Justice Committee on March 29th, 2012

[Françoise Boivin, NDP, Gatineau, QC]

Anyway.... It was a nice try.

[The Chair, Conservative, Dave MacKenzie]

You can challenge the chair.

[Françoise Boivin, NDP, Gatineau, QC]

Just for fun, I challenge. I still like you, but I do challenge.

[The Chair, Conservative, Dave MacKenzie]

Okay, but there is no debate.

The vote is whether you are voting to sustain the motion.

[A voice]

No, the decision.

[Voices]

Oh, oh!

[The Chair, Conservative, Dave MacKenzie]

It's the ruling. I'm sorry. It's whether you vote to sustain the ruling.

[Françoise Boivin, NDP, Gatineau, QC]

No, we don't want to sustain your ruling.

[The Chair, Conservative, Dave MacKenzie]

Well, you might want to.

[Voices]

Oh, oh!

[Françoise Boivin, NDP, Gatineau, QC]

I still say that I like you.

(Ruling of the chair sustained)

[The Chair, Conservative, Dave MacKenzie]

The motion stands.

[A voice]

The ruling.

[Voices]

Oh, oh!

[The Chair, Conservative, Dave MacKenzie]

The ruling stands.

So now we go to amendment NDP-1.

[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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris.

Mr. Goguen, go ahead.

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

Thank you, Mr. Chair.

The debates in this committee certainly represent the full spectrum of what one feels is proper for sentencing. On the one hand we have the amendment that seeks to get rid of mandatory minimum sentences completely. Witnesses Mr. Eggenberger and Mr. Page have said that these sentences are just the minimum, and they're probably not adequate. So we feel that the sentencing structure there strikes a compromise. It's proportionate and reasonable. For that reason I'll certainly not be voting for the motion.

It's interesting that somebody picked up on the issue of the sentencing provisions of this act being very similar to drinking and driving. One may wonder why someone would commit a repeat offence of drinking and driving. I guess you could say that alcoholism is an illness. But if somebody commits a repeat offence of desecrating a war memorial, you really have to wonder if they'd even charge them, or if they'd commit them under a lieutenant-governor's warrant. It's insanity.

I note that Professor Kaiser's specialty is psychiatry, so the blunt edge of the law doesn't necessarily have to be applied in the case of someone who repeatedly desecrates war memorials.

[The Chair, Conservative, Dave MacKenzie]

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

I'll be speaking in support of the amendment. I had the pleasure and honour of being Professor Kaiser's student back in 1985 and 1986, but I hope you will hold his opinion in no less regard because of that.

We share the concern with respect to mandatory minimums. We are of the firm belief—and I think the evidence bears this out—that mandatory minimums do not serve as deterrents to criminals, nor effective remedies to crime. They remove judicial discretion, often disproportionate to the crime committed. They also remove transparency by encouraging perpetrators to plead guilty to lesser offences.

In the case of mischief relating to war memorials, the use of plea bargains or pleading guilty of a lesser offence would be particularly detrimental, as the public would not be aware that a war memorial had been damaged or desecrated by an individual who had pleaded guilty to a lesser offence. This in turn would remove opportunities for educational campaigns and other alternative remedies that might better serve the community by increasing awareness of the sacrifices made by Canada's war veterans.

For those reasons we'll be supporting the amendment.

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Casey.

Madam Boivin.

[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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madame Boivin.

Shall NDP-1 carry?

(Amendment negatived)

We now have G-1.

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

Thank you, Mr. Chair.

Obviously we support denouncing conduct that shows disrespect to fallen Canadians in this act. However, we're concerned that the proposed sentencing structure may have an unintended negative consequence, and this deals with the maximum sentence.

As it's currently drafted, the legislation would provide for a lesser maximum sentence where the offence is prosecuted by indictment, than currently exists under the sentence for a similar mischief offence under section 430 of the Criminal Code. Right now it provides for a maximum five years' imprisonment rather than ten. Therefore, I am proposing an amendment to clause 1 of the bill.

I move that proposed paragraph 430(4.11)(b) of the bill be amended by deleting the word “five” in line 3 on page 2 of the bill and replacing it with “ten”, so that the proposed maximum penalty on indictment would be ten years' imprisonment in order to ensure consistency with other mischief offences in the Criminal Code.

It's a matter of consistency, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Goguen.

Mr. Harris.