Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2, Evidence - February 13, 2014
OTTAWA, Thursday, February 13, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials), met this day at 10:31 a.m. to give consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning, and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Senate Standing Committee on Legal and Constitutional Affairs. My name is George Baker, and I am the deputy chair of this committee, sitting in for our chair, Senator Bob Runciman.
We are meeting today to consider our examination of Bill C-217, An Act to amend the Criminal Code, mischief relating to war memorials. If passed, Bill C-217 aims to provide for the offence of committing mischief in relation to a war memorial or cenotaph.
The bill was first introduced in the House of Commons last session on June 15, 2011, but did not pass before prorogation. The bill was reinstated with the start of the current parliamentary session and was referred to this committee on February 4, 2014. This is our second meeting on Bill C-217.
As a reminder to those watching, these committee hearings are open to the public and are available via webcast on the sen.parl.gc.ca website. You can find more information about the schedule of witnesses on the website under "Senate Committees."
For our first panel today please welcome, from the Royal Canadian Legion, the Dominion President, Mr. Gordon Moore; and the Director of National Ceremonies, Steven Clark. From the Commonwealth War Graves Commission, we have with us retired Brigadier-General David Kettle, Secretary General for the Canadian Agency.
We will begin this morning's proceedings with an opening statement from Mr. Moore.
Gordon Moore, Dominion President, Royal Canadian Legion: Honourable chairman, members of the committee, thank you for the invitation for the Royal Canadian Legion to appear before you to speak on Bill C-217, An Act to amend the Criminal Code, mischief relating to war memorials.
As the guardians of remembrance in Canada, the Royal Canadian Legion works to keep alive the memory of the 117,000 Canadians who have fallen in the military service of Canada. In every community across Canada, in numerous ceremonies at war memorials or cenotaphs, thousands of legionnaires and citizens commemorate on Remembrance Day and at other times of the year on special anniversaries and events.
Commemoration is appreciation of the past and the understanding of how past actions and wars, missions, conflicts and peacetime will impact future generations. We will recall our moments of triumph and tragedy, of excitement and despair.
It is this understanding and appreciation that enables us to remember and honour our veterans and to never forget the deeds of the fallen and to perpetuate remembrance into the future. It is for this reason that the Royal Canadian Legion supports the principle of Bill C-217.
Throughout our history, the Legion has maintained a leading role in the creation and care of memorials to the contributions and valour of our veterans. Working in concert with other veterans' organizations and the Canadian government, the Legion has vowed to ensure that the preservation of memories of our fallen heroes is maintained.
These and other commemorative projects and activities led by the Royal Canadian Legion have been welcomed by Canadians who have never hesitated to demonstrate their support in acknowledging the debt that is owed to those who sacrificed so much. We repay this debt in our remembrance.
We believe that the memorials and observances at cenotaphs are an important facet of any commemorative program. They convey a sense of national unity, a manner of recognizing loss and they stand as a visual pledge to never forget. They enable Canadians in every community to share a common history of sacrifice and commitment.
Citizens across the country are fiercely protective of their monuments and cenotaphs, and any act of desecration is greeted with indignation and outrage in these communities. We believe it is necessary that those who commit such acts deserve to be held accountable for their actions and that the intentions of Bill C-217 are to provide this accountability.
We have concerns, however, about the lack of alternative forms of punishment in Bill C-217. We are of the opinion that there should be consideration for alternatives according to the severity and circumstances of each incident. As an example, consider the option of community service for and with veterans for those committing these offences.
In particular, if the offenders are our youth, we feel that youth who are involved in such transgressions may better understand the seriousness of the offence if they were required to work in assisting veterans in their own communities. They would gain a greater appreciation of the sacrifices that were made by these veterans and of the fallen. This alternative may have a lasting and positive effect on those committing the offence. A fine or imprisonment would not necessarily have the same impact and could be unduly punitive in some situations.
The youth of Canada are important to the Legion and we continue to focus on educating young people on why we remember these sacrifices. This is paramount as we strive to raise awareness among all Canadians and future generations. The Legion has always viewed its youth education programs and youth sports to be an integral part of its mission.
For over 50 years, the Legion has conducted an important remembrance program aimed toward youth — poster, essay and poetry contests. Students from kindergarten to grade 12 are asked to show what remembrance means to them through their artistic and literary compositions. This has been a tremendously successful program with over 100,000 students participating annually and fulfills a critically important part of the Legion's mission statement: to promote remembrance and to ensure that our youth understand the sacrifices that were made in defence of our freedoms.
We also have our senior contest winners participate in the national Remembrance Day ceremony by placing a wreath on behalf of the youth of Canada. The involvement of our cadet leagues in our youth programs is also invaluable in perpetuating and commemorating remembrance.
The aim of Bill C-217 is worthy, but it should be amended to provide an option for alternative forms of punishment and accountability for these offences. Our youth are our future. It's essential that they appreciate the seriousness of their actions and understand the sacrifices of our veterans. Alternative options, such as working with veterans through community service, would provide for this understanding.
I would like to thank you for this opportunity to address the committee, and we are prepared to respond to your questions.
We will remember them.
The Deputy Chair: Thank you, Mr. Moore. That, as I understand it, is the presentation from the Royal Canadian Legion.
We now have a presentation on behalf of the Commonwealth War Graves Commission. Mr. Kettle.
Brigadier-General (Ret'd) David Kettle, Secretary General, Canadian Agency, Commonwealth War Graves Commission: Honourable senators, ladies and gentlemen, I will be sticking to my notes today because, as a retired Presbyterian minister, it generally takes me half an hour to clear my throat.
My name is David Kettle and I'm the Secretary General of the Commonwealth War Graves Commission, Canadian Agency, based here in Ottawa.
The commission was established by Royal Charter on May 21, 1917, as the Imperial War Graves Commission. It was renamed the Commonwealth War Graves Commission in 1960.
The commission is an international organization funded by its six member governments: Australia, Canada, India, New Zealand, South Africa and the United Kingdom. Newfoundland was a charter member until their confederation in 1949.
Our principle mandate is to commemorate those who died during the First and Second World Wars of causes attributable to service. We care for the graves and memorials of almost 1.7 million Commonwealth servicemen and servicewomen located in over 150 countries throughout the world.
The commission executes its worldwide mandate from its head office located in Maidenhead in the U.K. and its network of eight regional offices and agencies. Costs are met by member governments in proportion to the number of their war graves, and a funding formula, which interestingly enough was proposed by Canadian Prime Minister Sir Robert Borden, remains intact to this day.
The United Kingdom is the largest contributor at approximately 78 per cent, with Canada second at 10 per cent. The overall commission budget is C$120 million Canadian, with Canada's contribution for 2014-15 at C$11 million.
The Canadian agency of the commission was established in April of 1921 by the then-Imperial War Graves Commission to commemorate the men and women who died during the designated war years and who were buried in North America and Siberia.
War dead in the Americas did not die on the battlefield; rather, they would have been killed in training accidents, died of disease such as the Spanish influenza or from wounds received in battle, but after they had returned home, bearing in mind that they would have had to die during the designated war years. The difference, of course, is war dead did not get the opportunity to become veterans; veterans survived the war.
Today, the Canadian agency is specifically responsible for fulfilling its charter tasks in the Americas, including the Caribbean. This is an area about the size of Asia. It includes the care of 20,400 war dead commemorated in 3,400 cemeteries on 10 memorials.
