I'm saying it is better to have a broader category where people can see that equally valuable—
11:55 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
So we should include more monuments and memorials in the legislation. Is that what you're suggesting?
11:55 a.m.
Executive Director, John Howard Society of Canada
I say it would be better to have a general category rather than just looking at war memorials, or, preferable to me, to just use the existing mischief offence with some guidance to prosecutors and others about how it should be applied and what are aggravating and mitigating circumstances—which could include what the symbolic value of the monument was.
11:55 a.m.
Conservative
11:55 a.m.
NDP
Pierre Jacob NDP Brome—Missisquoi, QC
Good morning.
My first question is for Ms. Latimer.
I understand that respecting war memorials is as important for you as it is for us. But you seem to be saying in your presentation that mandatory minimum sentences will not have the intended deterrent effect and will not achieve the desired result. You seem to be coming down more on the side of restorative justice.
Could you give me some examples, some more details, showing that restorative justice will be more effective, not only for society but also for the offender, who will find it more to his advantage.
11:55 a.m.
Executive Director, John Howard Society of Canada
Thank you very much.
May I answer in English?
