Justice Committee on March 29th, 2012

[Catherine Latimer]

Thank you very much.

My experience has been that—and I used to be the executive director for youth justice policy, where you have criminal accountability for young people—if you find processes by which the young person learns why the behaviour violated the law, why it upset people, and give them a chance to make reparation in a restorative justice process or in another type of sentence, you come a long way to encouraging pro-social conduct. They're not just respecting the letter of the law; they're respecting the spirit that underpins the law—namely, you're hurting people by defacing or disrespecting the monuments to the values that they hold dear.

I think there is an opportunity for a strong, educative, pedagogic response to these types of offences. It's a very important experience, particularly when you're picking up people, young people and adults, who may have cognitive disabilities or challenges or a variety of other things. You're inviting them to understand why this is a problem.

I think that's much more effective. It's certainly been our experience in youth justice that it was much more effective in terms of holding the young person to account and reinforcing pro-social conduct.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

So, if I understand correctly, it is not a matter of reoffending one, two, ten or twenty times. Restorative justice is effective as a general concept.

[Catherine Latimer]

Certainly, yes.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

Do I have a little time left, Mr. MacKenzie? Great.

My second question is for Mr. Russomanno.

You also said that, for adults in particular, probation would be more effective than mandatory minimum sentences.

Could you explain to me in your own words why, from your experience—of one, two or ten cases—probation is more effective than mandatory minimum sentences?

[Leonardo S. Russomanno]

A probation order, I think, as compared to a minimum fine, which stands alone, has much, much more flexibility. A fine is almost the pinnacle of inflexibility, whereas a probation order can have any number of conditions that can combine both rehabilitative and punitive conditions, such as community service, charitable donations, and addressing certain issues that may underpin the commission of the offence. In many cases it becomes far more onerous.

The flexibility really has to do with the fact that it can be attached to a conditional discharge, which in effect does not have somebody carry a criminal record for the rest of their life.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Why is it preferable to leave the discretion to the judge, rather than to tie his hands with mandatory minimum sentences?

[Leonardo S. Russomanno]

I think it's important to give the judge the discretion. Every once in a while you have an exceptional case. You may have somebody who has made significant steps to atone for their conduct and for whom the imposition of a criminal record would actually be contrary to the public interest, contrary to the interests of Canadians.

You want to give the judge that flexibility, in my opinion.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you to the witnesses for coming today.

I want to focus on something Mr. Cotler talked about earlier about specificity and symbolism. There are, of course, under the Criminal Code the offences of mischief—mischief relating to religious property, and to cultural property also.

Mrs. Latimer, you're arguing that these two first offences have no mandatory minimums, and of course the one we're proposing would. You've argued that basically this puts an argument between higher values. The Criminal Code in essence is the codification of public order, and it's obviously more heinous to commit a murder than it is to do a shoplifting. There's always a scale of values.

Bearing in mind that this act does not apply to young offenders because there's the Youth Criminal Justice Act, I would argue that it is warranted to have a higher value on this particular offence. The people who laid down their lives and who we are honouring by these war memorials in fact fought for democracy and for the purpose of religious freedom, for culture, all of which are in the Charter of Rights, which is the highest law of the land.

Is it not warranted to give a greater dissuasive power to the state in the case of those who have died for the ultimate reason—for freedom?

[Catherine Latimer]

Having come from a family where my grandfather and my father and all his brothers served in both World War I and then World War II, we certainly have a lot of respect for those who have sacrificed years of their lives, and often their lives, for the values we hold dear, including those in the charter. But that doesn't mean we can come up with things that actually might well violate some of the principles of the charter. The charter is quite clear about proportionate penalties and section 7 and fundamental principles of justice.

Unlike government sponsored bills, where the Minister of Justice has an obligation to report to parliamentarians if there is a charter concern, I think on private member's bills, where there is no such obligation to report charter concerns, the committees, and all of us, need to be a bit more vigilant as to whether those basic charter protections that many of our forefathers fought and died for are in fact being protected in the bills that come forward. They may certainly respond in a heartfelt way to a problem, but may not be doing it in a way that's consistent with an overarching set of human rights values, charter values, and criminal justice values.

[Leonardo S. Russomanno]

If I could add something with respect to the charter—and unfortunately I didn't have too much time to look into this—I saw a potential issue arising with respect to section 2(b).

As you know, mischief doesn't only consist of destruction of property but also the interference with lawful use of property. In relation to war memorials, I see a potential issue being somebody basically using their freedom of expression to protest a particular war at a particular memorial, and it may intersect with the right to freedom of expression under section 2(b) of the charter.

It's an issue I wanted to flag for the committee to consider as well.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

My argument to that, and certainly we are constrained by the constitutionality, would be that this is constitutional. Of course there are parameters to the charter and infringement under the charter that is just and reasonable in a democratic society, and it's my feeling it would certainly be upheld by the court if it were at all an infringement. I feel it's not. I believe the war dead are of the utmost importance, and for that reason I support this.

[The Chair, Conservative, Dave MacKenzie]

You have one minute.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'll share my time with Mrs. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I was wondering, Mr. Russomanno, in your criminal law career if you have ever had the opportunity to apply for a pardon for somebody, to help them apply for a pardon or what we will be calling a “record suspension”?

[Leonardo S. Russomanno]

I've had peripheral involvement but nothing too much.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Would you know then, or have some understanding, that if someone is charged with what would generally be considered a minor offence, for which they may pay a $1,000 fine, then it is quite likely, and I've heard it here several times from you, that they would have a record for life?

Would you not agree with me that if your only offence has been desecration of a war memorial, for which you paid a $1,000 fine, your chances of applying for and getting a pardon or a record suspension are pretty high?

[Leonardo S. Russomanno]

I can't really speak to the probabilities. I know that it's becoming more difficult to get a pardon, generally, and that there are obviously delays in that. I'm being reminded that there are delays in obtaining a pardon.

I would also say that if you're going to argue that it's easy to get a pardon, then that would sort of defeat the denunciatory aspect of the bill that you want to have, right?

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Not at all. I disagree with you.

[The Chair, Conservative, Dave MacKenzie]

Madam Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

Thank you for taking the time to come and testify before us today.

We have received a letter. Unfortunately, I am going to have to read the English version because we have not received the French version yet. It was written by Mr. Archie Kaizer. He says that the bill is not really necessary. Let me read an excerpt from his letter:

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...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.”

In your opinion, is this bill really necessary? Based on your experience, do you agree with him that a judge will consider the motives behind this kind of crime?

[Leonardo S. Russomanno]

Yes, I would agree that a judge will most definitely take that into account. I suppose what I was getting at before was that I think the inclusion of this language is symbolic, in that it would be an expression of Parliament that these acts are particularly worthy of condemnation. I certainly wouldn't disagree with that. However, I would wholeheartedly agree that judges already do take these factors into account.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Do you want to add anything?

[Catherine Latimer]

I also agree with Professor Kaiser. I question whether you actually need a separate offence to achieve these policy objectives.