Here in Canada, we are responsible for the war graves of over 14,000 individuals in almost 3,000 cemeteries, as well as over 4,000 people commemorated on memorials because they have no known grave or whose graves have become unmaintainable for whatever reason.
The Canadian Agency's objectives are to evaluate the structural state of headstones and memorials and their cleanliness with resultant maintenance work contracted to private contractors. The agency is also improving war grave plots, where conditions permit, in a manner similar to the commission's cemeteries overseas. Brookside Cemetery in Winnipeg is an example.
The Canadian Agency also accepts contractual work outside its charter tasks on behalf of Veterans Affairs Canada. This involves some 250,000 veterans' graves. We are involved in a program to catalogue and maintain all headstones of veterans buried in Canada at the expense of Canada.
From the commission's perspective, as an international organization, we must be careful not to be seen to interfere with what could be considered a national business or a national interest of our six member states. In other words, we have confidence in the Commonwealth democratic process.
My role here today is to provide the facts as regards to Commonwealth war graves and memorials, and to a certain extent, veterans' graves, and not offer opinions on the merits of national legislation. I would nevertheless want to highlight the difficulties the commission faces globally with respect to vandalism. In fact, Mr. Chairman, I have some pictures that I would like to pass around, if that's all right with you.
For example, attacks on our sites are something we deal with as a matter of course, although by and large, they are sporadic and infrequent. Where there is excessive damage to our sites in war zones or unstable security environments, we work with the host nations to resolve its difficulties.
I have on hand here my weekly security brief outlining the countries where vandalism is a problem, and North and South America are never on this list. This, in fact, is my entire file on vandalism. As you can see, it's not a Toronto phone book.
Any legislative position designed to protect graves and memorials, including those for which we are responsible, is welcome. The commission would not actively campaign to put such measures in place. There have, however, been occasions where courts have ordered offenders to pay compensation to the commission for the cost of cleaning up or repairing any damage. This has actually happened in the U.K., France and elsewhere. But to be clear, it is not our place to influence potential national court decisions. Where courts decide in our favour, we are pleased. Where they do not, we soldier on, unperturbed, in a most dignified fashion.
This concludes my brief opening remarks, which I trust will be useful to you. On behalf of the commission, we are pleased to be invited to contribute in such a discussion and in front such an august group.
The Deputy Chair: Thank you, Mr. Kettle.
We will go questions, first from the permanent chair of the committee, Senator Runciman.
Senator Runciman: I'm not quite sure it's permanent, Mr. Chair, but that you for that endorsement.
And thank you, gentlemen, for being here.
I have to say that I am somewhat surprised by the Legion's perspective on this. I have a copy of a letter sent to Jack Harris, who is a member of Parliament. This was from your predecessor, I gather, Patricia Varga. In the third paragraph it says, "Our membership is strongly in favour of recognizing the serious nature" and "we do, however, feel," et cetera, expressing some concern about appropriate penalties.
I should point out that I have been a regular member of the Legion for about 30 years. How does the Legion come to a conclusion like this? When you reference "our membership," I don't recall being polled in this. I know I have talked to a number of members of my own branch, Legion 96, and they're very supportive of what Mr. Tilson is attempting to do with this legislation.
I'm curious, what's the process that the Legion undertakes to take a position like this representing its total membership?
Mr. Moore: We have discussed this with our command presidents. They have supported my stance on this particular issue.
When you have a minor who is 14 or 15 years old who damages a cenotaph or a tombstone, because the young individual was involved with another group of kids that really didn't know what they were doing — they didn't understand the consequences after the fact — we feel that for those young individuals to end up with a criminal record as a result of not thinking and stupidity, we should be able to educate them instead of either sending them to a youth centre or whatever decision the judge would come down with. In most cases, and what we have seen over the years, judges across the country have just basically slapped them on the fingers.
But when you have an adult who is over 19 years of age turn around and do the exact same thing and they use the excuse that alcohol was involved, I don't accept that. I believe that that individual as an adult should have the common sense to be able to respect that cenotaph or memorial. If they don't have that common sense, then the full rights of the law should come down on them. But for our youth, I believe we should be educating them in a more positive manner.
Senator Runciman: Speaking on behalf of the Legion, you have no problem with this legislation impacting adults?
Mr. Moore: Not at all. I just want another alternative put there for our youth.
Senator Runciman: As I understand it — and we will get further clarification — this does not apply to youth. That would fall under the Youth Criminal Justice Act. I think that addresses the concern that the Legion is expressing here today.
In terms of community service, there are alternatives. I'm sure you are aware the judge can impose those alternative services following application of the fine, for example.
There are other avenues under section 717 of the Criminal Code in terms of alternative measures that the Crown can pursue as well. It is not cut and dried even for the adults. They can assess the gravity of the situation, the circumstances surrounding it, and there are alternatives available. I just wanted to give you that comfort level.
Of course when we're talking about mandatory minimums, we're talking about a second offence. I don't think that you or too many members of the branches that I'm familiar with — or broadly in the community — would have a lot of sympathy for someone committing a second offence in terms of damaging a memorial to people who sacrifice their lives for the country we're living in today. Would you share that view?
Mr. Moore: I support that view.
Senator Joyal: I would like first to welcome you and thank you for your contribution.
My first question will be to Mr. Moore. In your activities, how much emphasis did you put into your education program with the youth? Because as I understand it, this phenomenon of vandalism of war memorials covers a lot of youngsters who are not, of course, aware of the importance or the sacrifice or even the importance of the Canadian contribution to the war.
What is the importance you put on education of the youth and how are you twinned with the education system to be sure that you spread the awareness of the importance of maintaining war memorials and the memory of sacrifice?
Mr. Moore: We do that through the programs with the Royal Canadian Legion, getting to our youth through the schools. Our veterans are asked to go and speak to the schools during the remembrance period and through other times of the year. We are able to get our message out through the kids who are sitting there willing to listen on the education side of why the memorials are so important and why it is so important to respect those monuments.
Senator Joyal: According to the statistics or the figures that we saw yesterday, it seems that there are periods of the year when people seem to be more inclined to do that mischief. Could you explain to us how that happens?
Mr. Moore: Why they would do this?
Senator Joyal: Yes. What triggers that kind of reaction among people during certain periods of the year? The week of remembrance seems to be the period of the year where people are aware that they have to do something, the vandalism that we want to repress, generally, among the people.
Steven Clark, Director of National Ceremonies, Royal Canadian Legion: I can't speak for the mind of someone committing such an offence, but there's always the heightened awareness around memorials and remembrance during the remembrance period. If the intent of the person perpetrating this offence is publicity, then that is the time they would get the maximum publicity.
It is something that shouldn't happen at any time, but if, in fact, it is more predominant around the remembrance time that would potentially be a reason why. You are going to get the media focus and focus across the country from different communities.
Brig.-Gen. Kettle: The remembrance week is around Halloween as well, so that tends to be a period where we sometimes see vandalism perpetrated because people get carried away with that event.
Senator Joyal: Mr. Kettle, thank you for the figures. We were wrestling with that yesterday. You are responsible for almost 3,000 cemeteries in Canada, as I understand?
Brig.-Gen. Kettle: We have war dead in those cemeteries; we're not responsible for the cemeteries. In the Americas, there's only one Commonwealth war grave cemetery that we care for. The rest are in public and private cemeteries, and we care for them in situ.
Senator Joyal: I understand that you are also aware of your activities in France and in Britain. Is this phenomenon more acute in Canada than in France and in Britain where there are also war graves?
