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.
Conservative
Liberal
Irwin Cotler Liberal Mount Royal, QC
It would appear to me—and I address the question to both of you—that the mischief to war memorials could be prosecuted either under the general law of mischief or under the specific applications of that general law, be it to cultural property or be it to a religious property, and a cemetery would come into it in that regard.
My question is, when we're dealing with this particular type of offence, will the specificity of this offence have a symbolic value of such a nature that the particularity of the offence might thereby deter its commission in a way that the generality of the mischief offences, as they now appear in the Criminal Code, do not? Or do you think the symbolic particularism involved here and the specific denunciation involved here will not have any effect?
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
From your question, I really glean from that two major principles of sentencing: one is denunciation and the other is deterrence. I could not disagree. I certainly would agree that, by particularizing this kind of offence in relation to war memorials, I think it's a message from Parliament that this particular kind of conduct should be especially denounced.
Now, with respect to deterrence, I wouldn't go so far as to say that this would really have some sort of general deterrence ability with respect to the public at large. I think that's just a general problem with general deterrence, if I could put it that way. I'm not sure that general deterrence is really much of a tool in many cases, and I think this case is no different.
Again, I don't think there's a particular problem. In fact, I think it does send a message from Parliament that this particular kind of mischief is deserving of a higher form of denunciation.
Liberal
Irwin Cotler Liberal Mount Royal, QC
But how does that dovetail with the notion that we should be legislating in terms of principled categories of offences rather than the specificity of offences? It seems to me here that you have your overall issue regarding how you approach legislation in matters of criminal law, and then the specific issue of denunciation and its symbolic character with regard to this specific type of offence. How do you dovetail the two?
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
Well, it's difficult. I think that what Ms. Latimer was talking about in terms of a general desire to simplify the Criminal Code is something that I certainly could sympathize with, and we can leave it to the courts to determine whether something is particularly aggravating.
At the same time, Parliament does have a right to specify and to send those kinds of messages. My problem is related more to when courts are essentially handcuffed into a particular minimum sentence.
Executive Director, John Howard Society of Canada
I would say that by making a particular offence, the message you're sending is that this is consistent with a shared or collective sense of values—that this kind of property should be held in higher esteem. Certainly, Parliament can do that. I don't think it will have any effect at all in deterring those who would otherwise be inclined to disrespect that piece of property, but I think it might do something in terms of showing a collective sense of values.
But I think once you do that, you set up a competition amongst people who value certain monuments, and they will ask, “Why isn't our monument given the type of protection that this one is?” On the ones you point to in terms of religion and desecration of property, that's coupled by the desecration having to be motivated by bias or hate, so it's different from saying that it's not okay to urinate on the cenotaph but it's okay to go down the street further and urinate on the memorial for the firefighters....
How do you reconcile that this type of memorial deserves greater protection from Parliament than some of the others that commemorate values that are very important to some people? A lot of firefighters and others die in the service of their fellow citizens as well. It's hard to justify why this one should be singled out.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair. And my thanks to the witnesses who have appeared here today for us. I found it a very stimulating conversation.
I'm going to open by saying thank you to Ms. Latimer for approaching this on the basis of principled legal analysis. I often am amazed when academics come before this committee. I'm thinking of one particular recent event where the academic in question went on at length about what might go wrong in the application of a law and what circumstances might arise. I finally said to her, “I understand that could all go wrong and these circumstances might arise, but what is there that you object to, in principle, with this law?”, and she had no answer.
I'm very concerned about that because I wonder if in law school they even teach principled analysis anymore because this was a law professor who didn't seem to get it. So I want to encourage you in that. I find it refreshing. You and I might not always agree on the principles, but at least, then, we're having an intelligent conversation. I hope to come back to that in a moment. But before I do, I want to have a brief conversation with Mr. Russomanno.
I wonder, Mr. Russomanno, if you know, historically, how conditional discharges actually got their beginning? Have you ever heard that story?
