Evidence of meeting #30 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 denunciation.
A recording is available from Parliament.
Conservative
The Chair Conservative Dave MacKenzie
I call the meeting to order. This is meeting number 30 of the Standing Committee on Justice and Human Rights.
Pursuant to the order of reference of Thursday, February 2, 2012, we will be considering Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials).
I understand that Madame Boivin has a....
NDP
Françoise Boivin NDP Gatineau, QC
I have a subamendment.
I move to amend the current motion to replace the word “convicted” on line 2 with the words “who pleads guilty to or is found guilty”, which would make the amendment read as follows:
(4.12) A court may delay imposing a punishment on a person who pleads guilty to or is found guilty of an offence under subsection (4.11) to enable the person...
The rest stays the same.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
That's not ours.
I have a question. Could you explain to me the difference between “convicted of” and the combined effect of “pleads guilty to or is found guilty of”?
NDP
Jack Harris NDP St. John's East, NL
There is a difference, of course. The idea here is that we want to have an escape clause. If you look at the Criminal Code section with respect to discharges and other forms of alternative treatment, there is a distinction between a conviction and a finding of guilt.
A person who is found guilty or pleads guilty to an offence is entitled to consideration that—or at least an argument can be made that—he might receive a discharge. A conviction guarantees a criminal record and brings into play the other aspects of all of that which we are seeking to mitigate.
It's a technical wording change that would be required to conform to the sentencing principles involved.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
It took a while to say that it was an escape clause, but the purpose of the bill is to elevate the desecration of a war memorial to a higher level so that there is no escape clause. You may say they'll plead down, but for that reason there should be no escape clause for desecration of war memorials. For that reason, we'll certainly be voting against the amendment.
NDP
Jack Harris NDP St. John's East, NL
Thank you for your comments.
Let me make an important point. When this was proposed last week, there was a desire for an opportunity to consider it and consult with the individual who moved the motion.
This is a private member's bill, and while we obviously have great respect for our colleagues who present legislation, this committee has a role, and the House will have a role, to ensure that private members' legislation that comes before the committee is considered in the light of other aspects of the Criminal Code and criminal sanctions generally.
I would reiterate some of the arguments that were made, in particular by the witnesses who presented, by Professor Kaiser from Dalhousie, and significantly in the letter from the president of the Dominion Command of the Royal Canadian Legion, Patricia Varga. She recognized that this offence is often committed by people who essentially are in ignorance of the consequences in terms of how it insults the memory of and the sensibilities of all citizens, in particular of those who have lost loved ones who gave their lives in pursuit of the values that we hold dear, and she believes that there ought to be a variety of responses to that.
We heard about situations, and in fact the situation that probably gave rise to this occurred at the National War Memorial six years ago, which was insulted by someone urinating on the grounds. This person then met with Canadian Legion members here locally, who informed them of the significance of what they had done. They were remorseful; they became volunteers and worked with the Canadian Legion. It was considered a valuable restorative justice response and also an education, not only for them but also to all Canadians, about the seriousness of this.
We have before us a piece of legislation that proposes to treat more severely, as I put it the other day, someone who in their ignorance might spray “bravo” on a war memorial than someone who puts a swastika on a synagogue.
I put it that way because this would be the effect of this legislation, frankly. If we have that on our books, then we are not doing a proper job in making sure that our law responds to what the values of our society are.
The men and women who fought in the Second World War fought against that very thing, and now we're saying that a monument to them is more important than what they fought for itself. We've gone on record as saying that we support acknowledging the desecration of a war memorial as a serious matter, and we're satisfied to put in section 430 of the Criminal Code as a separate offence, with the possibility of it being treated as seriously as it needs to be treated, depending on the circumstances.
The first amendment we made was to take out the first sections, which would provide for the three levels of mandatory minimums but have a serious maximum penalty. That is the way that our Criminal Code deals with the seriousness of offences, such as in section 430 itself, where it says that mischief, meaning damage to property, that causes actual danger to life has no mandatory minimum but has a maximum of life imprisonment.