Brig.-Gen. Kettle: No. We tend to get the most vandalism in unstable states where the security situation is such that they may centre out Commonwealth war graves as a sign of imperialism, or something like that, and consequently vandalize our graves there. It is really sporadic in France, in continental Europe and in the U.K., but Egypt, Libya, Syria, Israel, the Gaza, Lebanon, Algeria, Yemen, Sudan and Tunisia is where it is more prevalent.
Senator Joyal: One would understand there is political turmoil, instability of populations and regional conflict pitting peoples against one another.
Is it right that in France and the U.K. there's no specific legislation addressing the issue we are dealing with today?
Brig.-Gen. Kettle: I'm not an expert in that area. The courts handle this, but not with specific legislation.
Senator Joyal: Even though there are larger quantities of cemeteries and war memorials in those two countries — for obvious reasons — than there are in Canada?
Brig.-Gen. Kettle: Right. The critical point is I'm not an expert in that area.
Senator Joyal: You were waving a file as you said it.
Brig.-Gen. Kettle: I'm a Presbyterian; I like to wave things. I can pass this thing I was waving around. It is actually a shopping list.
Senator Joyal: If you have any figures that could help us understand the amplitude of the phenomenon by the number of recurrences of that kind of activity, it would be helpful to us.
Brig.-Gen. Kettle: I certainly could look into it by contacting our head office, but I do not have those figures available to me at present.
Senator Joyal: Could you provide them to us?
Brig.-Gen. Kettle: I will certainly approach my head office and see what I can come up with, sir.
The Deputy Chair: Before going on to the next witness, I'm going back to what Mr. Moore said at the beginning of his presentation. He used the example of a 15-year-old. I think what he was referring to when he said "could be unduly punitive in certain circumstances" is that we all realize that section 64(1) of the Youth Criminal Justice Act allows the Attorney General to prosecute on the basis of an adult sentence. The question arises — we will investigate this with the lawyers coming up shortly — as to what happens if the 15-year-old, in fact, cannot pay the $1,000 fine. So on the face of it, your statement is correct in my opinion.
We will call on the police representative on this committee, a famous man, Senator Dagenais.
[Translation]
Senator Dagenais: I understand that war memorials are a special symbol, and you did a very good job of explaining that. I think that people who vandalize war memorials know perfectly well what they are doing. They can differentiate between a war memorial and an ordinary monument. I think their actions indicate a lack of respect. We are talking about the bill, and about rehabilitating and educating teenagers who do not understand the implications. If a 17 year old needs to be educated, they are a little behind. I think they should be able to understand the difference between right and wrong.
The U.S. has a federal piece of legislation that punishes those types of transgressions. Europe does not have any such laws.
That being said, before applying a piece of legislation and punishing people, could we not think about taking measures to protect war memorials, such as getting the local police involved and asking for increased surveillance? I do not think the bill is that tough, but I may be influenced by my police officer past, as I arrested many young people who did not understand the implications of their actions. I know the Legion provides some services, but was prevention considered in this file?
[English]
Brig.-Gen. Kettle: As I stated before, we are an international organization, and we have faith in the democratic process to come up with the right measures, given the issue at hand.
Mr. Clark: If I might add to that as well, we have taken measures. We had an unfortunate incident at our own dominion headquarters a couple of years back, where we had a memorial to the fallen that was, unfortunately, vandalized. It was in a location that was not well lit. We took steps, after that incident happened, to make sure that that was no longer a factor. It is well lit. It is no longer in an area where it would be hidden, so if someone was purposely vandalizing that particular monument, it would be very visible to those passing by.
We recognized that that was an issue. It was a measure that we could take to prevent this from happening in the future, and that was a step that we did take.
[Translation]
Senator Rivest: Mr. Moore, I just want to say that I share your opinion on community service sentences for young people who commit mischief owing to their age and not out of sheer malice.
Two or three years ago, I visited a cemetery in Normandy with a parliamentary delegation. As in many western countries — including Canada, I assume, and you can tell me what you think about that — we have seen an emergence of far-right fascist and Nazi groups, which are vandalizing veterans' memorials for known reasons. The day before my Normandy visit, the memorials of all the soldiers with Jewish-sounding names were vandalized.
Should not the bill we are about to pass — whose principle seems to have everyone's support — include heinous crimes, which are covered by the Criminal Code, when those crimes really involve far-right Nazi or fascist groups?
[English]
Mr. Clark: I would tend to agree that if in fact it was something that was perpetrated because it was one ethnic group against another one, there would be other penalties or bills that should be looked at that would actually address that particular offence. That intent goes beyond simply wilfully damaging a memorial. It's wilfully damaging a memorial to a certain sector of society. I think that's something that goes beyond what this is addressing.
Senator McIntyre: Gentlemen, thank you for your presentations. As you know, we have Bill C-217, and we have alternative forms of punishment.
I understand, Mr. Moore and Mr. Clark, that you support the idea of alternative forms of punishment. Do Legions across the country generally share your views regarding alternative forms of punishment as opposed to the form of punishment set out in Bill C-217?
Mr. Moore: The majority of the branches do support how we stand on the alternatives. II will give you a good example from my local branch.
About 10 years ago, we had our cenotaph damaged severely. On the soldier at the top of the monument, both arms and the rifle were completely shattered. We put up a reward of $10,000 to find the culprits. It went for about three and a half, four years. The three young lads that were involved were, at the time, 10 and 12 years of age. As Brig-Gen. Kettle mentioned earlier, it happened on Halloween. They finally came forward and admitted to the crime.
The branch president at the time went to court, along with the family, and asked the judge to allow the families to pay toward the cost of repairing the cenotaph and also to allow the three youth to be involved with our local branch on different items going on throughout the year. It did work.
Of course, the message did get to the rest of the students at that particular school and to the high school that, when you do something like this, you could pay the price and could end up with a criminal record and with a whole lot of other things. The bottom line was that we were able to support the family and the three kids to make sure that they were educated.
Senator McIntyre: Brig.-Gen. Kettle, I understand that it is not your intention to offer an opinion on the current legislation. However, have you had an opportunity to review or read Bill C-217?
Brig.-Gen. Kettle: Yes, I have.
Senator McIntyre: And you don't wish to make any comments on it?
Brig.-Gen. Kettle: Not as far as your question goes.
What I don't want the committee to go away with is that, in the Americas, prejudice plays a significant role in the desecration of war graves. It is mostly misguided children, people under the influence, and so on.
I showed you some pictures. It is much more newsworthy to have something like this on the front page than it is for a knocked over veteran's grave or war grave. I think perspective and context is important to bear in mind.
Senator McIntyre: Would you favour alternative forms of punishment as opposed to the type of punishment set out in Bill C-217, which calls for a mandatory minimum fine in the case of a first offender and a mandatory jail term in the case of repeat offenders?
Brig.-Gen. Kettle: If you asked me outside this forum, I'd have an opinion. In this forum, I don't.
Senator Plett: Welcome, gentlemen.
Mr. Moore, it's nice to see you again. We met many times when I was on the Subcommittee on Veterans Affairs, and it is a pleasure.
At this point, I think you've answered the questions I had as well. I do want to make a comment in reference to something the chair pointed out. With the utmost respect, I am not a lawyer as he is.