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
I think I heard it a long time ago, but I don't recall right now.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Let me remind you because it's still a useful device. And it occurred, I'm proud to say, in my hometown of Kitchener just a few years before I started practising, about 40 years ago. It was probably before you were born, I don't know.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
That's correct, sir.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
We had a judge by the name of Judge J.R.H. Kirkpatrick, who was always thinking out of the box. He invented what we later came to call the rehabilitative remand. When someone appeared before him on an offence for which he knew there was guilt but he didn't think that the offence really fit the offender, he would adjourn the case before plea in order to give the offender an opportunity to do some community service work of a good kind. Providing that his instructions were carried out, on return of the matter, he would then dismiss the charge. I guess he probably had the complicit agreement of the crown in that, but it later became formalized as the conditional discharge.
I highly recommend that device to you if you can find the right judge and if you have an offence like maybe one under this new law that you don't think fits the offender. If you can convince the judge of that, you might find a judge who would be willing, with the consent of the crown, to proceed on that basis.
I'm very proud that kind of out-of-the-box justice innovation occurred in my hometown. In fact, there are many other innovations in Kitchener that come to the justice system. It is a way of sometimes ameliorating things.
To go back to the issue of principles, I must say, Ms. Latimer, I am intrigued by the notion of generalisms versus particularisms. I'm familiar, from my education, with the notion that hard cases make bad laws, but I take that to refer to the particularism of specific cases rather than the particularism of general themes in the law.
When I consider the number of general themes in the law that give rise to valid particularisms, I'm not quite convinced of the notion that there's anything particularly inherently wrong with it.
For example, one could say that drunk driving is just another form of negligent driving. All the same, I would want to have an offence of drunk driving.
One could say that spousal assault is just a particular kind of assault, but all the same, I would want to have specific legal reactions and systems to deal with spousal assault because there are some principles that are different in spousal assault or impaired driving as distinct from other assaults or other driving.
What I like about what you said is that we should try to look for the principles. If I examine the principle in 217, it is that there are some kinds of mischief that deserve a particularly denunciatory approach. I agree with you that there are other kinds of mischief that probably fit within that principle, and if this was government legislation, I might want it to be a more broad principle approach that would cover all of those kinds of cases that fit within that principle. I really like the idea of looking for the principle.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I was just giving food for thought. I didn't have a question, just a good conversation.
Thank you.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you.
Apparently it is acceptable to make comments without asking a question. I was taken somewhat to task for doing that last Tuesday, but, there you go…
I appreciated your testimony, which has cleared up some points for me. I would like to ask Mr. Russomanno some specific questions.
The way in which this bill is expressed gives me the impression that, in determining that kind of sentence, they sort of had drunk driving in mind. There is a first offence, then a second, for which the sentence is 14 days, then a third, for which there is another penalty. As this is your area of practice I would like to ask you this question.
We often see headlines like “Drunk driver: seventh time”. Then we wonder why that person has still not been put in jail and why his driver's licence has not been taken away. Perhaps this bill gives us the impression of being falsely severe. Actually, in a lot of cases, the crown does not even have the time to check the accused's record before laying the charge, either as a summary offence or an indictable offence. That is why I feel that a repeat offence of mischief, such as the destruction of a monument, may very well be treated as a first offence.
Am I wrong in saying that?
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
I'll respond in English, if I may.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
My reading of the legislation is that you have to have been convicted a second time under this particular provision in order to attract the mandatory minimum second step in the sentencing. That's my understanding.
Françoise Boivin NDP Gatineau, QC
So the crown doesn't have to attest that it's a second infraction in its acte d'accusation?
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
My understanding is that it has to be a second conviction. If I were convicted of the offence two years ago, and then I come before the courts again and I plead guilty, I would be subject to the mandatory minimum of not less than 14 days. There's a 14-day minimum the second time I'm convicted of that specific offence.
NDP
Françoise Boivin NDP Gatineau, QC
My precise question is, when they write the acte d'accusation, does the crown have to say in the infraction “this is a second”? Or, is it that as soon as you're found guilty, because you have been found guilty before, it's going to be automatically seen as a second?