That's how the Criminal Code treats the seriousness of offences in section 430. If we're going to amend section 430 of the Criminal Code to acknowledge this, which we support, as a committee we must recommend that it be done in concert with the existing provisions of the code so that it makes sense and does not send the wrong message to Canadians.
It's one thing to do this because we think it should be done, but if we think that having this in the Criminal Code is going to have the effect that the mover of this motion wants, then I think, if we listen to what professor Kaiser says, that's not going to be achieved.
The factors that weigh on someone who might be deterred by the sentence are not present in those who commit this kind of a crime. There is the lack of education, the ignorance, the lack of knowledge of what's going on, drunkenness, youth.... I don't mean young persons under the Youth Criminal Justice Act; to me, it's a 19-, 20-, or 21-year-old who hasn't yet reached the state of societal maturity that we would hope that they would.
These are often the people who get involved in things like this by reasons of carrying on or drunkenness or whatever it happens to be. If it's a serious offence—if someone is taking apart a war memorial to steal brass or copper or scrap—then that's obviously a premeditated offence that ought to be treated with the full seriousness of the law, and we would support raising the bar so that it could happen.
However, what we're attempting to do here is to have our law conform to the reality of the kind of situation that happens here and to provide the kinds of alternatives that Patricia Varga, the president of the Royal Canadian Legion Dominion Command, suggested in her letter to this committee.
We will stand with the Royal Canadian Legion on this. We will seek to have a penalty that reflects the seriousness of the crime but that also recognizes that there's a significant role in ensuring that accused persons in these circumstances are treated in a way that meets the needs of our society and that the people who engage in this are not necessarily hardened criminals who deserve to go through a criminal charge with a mandatory minimum and a lengthy, expensive, and uncertain process to receive what used to be called a pardon but now is not.
Thank you.
NDP
Françoise Boivin NDP Gatineau, QC
Without expanding too much on what Mr. Harris said, I would like to make a point to my colleagues across the way.
As a lawyer, I believe that, from the outset, Bill C-217 creates somewhat of an inconsistent system within the Criminal Code. There is no way to remedy that other than to reject the bill outright, and that is not going to happen given your position on the subject.
That being said, let's put aside the inconsistency Mr. Harris so eloquently described. You know as well as I do that it is not right to treat an act of mischief involving a religious monument differently than one involving a war memorial. No matter what, the bill currently before us will create two systems within the Criminal Code. As a lawyer and a lawmaker, I take issue with that. Let's set that aside, however, and examine the logic behind Bill C-217 and what is being sought.
First of all, as we saw from Mr. Tilson's remarks, he wants his bill to recognize the severity of the act of desecrating a war memorial, specifically, and he wants the Criminal Code to recognize that wrongdoing as a targeted offence. That is not at all the problem. I think that everyone is in full agreement on that point.
Next, he wants a minimum sentence imposed. As Mr. Harris said, even the Royal Canadian Legion doubts that would actually achieve the desired objective. I am sorry, but when you are dealing with a young person who is 18, 19 or 20, the parents will likely be the ones paying the $1,000 fine. That is too bad, but that is usually how it goes in our society. The young person will end up with a criminal record for committing a criminal offence, but that is their problem. They are responsible for their actions. That is not the issue either.
If we, as a society, do not want to have these kinds of acts committed, we need to see to it that awareness is raised. That is what my colleague's amendment seeks to do. The objective is to keep that door open. We have heard from a good many witnesses. Mr. Jean and Mr. Harris have, like myself, practised criminal law. Others have as well and know what will happen. The judge and two lawyers, a crown attorney and defence counsel, will discuss exactly what transpired and the fact that the individual is remorseful. They will know that the accused will never re-offend. The crown attorney will be responsible for making a decision, laying the charge and imposing a minimum sentence. Let's be honest, here. What will the Crown do? The Crown will simply advise the accused to plead guilty to a lesser included offence, in other words, general mischief, and the accused will be dealt with differently.