I find it a bit of a stretch for somebody to think that a 15-year-old will be elevated to adult court on a charge of mischief. I think that may happen on a charge of murder or something a little more serious. I doubt that even he could find many cases where a 14- or 15-year-old had been elevated to adult court in this particular case. Maybe we can discuss that at some point.
I want to simply assure myself of the fact that the only issue, Mr. Moore — and I think you said this — is that if these would be kids or youth. I will go one step further to say I've looked at these pictures. I find some of them tremendously offensive when you see swastikas painted on some of these memorials. I assume you would agree that someone in a drunken stupor urinating on something could be spur of the moment. Even breaking something could be spur of the moment. But to spray paint something, that's fairly deliberate. Somebody has to go to the hardware store and buy a can of paint and go out there to do this. It would take some thought and a little more effort to do it.
I know Mr. Kettle is hesitant to offer an opinion, and I encourage him to offer an opinion on what he believes would be a suitable penalty for this. Mr. Moore, I think you've stated, and maybe you want to reaffirm it for my benefit, that you would support, in a case like that, if that was a 20- or 25-year-old, sober individual who had done that, that you would not be opposed to a mandatory minimum sentence, especially on a repeat offence.
Mr. Moore: I would definitely not oppose that. Looking at these pictures, I was very offended as well. When something that serious happens, then that individual should pay the full price of the law. I agree 100 per cent with you on that.
Again, if a youth makes a mistake by knocking over a cenotaph or knocking over a tombstone or doing something as stupid as urinating on a cenotaph, if I were a judge, one of the best things I could think of would be to ask that young individual to stand in front of the cenotaph every Friday for a month with a big sign stating, "I'm the one who urinated on the cenotaph," and have the general public criticize him for what he has done. That would make sure that the young individual really learned his lesson. Then again, I'm not a judge.
Senator Plett: Thank you very much for that. Senator Runciman asked a witness yesterday whether she believed shaming might be a good answer. I think you would support that and so would I.
Mr. Kettle, would you like to offer an opinion?
Brig.-Gen. Kettle: What you have to understand is that you can punish stupidity. You can punish immaturity. You can punish irregular thinking. But why do people do things like this? They want attention. The more attention they get, the happier they are. So one of the platforms will be when they're being prosecuted for stuff like that. You're not going to prevent this from taking place through legislation or by punishment. That's my opinion.
Senator Plett: Surely you aren't suggesting, Mr. Kettle, that someone does that with the idea of, "I want to go in front of a judge and pay $1,000," or "I want to go in front of a judge and spend 30 days in jail." I agree with you that they want attention, but surely to goodness you're not suggesting that they want attention so badly that they want to go to jail for it.
Brig.-Gen. Kettle: When they do this, maybe.
Senator Batters: Mr. Kettle, I would contend that they probably don't want attention in a public forum, they probably want attention anonymously, where no one will know who has done that, but they've made their ridiculous racist statement. I don't think they intend, when they do that, to be in front of a court and suffer public consequences.
I want to thank all of you today for coming here and to thank you very much for your work on behalf of Canada's veterans. I think when I was in grade 5 I was a local winner of one of your poetry contests in Regina, where I'm from. I didn't make it to the national level and get the honour of laying a wreath or anything like that, but your work does good things for Canada's youth.
I am wondering if you are at all concerned about the severity of the fine in this case. A number of provinces in Canada have "fine option" programs that allow people to do community service. If they are unable to pay a significant fine they might be able to do that. Are you aware of that?
Mr. Moore: I'm not aware of the different laws across each province and how they handle that. If they have that in place, that's a good thing. I believe Bill C-217 will definitely emphasize that more strongly across the country.
Senator Batters: Great, thank you very much. I appreciate your coming here today.
Senator Day: Gentlemen, thank you for being here. I am a bit of an interloper on this committee, but I've had a chance to read the proposed legislation and to hear second reading debate.
I want to start with a point of clarification, Mr. Kettle. You talked about the Canadian Agency and those who might have died not on the battlefield but as a result of war injuries during the designated time. I am assuming now that the Canadian Agency is looking after all of the Americas in relation to that restricted group plus others that might have died in the battlefield. Of course there aren't any battlefields that you're keeping an eye on in the Americas.
Brig.-Gen. Kettle: We care for war dead from the First and Second World Wars who died during those designated war years across North and South America.
In our agency work we also take care of veterans' war graves, about 50 per cent of them, here in Canada.
Senator Day: Does the Commonwealth battlefields funding — and you indicated that the federal government gives its 10 per cent share — go to the U.K. and then it is fed down to the agency?
Brig.-Gen. Kettle: Yes.
Senator Day: Do you also receive direct funding from Veterans Affairs for the work you do there?
Brig.-Gen. Kettle: It's "yes" and "yes." The funding goes to the U.K. and I am given a certain portion of that money to care for Commonwealth war graves in North and South America. The rest goes to caring for Canadian Commonwealth war graves throughout the world.
Veterans Affairs Canada pays me a certain amount of money to care for veterans' war graves here in Canada.
Senator Day: You've made available to us the security briefing that you get on a weekly basis. Are you aware of any attempt at legislation, in any of the other Commonwealth countries, similar to the initiative we see here in Bill C-217?
Brig.-Gen. Kettle: I am unaware of it but, along with gathering the information I was asked for, I will ask head office about that as well and report back to the committee.
Senator Day: Thank you.
From the file that you held up of the very small number of vandalism activities, and your reluctance to participate in an opinion on this, I'm reading into that that you don't see a need for this legislation.
Brig.-Gen. Kettle: No, I wouldn't read that into it at all.
Senator Day: Well, here is your opportunity.
Brig.-Gen. Kettle: You should read it that I am an international organization and therefore I am restricted in my opinions. You don't want Dave Kettle's opinion; you already had one and you don't agree with it. As far as the commission is concerned, we stay out of politics.
Senator Day: Let me talk to Mr. Moore. It's good to see you, as well as Mr. Clark.
Senator Plett and I both serve on the Veterans Affairs Committee, and we know the great work that the Royal Canadian Legion does across the country. You have certainly developed good credentials to speak for the youth of Canada.
I was fortunate enough — and Mr. Clark will know about this — to have attended an athletic leadership camp when I was a youth of 18 years of age at the University of New Brunswick, which was sponsored by the Royal Canadian Legion. I participated in track and field. You have also been involved in curling. This is for youth between the ages of 18 and 23 years. I think your comments are well taken.
Have you thought about how this alternative type of punishment would be administered? With respect to someone who was to attend and do some work at a cenotaph, would the Royal Canadian Legion have the resources to make sure the work is actually done, or would you leave that to the Solicitor General and the Justice Department?
Mr. Moore: That would have to come from the direction of the judge at the time. If he stated that the youth would have to work on the National War Memorial, for example, then he would have to be supervised by one or two veterans or members of the Royal Canadian Legion, along with the people in charge of the National War Memorial so that they know for a fact that that youth is actually doing what he is supposed to be doing.
We do have resources across the country where if we are asked by a judge to do that, none of the local branches would hesitate to make sure that young individual would have to do what he has been told to do.
Senator Day: Thank you.
Senator Frum: Mr. Kettle, you made it very clear that you don't want to get dragged into politics, and I'm sorry that we keep trying, but I wanted to clarify one thing. You made it clear in your comments about swastikas on graves. I think I deduced from what you said that you don't think this bill will act as a deterrent because you think people who are motivated to do these things are going to do them for the reasons they are going to do them. However, when you have mandatory minimums, one aspect is the hope for deterrence and another is appropriate punishment. I take it while you think a deterrent aspect won't work, would you agree —
Brig.-Gen. Kettle: Only in extreme cases, yes.
Senator Frum: There is another element to this, which is ensuring there is an appropriate punishment.
Brig.-Gen. Kettle: Of course.
Senator Frum: I take it in that respect, you think the legislation is appropriate.
Brig.-Gen. Kettle: I'll meet you for coffee after and we can discuss it.
The Deputy Chair: Nice try.
Senator Frum: Would anyone else care to comment, Mr. Moore or Mr. Clark, in terms of the deterrent aspect versus ensuring that there is appropriate punishment?
I am inviting you to comment on this. I think you also indicated that you are not sure about the deterrent aspect of the mandatory minimums, whether or not we will see a deterrent effect from this. You don't have to comment if you don't want to.
Mr. Clark: If I may make a comment, it really depends upon the individual. I know we are doing a lot of talking about youth, but this is not solely focused on youth.
If we can talk about youth first, if you have a youth that damages a war memorial, it will be the parents of that youth that will be paying the fine, not the youth themselves. That youth will not learn anything. They will learn that someone else will look after them, and they will continue on.
However, if they are involved in an alternative form of punishment where they're actually educated and made aware, then I think that will have a much greater impact. I think a fine may have a deterrent effect in some cases, but there may be a stronger impact made by other forms of punishment.
Senator Frum: It's interesting that there is an assumption here, which perhaps is absolutely correct, that these particular types of crimes are committed by a certain cohort that is young.
Do you have any specific information or idea of that? Do you know, Mr. Kettle, in terms of those cases where there has been prosecution, is it strictly a juvenile crime? That's the way it's being portrayed, and I'm not sure, but I'm guessing those swastikas are not a juvenile crime.
Brig.-Gen. Kettle: No. There is a spectrum of ages that participate for a full spectrum of reasons, all of them irrational.
Mr. Clark: Unfortunately, stupidity is not limited to a certain age category. There are those who are not governed by the Young Offenders Act who would perpetrate these acts. They are still capable of doing stupid things, and they still need to take responsibility for the actions they have taken. Although we have talked a lot about youth, it's not solely youth that could in fact be covered by the discussion today.
Senator Runciman: I have a quick comment to the president. Something that the Legion might want to consider in dealing with issues of national importance, modern technology and virtually everyone having an email address would provide the opportunity for members to give their views to the local branch prior to submitting to Command. That way, everyone will have an opportunity to get their oar in the water, if you will.
I want to follow up on what Senator Joyal was talking about earlier regarding education, especially with World War II vets quickly disappearing. Has the Royal Canadian Legion taken a look across the country at the curriculum in various provinces and territories to see if there are opportunities there in terms of ensuring that future generations are aware of the sacrifices made on our behalf and what they mean to all of us?
In my own community in the last few years, I have seen a significant number of elementary kids participating in Armistice Day, but I think that is more on the part of the individual teacher, perhaps the individual board. I am not sure there is a real effort across the system on a provincial basis to make sure at the elementary level, and perhaps at the secondary level as well, that there is some opportunity to invite legionnaires. I know it happens in some cases, but as I understand, it is not part of a curriculum, at least not on a national, province-to-province basis.
Have you done any work on that? If you have not, is it something you might consider going forward?
Mr. Moore: We have looked at that right across the country. Here in the province of Ontario for example — from 2005 to 2007, I was provincial president for Ontario. We tried speaking to the Minister of Education at the time, along with our youth education chairman, to get him to bring into the school system the history of the First World War, Second World War and Korean War. He said that is left up to the individual school boards. Basically, it was a scapegoat.
We have been after that for a number of years, right across the country. The bottom line is the school boards set their itineraries for the following year before June 1 of the current year, at least here in Ontario. I'm not sure about the other provinces, but the curriculum will already be set this coming June for 2015.
Having said that, when you go to the school boards, they will say, "No, it's up to the individual principal of each school." You keep banging your head against the wall every time you try and talk to any of the educators, especially in Ontario, or whether you go to P.E.I. or Nova Scotia.
We try to do the best we can with what we have, and we do get the word out. The only time that I'm fully aware of when most schools across the country invite the Royal Canadian Legion in is during the remembrance period. That is when veterans get the opportunity to speak to the children not only in the schools, but they're also invited to the Girl Guides, the Scouts. I know that some of the other groups in my own community— for example, the Lions all across the board — invite veterans in to speak during that period as well to educate them.
Senator Runciman: Just some political advice: There's an election coming up in Ontario. You have branches across this province; you should be asking the parties to put it in their platforms. That's one way to approach it.
Brig.-Gen. Kettle: Bear in mind that we're in the 14 to 18 period where we're celebrating the hundredth anniversary of World War I and the seventy-fifth anniversary of World War II, a perfect opportunity to address youth in several forms.
The Legion, in another life when I was a chaplain, took large groups of youth over to Europe to take part in commemorative services. All of these youth came away with this wonderful epiphany of the proud heritage we have in Canada during two world wars, and that is what makes the difference.
When you make a convert out of a youth about how important these two periods were in Canadian history, and what a significant sacrifice we made as Canadians on the battlefields of Europe and elsewhere, that's the key to getting the word out to how important these war graves and veterans graves are.
Senator Joyal: On the same subject, for this year, which marks the hundredth anniversary of the First World War, did you plan any specific commemoration or initiative? The time gives you an opportunity to get public attention on it and push to open the minds of the new generation to it, especially with the First World War.
I'm involved in organizing a joint seminar between the parliamentarians of the French National Assembly, French senators, members of Parliament and senators of the Canadian Parliament. It will be taking place in the National Assembly in France and in the Senate chamber to review the perspective that we have on the First World War, on the military, the economic and social aspects of it.
I thought this was a pretty opportune moment to publish a book, put it online, because it will be broadcast on the net and so on. This is a special year.
Are you contributing to special initiatives to open Canadians' minds to the sacrifice and the meaning of that war?
Mr. Moore: Yes, we are. We're in the process of putting together what we think should be the program. We have also asked for input from the 10 provincial presidents across the country. They will be here next weekend for the Dominion Executive Council, and we will more than likely be spending two to three hours on this particular topic.
We have already designed a pin that's going to be presented to the DEC next weekend, and we also have staff preparing a public relations program the branches are able to use when they go to the media, whether it is newspaper, TV or radio, so that they're going to be prepared. We are also looking for suggestions from each individual branch across the country. Senator Runciman mentioned earlier that we have emails cross the country. Well, unfortunately not every branch in the Royal Canadian Legion has an email within that branch.
We have 1,468 branches and out of the 1,468, only about 730 that have the email at the branch itself. This is something we have been trying to focus on since I came into office in June 2012. The big thing here is to be able to educate and communicate from the branch level down to me, because in my view, all the youth, all of our branches across the country and our veteran population, they're here and I'm at the bottom. They talk to me.
Mr. Clark: If I may make a comment further to what President Moore has said, as the Legion, we will certainly recognize the centenary. We will not celebrate it.
Senator Joyal: Of course not. I didn't say celebration; I said commemoration.
Mr. Kettle, in terms of the War Graves Commission, is there a special initiative, activities, an emphasis on restoration of monuments or improvement of the maintenance of monuments this year?