I would prefer that we actually try to do what Bill C-217 seeks to achieve and that the person responsible understand that their actions will not be seen as a lesser offence. However, if
the person really feels remorse, genuine remorse,
I want to see certain remedial measures apply to the individual in question, but still within the meaning of Bill C-217.
I have a real worry in that respect. I believe in Bill C-217, but for a reason other than the minimum fine, which strikes me as a somewhat random notion with little meaning. I am more in favour of the recommendation made by the President of the Royal Canadian Legion, and that is making the individual spend time with veterans. We should provide for that possibility. I do not see that as going against the spirit of the legislation, but as being fully in line with clause 430(4.11), as proposed. So adding provision (4.12) would remove the plea bargain between the Crown and the defence to prevent the wrongdoing from being classified as a specific act of mischief relating to a war memorial. That makes perfect sense to me.
When I hear Mr. Goguen simply brush aside this argument, saying they will not accept it, I believe that is akin to saying Bill C-217 is doomed. I am from the area, and I saw what happened in Ottawa. Everyone was outraged. Whenever I speak about this bill, I will say that it was a missed opportunity to target an offence for which the individuals responsible would have been judged. Instead, we will end up with numerous plea bargains, meaning that people will plead guilty to a lesser included charge, get a slap on the wrist and be on their way, as is commonplace. That is what the outcome will be.
I will say that we tried to knock some sense into those members across the way today, in an attempt to convince them that what they have created will not produce the desired result. You are all intelligent people, come on! Let's not create something that we all know will do nothing to produce the desired effect.
When I think about the veterans, it pains me. We heard from the veterans who came. They are not familiar with legal specificity or the legal subtleties of the Criminal Code. All they want is for the individuals responsible to realize that their actions mean something to society, that we are willing to punish those who desecrate these memorials, who spit on them, in the true sense of the word, and for these individuals to receive the punishment they deserve, under the circumstances.
I belong to the Royal Canadian Legion in my riding of Gatineau, and when I talk about Bill C-217 to other members, I will tell them it is merely for show. I will tell them how many people will be found guilty and receive a minimum fine of $1,000 in similar cases in the future. I can say right now that the number will be zero. That is my prediction. There are too many flaws, too many shortcomings that allow the accused to get around the real problem, in situations when they acknowledge their stupid behaviour. We can all agree that many people do stupid things at one point or another in their life. It would be nice if we could just take a tough approach to the first person who did it.
Be that as it may, this is a major problem to my mind. From the outset, we are creating an inconsistency by having two criminal offences that, in my view, are equally severe, whether they involve religious monuments or war memorials. As lawmakers, we are creating something we know is faulty and will be a real pleasure for the courts to deal with, unfortunately to the detriment of the real victims in these situations.
Thank you.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you, Mr. Chairman. There are three things that I wish to say.
The first relates to Professor Kaiser. I'll begin by saying that I found his observations, as far as they went, to be intelligent and thoughtful, and I appreciated them. What I noticed was that he did not address what I perceive to be the main point of the bill.
Second, unlike my colleagues who have just spoken, I'm not at all convinced that the main point of this bill is deterrence. I believe it is more about denunciation. As a Parliament, we wish to send a message to Canadians that this conduct is abhorrent.
I've often thought, when I listen to submissions on the bills that we deal with, that people don't address the issue of denunciation. Perhaps it's because they don't feel that there is a point to denunciation, but it is a principle of law that has been around at least as long as I've been involved with the law. To my knowledge, no one has repudiated it.
I take this bill from that point of view and not so much from the point of view that it will necessarily deter anyone who is drunk; you can't deter drunks unless you take the booze and drugs away from them. We wish to ensure that the message is out there, for the sake of the veterans and others who are affected by these offences, that we denounce this behaviour.