Brig.-Gen. Kettle: In Canada, we work in conjunction with Veterans Affairs Canada, and the Canadian government has a program of commemoration during the 14 to 18 period. Overseas, the commission has a huge organization and there are many commemorative events that are planned for the 14 to 18 period, some is of which Canadians and the Legion will be taking part in.
We're a very small organization of nine in Ottawa. All of my people are fountains of information. They don't work for the commission to earn big dollars. They're there because they believe in commemoration and they're called to commemoration, and our speaking engagements are legion. We love to speak and to educate the public on the commission and also Canada's contributions in two world wars. We're always open to more invitations, and we just wish there were more of us to do that.
The Deputy Chair: Mr. Moore, Mr. Clark and Mr. Kettle, we want to thank you for their excellent presentations.
For our second panel today, I would like to introduce, representing the Criminal Lawyers' Association, Mr. Leo Russomanno; and representing the Canadian Council of Criminal Defence Lawyers, Mr. Graeme Hamilton.
Mr. Russomanno, we will start with your opening statement.
Leo Russomanno, Representative, Criminal Lawyers' Association: Yes, I'm in the leadoff spot.
I would like to thank you, Mr. Chair, and all of the members for inviting me today. I have been here several times before. It is always a delight to come here and dialogue with parliamentarians. A very important part of the process that practitioners and parliamentarians have is dialogue. To that end, I will extend the same invitation I do every time I come before this committee, and that is, if any of you would ever be interested in coming to the courthouse in Ottawa and seeing our criminal justice system in action, I would be happy to host any you. It is a serious and not just a token invitation. I work just down the street, so I would be happy to provide you with my contact information for that.
Today, obviously, we're talking about a very serious criminal offence, a particular form of mischief related to war memorials. I agree with everyone here, and I can safely represent all of the practitioners in the criminal justice system, whether it's Crown attorneys, judges or criminal defence lawyers, who would all agree that to deface, to desecrate a war memorial is a particularly heinous form of mischief and is simply not the same as, say, defacing a mailbox, as was referred to yesterday, which is a different kind of mischief.
That's really the starting point here. There's no one in the criminal justice system that actually believes that defacing a mailbox is the same thing as defacing a war memorial.
The problems I have on behalf of the Criminal Lawyers' Association with this particular legislation are threefold.
The first problem is that this is essentially a solution in search of a problem. The Criminal Code is already very well equipped to deal with such an aggravated form of mischief.
I would like to refer to section 718 of the Criminal Code, which talks about the principles and purposes of sentencing. There's the purpose of denunciation, which is to send a message on behalf of Canadians that a particular kind of conduct is deserving of an additional form of punishment or a more severe form of punishment. Denunciation is something that all sentencing judges are actually mandated to consider when they look at a particular criminal offence.
Section 718 of the code also mentions that the sentence should be proportionate to the gravity of the offence and the particular circumstances of the offender. This is the cardinal rule of sentencing, if you will: the gravity of the offence and the circumstances of the offender. So it's pretty obvious, and we can all agree, that in terms of desecrating a war memorial, this particular kind of mischief is a more grave and serious offence. Really, it relates to the sanctity of the property that we're talking about here. This is what I believe the proposed legislation gets at. With respect to the spirit behind this legislation, certainly nobody can quibble with the need to address the desecration of war memorials.
Another important thing is that section 718 of the code also talks about a specific requirement that a judge consider aggravating and mitigating factors. Parliament has already dictated under section 718.2(a)(i) that offences motivated by bias, racial hatred, religious hatred and gender hatred are a particularly aggravating feature to be specifically considered in sentencing.
The comment I heard earlier made by Senator Frum with respect to a desecration in the form of a swastika or other kinds of hate symbols, if you will, would be specifically considered under that section of the code. The sanctity of the property in question is a varying factor to be considered in sentencing.
To that end, I should really get to one of the main issues that I see with this legislation, and that is that there doesn't appear to be any evidence that the criminal justice system is getting it wrong. I listened intently to the presentations made yesterday and this morning, and there doesn't appear to be any evidence whatsoever that our sentencing judges are somehow not equipped or not properly dealing with the purposes of denunciation and are letting offenders off with a light touch, so to speak.
This is something that I think a close examination of this legislation really cries out for. What is the evidence that the criminal justice system is getting it wrong? We have all the tools in the Criminal Code that judges are mandated to look at, yet there doesn't appear to be evidence that I know of that speaks to an inadequacy on the part of the criminal justice system.
That leads to the second problem with this legislation, as I see it, and it is a slippery slope problem, whether we are to identify all other sacred forms of property that perhaps are deserving of a higher form of punishment. For example, someone in another presentation or during the debates mentioned the Terry Fox Memorial or the memorial on Gilmour Street here in Ottawa with respect to the victims of the École Polytechnique massacre, other kinds of memorials that have a sacred role in our society and whether or not we should begin designating all of these other memorials as deserving of extra punishment, or whether it is quite obviously, as I would submit, already an aggravating feature that is taken into consideration in the Criminal Code.
What happens when you get onto this slippery slope is that the Criminal Code will eventually, if not already, become unwieldy. It is already a pretty heavy book, and it's not simply for the sake of practical reasons that we don't want the Criminal Code to be more unwieldy, simply the fact that the more offences we set out in the Criminal Code, the more cumbersome it becomes. It also sends a message to the criminal justice system actors, if you will, that they're not getting it right. As I said, there doesn't appear to be any evidence of that.
The third problem, as I see it, is the blunt tool that is criminal law. I expect that Mr. Hamilton will touch upon the issue of mandatory minimum sentences. The last time I appeared before the house committee on this very same bill, I made comments with respect to mandatory minimum sentences.
I will limit my comments to this: There is no disagreement that in the vast majority of cases, people that commit this kind of mischief are deserving of a criminal record. It may be a difference of 99.99 per cent of offenders versus 100 per cent of offenders, as is what happens when you have a mandatory minimum sentence.
We have a number of offenders in our criminal justice system who suffer from serious mental health issues, for example. Our criminal justice system isn't getting it wrong as it is, I would submit. To bind judges in every single case to stamp somebody with a criminal record when there are other measures available, in my submission to this committee, is not only inappropriate but it's dangerous to claim that every offender should have that minimum level of punishment.
As I said, our criminal justice system isn't getting it wrong as it is, but in those one out of a hundred or one out of a thousand cases where someone with, for example, a severe mental health issue who may have a lower level of culpability, who may not need to be branded with a criminal record for the rest of their lives, I would ask the committee to consider that. Our criminal justice system does need that flexibility to account for those very rare cases where perhaps somebody who is given a probationary term with conditions and rehabilitative elements but without that additional punitive element of branding that person with a criminal record for life, that's an important consideration for this committee, in my submission.
The Deputy Chair: Thank you very much, Mr. Russomanno. With respect to your invitation to us each time you appear to go down and observe proceedings in the courtroom, we have access to Westlaw Carswell here, and we read the decisions. You've had 17 decisions in the past 10 months. You are a very active and successful lawyer, and a very good lawyer. We read all of your reported judgments.
We will now call on Mr. Graeme Hamilton, whom I notice is a graduate of Harvard Law School and is a litigator as well.
Graeme Hamilton, Representative, Canadian Council of Criminal Defence Lawyers: Thank you, Mr. Chair. I'm here today as a representative of the Canadian Council of Criminal Defence Lawyers. The CCCDL was formed in November of 1992 to offer a national voice and perspective on criminal justice issues.