With regard to synagogues, my view is that we're living in an age in which religion is more and more disrespected, so I'm pleased to hear my friends from the NDP standing up for those of us who have religious convictions. I'm not at all sure that we, in our Criminal Code, have deliberately set out to provide little or no denunciation or sentencing to support religious institutions that suffer damage in the manner that has been described, such as swastikas on synagogues or other kinds of very undeserving, unbecoming conduct. I think if we put our minds to it, we might indeed feel that those kinds of offences are deserving of denunciation.
I go back to what was said in the course of one of the witnesses' submissions, which was that we should approach things on a matter of principle. As a matter of principle, I think that a swastika on a synagogue is worthy of a denunciatory sentence and legislation. However, to try to amend a private member's bill to include that kind of protection is not appropriate. Perhaps the government will revisit that issue in the future.
Lastly, regarding the amendment before us, I have a number of reasons for not being in a position to support it. I'm going to state what I perceive to be the most obvious one.
Even if what the members opposite said was true about first offenders—that they do something as a matter of drunkenness or stupidity and they express remorse and therefore are not deserving of a mandatory sentence and the record that goes with it—and even if all of that were to be accepted, I can't see how it would apply to someone who did it two or three times or why we wouldn't want to have a mandatory minimum penalty for someone who repeated this kind of conduct. It might be useful for personal deterrence, if not general deterrence. I just can't go along with the proposition that we should sweep all of the mandatory minimums out of this bill, even if what the members opposite said about first offenders was true. I cannot support the amendment for that reason alone, although there are other reasons.
Thank you.
Conservative
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Thank you, Mr. Chair.
We did take the weekend to consider the amendments that were tabled last week and to consult with the mover of this private member's bill. I certainly took some time and thought about comments that were made. I particularly agree with Monsieur Jacob's comments last week about education. I think it's very important. Educating our children about the sacrifices that have been made is something that our society should be much more on top of in a general way.
Even though I'm of an age, as Mr. Harris said, that I can see a 21-year-old as young, I am also thinking there's a 21-year-old sitting on your side of the table right now who has the full responsibility of a member of Parliament. There are also many 19- to 21-year-olds lying in graves in France and around the world who have served our country.
I'm also mindful that it's the 95th anniversary of Vimy Ridge this week. A great-uncle of mine, in his last letter home before he died in that battle at the age of 21, said, "I'm in command of 150 men. Can you imagine that, Mom and Dad? We're going to go over that hill today." He never came home.
It seems to me that if 19- to 21-year-olds can serve as members of Parliament and can go to war and die for our country, we should feel that a 21-year-old who has been able to grow up in peace in a country that was forged on the valour of those who have gone before should be mindful of war memorials and attempts we have made to honour those who have died for our freedoms and the way of life we have.
You've mentioned several times Ms. Varga's letter from the Legion as being in favour of your position. In that letter dated March 28, which you filed, she says that the Royal Canadian Legion “strongly supports the intent of Bill C-217”. She goes on to say, "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”, there should be appropriate punishments. She would like to see a mandated dialogue with veterans as a restorative justice measure.
There is nothing in this bill to my mind that prevents that. Those are the kinds of restorative steps that judges make decisions on all the time. There is nothing in this bill that precludes that kind of dialogue.
I also listened to our veteran witnesses here last week, some of whom are definitely getting up in years. One of their comments was that their members are aging and they don't have the time to babysit people who would do things like this. They welcome a dialogue. They would welcome them coming into the Legion and learning about them, but they also need public sanctions against this kind of behaviour. They're getting older and they don't have the energy or the time or the ability to try to change the mindset of young Canadians.
I think that's where my colleague's comments on education are very important. From what I hear, I think it varies across Canada. I believe in Ontario, for example, and particularly southern Ontario, there is a lot more education about our veterans than in my province of British Columbia, where it's not as much a part of the regular curriculum.
I know we've also talked about religious monuments and things like that. To my mind that may be something we should deal with, and it may be something we should deal with soon. Perhaps a bill will come forward on that issue, either as a private member's bill or through government, but we're not being asked to address that today.
When I hear about swastikas painted on cenotaphs still being visible on Remembrance Day in Woodstock, that doesn't seem to me to be a lesser offence than a swastika painted on a synagogue. It is equally offensive, and it's something we should condemn as a society.
If a bill like that came forward, I would be first in line to say I want to do something about this. What I really think is happening here is a difference in philosophy, and the philosophy of the opposition is that there really should be no mandatory minimum penalties in our Criminal Code. You've signalled that and you've been up front about it, and I respect that. That is your point of view. From our point of view, we think that in some situations there should be and can be, and that it is up to legislators to give parameters, both at the minimum end and the maximum end, to our judiciary, who then use their discretion within those parameters.
For all those reasons, I will be voting against the amendment.
Jack Harris NDP St. John's East, NL
Thank you. I would like to address some of the comments opposite.
Yes, I agree that Professor Kaiser did have intelligent and thoughtful comments. I'm a little surprised, though, that the main point, according to Mr. Woodworth, would be denunciation.
There is room for denunciation in sentencing in general, particularly in appropriate cases. Judges are certainly aware of that. The main motivator of sentencing in general, however, is the protection of the public and how that is best achieved by our criminal justice system. I just want to make sure people understand that when we are looking at the comparison between the new provision we're talking about in Bill C-217—a provision for a specific crime of mischief in relation to war memorials or cenotaphs—we see that a particular crime against religious objects such as synagogues and mosques and churches must be in fact motivated by hatred or prejudice. Therefore, a swastika on a synagogue would be prosecuted more severely because it is motivated by hatred, hatred of a particular group of people.
I don't need to remind anybody that the Second World War was fought against an enemy that carried out the mass slaughter of Jewish people throughout Europe, so when we talk about a swastika on a synagogue or a Jewish cemetery, we're talking about someone inciting that kind of hatred.
When we talk about desecration of a war memorial, we may be talking about something inane, idiotic, stupid, misunderstood, or whatever, and if we're talking about denunciation, yes, in appropriate cases there is a proper case for denunciation. Sentences should be appropriate, and the judge would be in a position to do that.
I do want to remind you of the testimony of Terence Whitty, who plays a significant role in the organization of the cadet program in Canada. He talked about the lack of knowledge of our history that young people have in the cadet corps, a place where you would expect there would be a different level of understanding. It's one thing to say that we need to denounce behaviour of this nature, some of which is just based on ignorance, but you can't punish people for not understanding and appreciating their history. That's not a proper subject of criminal sanction, criminal punishment, but in some instances that is exactly what we're talking about.
A first cousin of my father's was in World War I. It makes him my first cousin once removed. He lies in a field in Beaumont-Hamel in France. I visited his grave, but none of us have any special claim to having people who lost their lives and made sacrifices in war.
I understand fully how important it is to memorialize these people. We have what we call in Newfoundland and Labrador a national war memorial on Duckworth Street—it used to be in my riding, but it's slightly off there now—that is called a “national war memorial” because we were then a nation, and small though we were, we made a significant sacrifice in World War I. The memory of that is very dear to me and very dear to people in Newfoundland and Labrador, but we do recognize that there needs to be some flexibility in how you deal with an offence involving damage to a cenotaph or war memorial.
I suppose you could pick and choose from Patricia Varga's letter if you wish, but I will read this paragraph in its entirety because I think we need to get the flavour of this. When Patricia Varga wrote, she couldn't come as a witness, but she offered her views and took the opportunity to comment on the text.
Obviously they strongly support the intent to include instances of mischief against a war memorial or cenotaph or any object associated with honouring or remembering these Canadian men and women who paid the supreme sacrifice in the service of Canada during war and on subsequent operations.