Since the organization's inception, the CCCDL has intervened in important cases before the courts of this country. It has been invited by the federal government to consult on major pieces of criminal legislation, and it is often asked by the media to comment on current issues. Our representatives have appeared before the Standing Senate Committee on Legal and Constitutional Affairs and the House of Commons standing committees on justice, human rights, public safety and emergency preparedness.
The current board has representatives from all ten provinces and three territories.
I intend to focus my brief opening remarks on the mandatory minimum component of this legislation, which I fear may be self-defeating.
Having reviewed the debates in the house and the meetings of the Justice Committee when Bill C-217 was studied, it appears that there is broad consensus that desecration of monuments to our war dead is on the rise and that the aim of this legislation, which is to denounce and deter this sort of criminal activity, is a salutary one. By singling out mischief to this class of property, Parliament sends a clear message to judges, to Crown attorneys and defence counsel, and to the Canadian public, that the desecration of war monuments is a more serious offence than mischief generally, which will be denounced accordingly through stiffer sentences.
However, the archetypal offender, based on the recent cases cited by Mr. Tilson and others on this matter before the house, would appear to be a youth or young adult male, perhaps fueled by alcohol or drugs or an uncaring attitude toward the sacrifices our veterans have made for us, or a combination thereof. Rehabilitation will figure prominently into the crafting of a sentence for this sort of offender. Even without the mandatory minimum that is proposed, the sentencing judge is confronted with the vexing task of crafting a sentence that adequately denounces the offence on the one hand, but at the same time rehabilitates the offender.
The mandatory minimum makes this task all the more difficult. While the minimum penalty proposed is not overly stiff, it takes away from the judge the option of granting, as Mr. Russomanno indicated, a conditional discharge, which is a very helpful option to have when the court feels that community service or restitution is appropriate but at the same time is concerned with the impact that a criminal conviction or record will have on the offender's long-term employment prospects.
Another issue with the mandatory minimum that is proposed is that it is not rationally connected to the objective of the legislation. A fine is not likely to instill a sense of responsibility in the offender — not like performing 200 hours of community service for veterans would — and by saddling the offender with a criminal record, he or she is being further marginalized and made more likely, perhaps, to engage in the same sort of antisocial behaviour in the future.
Ultimately, what I expect you will see is very few convictions under this new provision. Through the pretrial process, the parties will agree to work around it, with the Crown settling for a plea to mischief simpliciter so that a sentence that is appropriately responsive to the offence and the rehabilitative needs of the offender can be crafted. This work-around will introduce delay — due to the need for more expensive pretrial discussions — additional cost and reduced transparency into the justice system.
Thank you.
Senator Runciman: Thank you, gentlemen, for your appearance.
You talked about your assumption that there would be very few convictions if we proceed with the legislation. We don't have any statistical evidence to back this up — and you are making an assumption — but I think that from the data that Mr. Tilson did have, the penalties in most of those instances were pretty modest. I think that was part of what drove him to initiate this legislation. It is six of one, half a dozen of another, I guess; we really don't know, in terms of having hard and firm statistics, what has been happening across the country related to these kinds of crimes.
I want to talk about mandatory minimums, which you both have expressed concern about.
This mandatory minimum, Mr. Russomanno, is your primary concern with respect to this legislation. I think that's what I read from your presentation. This is a repeat offender to whom the mandatory minimum would apply, someone who has undertaken to desecrate a memorial to war dead for a second or a third time, and you're telling me that you and others have real concerns about a mandatory minimum of significant penalty applying to that kind of individual?
Mr. Russomanno: My reading of the legislation is that for a first offence there is a mandatory minimum sentence of a $1,000 fine, so it is a mandatory minimum sentence. My concern, on that level, is that it precludes the possibility of a discharge.
For a second and third offence, I understand that it is patterned almost exactly the same as impaired driving offences, minus the driving prohibition, of course. That is my concern.
In addition, I would be hard pressed to even fathom that a criminal court wouldn't sentence a second or a third offender to jail. If they are before the court for wilfully desecrating a war memorial for a second or third time, it is unfathomable that they would receive anything less than that offence. Really, it becomes a question of redundancy in my respectful view.
Senator Runciman: I was told — and I didn't look at it myself — that when you appeared before the House committee, you described these kinds of acts as despicable, which I think is fair.
Mr. Russomanno: Yes.
Senator Runciman: I took the time to look that up in the dictionary, and the definitions that they use are "contemptible, loathsome, reprehensible and abhorrent."
Obviously, you are entitled to your perspective on this, but you are fine with Parliament sending a message of condemnation as long as it is not accompanied by any consequences. That is the way I interpret your position.
Mr. Russomanno: I would disagree with that because the issue comes down to having that option in, albeit, the minority of cases to not brand somebody with a criminal record. But that is not the only form in which we choose to punish individuals. In my comments before the house committee last year, I talked about how, very often, a term of probation accompanies a discharge, as it would a suspended sentence. A term of probation is often a lot more punitive than a fine. There can be those measures imported into the probationary term that would have quite a punitive effect.
In the course of my practice, I have clients who would often rather opt for a fine as opposed to probation because probation can be up to three years in length and there can be any number of conditions attached to that term of probation.
Senator Runciman: Mr. Hamilton, you again referenced youth and young offenders. What we have heard up to this point is that this legislation would have no application with respect to young offenders. I am wondering why you focused part of your remarks in that area.
Mr. Hamilton: I don't have the data to support it, but when Mr. Tilson originally presented this bill before the House, the references that he made to certain cases referred to primarily young people involved, not necessarily youth under the age 18 but either people under the age of 18 or young adult offenders, people who are subject to the sentencing provisions of the Criminal Code but are in that 18 to, say, 26 age category. When sentencing a youthful adult offender, if I may use that term without being confusing, the courts have said, particularly when it is a first offence for that offender, that one of the key considerations of sentencing will be the rehabilitation of that offender.
Presuming that it is indeed a youthful adult offender being sentenced, then on the one hand the court will be concerned about denouncing the offence. Certainly, with this legislation, Parliament is sending a strong message that this particular type of mischief needs to be denounced, but on the other hand, we try to balance that with the need to rehabilitate that type of offender.
Senator Runciman: I really just wanted clarity. You are talking about a youthful adult offender, not a young offender?
Mr. Hamilton: Yes, that's correct.
Senator Joyal: I would like to come back to a point raised last night in the testimony we heard from the representative of the John Howard Society. Did you have an opportunity to be aware of her testimony?
Mr. Russomanno: Yes.
Senator Joyal: Ms. Latimer raised the issue of the potential challenge of the minimum sentence that Bill C-217 proposes. She referred to the case of R. v. Cloud, a recent case of February 3. I don't know if you aware of that case. That is a decision of the Court of Quebec, the Criminal and Penal Division, involving Richard Jason Cloud, an Aboriginal person. She referred to that case in the context of interpreting what the Supreme Court has stated as being the criteria to evaluate the impact or the legality of a minimum sentence. Are you aware of that case?
Mr. Russomanno: I have not read that decision, no.
Senator Joyal: Do you have any comment on the contention that Ms. Latimer put to us that the minimum sentence proposed in Bill C-217 could be challenged on Charter grounds?
Mr. Russomanno: There is a recent precedent out of the Ontario Court of Appeal with respect to challenging mandatory minimum sentences for firearms, which I'm very well aware of. It is the case of R. v. Nur. The Charter ground would be cruel and unusual punishment. It tends to have a fairly high threshold that one has to meet. It has to meet the test of gross disproportionality.