She did say that the membership “...is strongly in favour of recognizing the serious nature of these incidents and in consideration of the feelings and the emotions expressed by all Canadians against such acts.”
She goes on to say in the same paragraph: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.
We need to encourage greater understanding, greater appreciation. We understand that some of the people who testified before us, who were themselves veterans, are getting older and may not be the ones to do it, but the Canadian Legion is going to go on, and the memory is going to go on, and it's up to us as parliamentarians and members of society. In fact, in the last number of years we have seen a growing interest and concern and participation in remembrance services. All members of Parliament have acknowledged that and have commented on it in their own ridings. We see it in small towns and we see it in large places, and that education is growing.
I suspect that you're going to see, as a result, a significant decrease in incidents of this nature, and I don't think we need to put denunciation at the top of the list of the sentencing provisions as the primary motivation for this legislation.
I strongly support the approach suggested by the Royal Canadian Legion. Putting the Bill C-217 portion that sets aside a separate provision recognizing the seriousness into the Criminal Code acts in itself as a denunciatory act and, in the appropriate circumstances and when denunciation is the top-of-mind response, we would want to see our judges use that as a means of determining an appropriate sentence.
However, the sentence must fit the crime. Everybody should agree with that as a general principle, and it is not for Parliament to set down what the specific sentence should be in every particular offence when we have highly educated, highly trained, highly experienced, and intelligent judges who are in place to do that for us. We as parliamentarians ought to provide the legislative framework and let the judges do their work.
Those are my comments, Mr. Chairman, in response to some of the comments opposite.
Conservative
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you, Mr. Chair.
I sometimes wonder what hell would be like. My birthday is on February 3, so when I grew up I always had this nightmare of never seeing my birthday on Groundhog Day after Bill Murray's movie. I wonder if we're not somewhat like that today.
I've heard all the arguments; I've heard them now three or four times. Nobody even knows how we're going to vote. We've had a couple of days to think about how we're going to vote and a couple of days to be told what we're going to vote, so let's get on with the vote.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Thank you, Mr. Chair.
As Ms. Findlay and others might note, I do oppose mandatory minimums, although that's not my reason at this point for supporting the amendment. Even on the matter of mandatory minimums, I don't always go in lockstep. There may be exceptions even there that I might relate to.
There are a number of considerations here that prompt me to support the amendment. Reference has been made by Mr. Woodworth to denunciation; I think it is an important principle, but I believe denunciation resides in the very adoption of Bill C-217 to begin with. Clearly, this offence could be prosecuted and has been prosecuted under other approaches to the law of mischief, whether it be cultural property or religious property, so the offence could otherwise be prosecuted. You don't need this law to prosecute this particular offence. It is the very importance of denunciation so as to have specificity with regard to this offence that we have the offence set forth to begin with, and I support that.
On the amendment and why I support it, I think it would maintain consistency in the application of the law with respect to offences of this kind. Otherwise, we are distinguishing inappropriately with respect to both the generic nature of the commission of this offence and the victims involved. As I believe it has been said by Mr. Harris, a third approach—one that it is anchored in the principle of restorative justice—is particularly appropriate with regard to the amendment here. Finally, it will avoid the plea bargain situation in which denunciation, if not deterrence, may not be fulfilled precisely because as a result of the plea bargain; you will not even secure the very objectives of Bill C-217 to begin with.
For those considerations, I will support the amendment.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
(Subamendment negatived)
Next is amendment NDP-2. We will have a recorded vote.
(Amendment negatived: nays 6; yeas 5)
Next is NDP-3.
NDP
Jack Harris NDP St. John's East, NL
We have another amendment amending clause 1. I move to add, after line 6 on page 2:
(4.12) A court imposing a punishment under subsection (4.11) may, in exceptional circumstances, impose a punishment that is less than the minimum punishment provided for in that subsection.
I don't think I need to say very much in addition to the amendment itself. It's pretty clear what's implied in that, and I don't intend to repeat the arguments made before.