What the court would look at in the case of a challenge under section 12 of the Charter would be a hypothetical offender imbued with certain hypothetical characteristics and whether that sentence for that kind of offender would be grossly disproportionate.
I see that as a potential challenge, but Nur happened to be one of two cases in Canadian legal history in which a sentence was successfully challenged under section 12 of the Charter. So I would suggest that it's quite difficult to raise a charter challenge on the grounds of cruel and unusual punishment.
It would require further examination on my part with respect to the unavailability of a conditional discharge, as to whether that would be grossly disproportionate. Usually, we're talking about a mandatory minimum sentence of imprisonment of three years in the case of Nur or seven years in the predecessor case at the Supreme Court of Canada.
Mr. Hamilton: I agree that it would be highly unlikely that a Charter challenge to the mandatory minimum in regards to this particular offence would be successful.
Senator Joyal: In the case that Ms. Latimer referred to us, the Richard Cloud case by Justice Patrick Healy, the justice restated the principle of proportionality and the principle of individualization of the case, which the Supreme Court established as being the two elements that the judge would balance in deciding if a fine meets the test that the Supreme Court has established.
It seems to me that in the case of a fine of the nature like the one proposed in Bill C-217, it is a matter of proportionality and the circumstances surrounding the particular case, especially in the case of a person who is under the influence, somebody with mental health problems or who could be affected by other factors that the court will want to take into consideration.
It might not meet the test of "cruel and unusual punishment," but it could also have to satisfy the principle of proportionality and the surrounding circumstances of the case whereby, since there is no element for the judge to impose the fine in a particular case, it could be challenged on those grounds.
Mr. Russomanno: I wouldn't necessarily just agree with that. Proportionality is one of the cardinal principles in sentencing found in section 718 of the Criminal Code, and I believe it also considered a principle of fundamental justice in our Charter of Rights and Freedoms under section 7. Where other criminal offences mandate a minimum fine, such as impaired driving, there is a reasonable presumption that those who engage in driving offences have at least some means to pay a $1,000 fine. If they have the ability to drive a car, theoretically they would have the means to pay a $1,000 fine.
There is a particular concern that we have at the Criminal Lawyers' Association with the inability to pay fines. For example, in Ontario there is not the possibility to engage in this work in lieu of paying a fine. While the court said in a case called Wu that there are no debtors' prisons in Canada, the Criminal Code sets out that if someone is unable to pay, they could be arrested for an inability to pay. In that case, the state would have to satisfy one of two criteria. The first is that they would have to show that the person is wilfully not paying the fine as opposed to, for example, not paying due to poverty. The second is that they would have to exhaust a civil forfeiture remedy through a collection agency. The state would have to go through one those two avenues to try to enforce the payment of the fine. Where either one of those two avenues are not fruitful, the state can then have this person, the offender, arrested.
They would probably spend at least some time in jail before they are brought to a court and they could then make an argument that they are unable, due to poverty or other circumstances, to pay the fine. By that point, of course, they would have to hire counsel or be self-represented, and in such cases I would imagine it would be counsel pro bono. They would have to spend several days in custody before they would be able to make this argument that due to circumstances of poverty, they were unable to pay.
It appears as though there may be some difficulty with some individuals unable to pay the fine and that may lead to undesirable results, if I could put it that way.
Senator Joyal: How do you interpret the subsection (4.11) that we are adding in section 430 of the code, which is generally mischief, with subsection (4.1), which is "Mischief relating to religious property"? How do you see the overlapping of one and the other? On which grounds do you think the Crown will choose to elect to charge on the proposed subsection instead of subsection (4.1)?
Mr. Hamilton: If I may answer, senator, this was something that Mr. Cotler touched upon in the debate when this matter was before the house, namely that there is overlap between this provision and some of the others.
Certainly a conviction, if I was a prosecutor, could be easier perhaps under (4.11) because the additional element that needs to be proven in order to secure a conviction under (4.1) is that the act was motivated by hate, whereas this proposed provision is simply consequence driven. All that the Crown would need to establish was that this was indeed a war memorial of some sort coming within the definition in the provision.
There is certainly an overlap there. Perhaps there is an inconsistency in that there is a mandatory minimum proposed for the offence that is consequence driven, but not the one that is motivated by hate.
As a practical matter, if I were acting as a prosecutor and if the offence looked as though it could fall within (4.1) or (4.11), I would choose the latter because it would be potentially easier to secure a conviction.
Senator Joyal: In other words, we would reduce the impact of (4.1) by adding (4.11), the one proposed in Bill C-217. The one in Bill C-217 doesn't need any proof of mens rea. The mere fact, for example, that you have thrown a stone at the war memorial makes you responsible for the offence, while in the first one you have to prove the mens rea, which in some circumstances could be a very difficult level to reach.
I think of some examples, for instance, where you paint a political slogan on a monument. The slogan can reveal an intention, but if you just throw a stone at the monument, it is difficult to determine the mens rea of that person.
In such a case, it seems to me that we are weakening the protection afforded by subsection (4.1) by adding proposed subsection (4.11) because person could go away with a fine of $1,000 while with the first one, the sentence can be much higher. As you said, it could be probation of three years, which is much more cumbersome than just writing a cheque for someone who has no money.
Mr. Russomanno: Yes, and as you have suggested, a much higher level of mens rea is required under (4.1) than under the proposed legislation.
The Deputy Chair: Also, Mr. Russomanno, if you could consider whether or not mischief simpliciter is a lesser included offence to the one that we are presently enacting here before the committee.
[Translation]
Senator Dagenais: I want to thank our guests. Since we began our study of this bill, we have talked about educating repeat offenders who are sometimes young. So this is a matter of education. You mentioned mental health. Poverty is clearly a consideration here, as people who may not be able to pay fines would have to go to prison. These may be fine words, but we should instead be talking about making those people accountable.
I know that it will be difficult to enforce the bill. For some 30 years, I saw people go before the courts represented by defence lawyers who did an excellent job. However, those same individuals would repeatedly wind up in court.
Do you not think that the bill is consistent with the action of desecrating a symbol? People do understand that a war memorial is not an ordinary monument.
I would like to hear your thoughts on that.
[English]
Mr. Hamilton: I think the bill does serve an important objective in that it does send a message that this sort of conduct must be denounced. Even without the mandatory minimum — and that is what I focused on today — a message is sent to the courts that this sort of mischief is much more serious. Even without that provision, the court can then consider this to be an aggravating factor and, as you say, hold the offender to account. They can denounce it and then fashion a sentence that appropriately calls that offender to account.
What I would question — and I am not a criminologist — is whether the fine provision would really accomplish accountability. I think it was said in the previous panel that when it is not necessarily a youth but a young adult, would it be them or their parents who would pay this fine to bail them out in that particular case. In the example I gave in my opening submission, a conditional discharge where someone does 200 hours of community service with veterans or cleans a monument or something like that, it would have a greater impact on them in terms of ensuring accountability down the road.
Mr. Russomanno: With respect to accountability and repeat offenders, yes, there are defence lawyers that represent these individuals, and they highlight the mitigating factors of any particular sentence and the personal factors related to an offender to advocate for the least severe sentence possible, if I could put it that way. On the other side, we have in our adversarial system very able Crown attorneys who in all cases are going to mention to the sentencing judge that the person is a repeat offender, and the sentencing judge considers that.
We have an important principle in our sentencing law called the "step principle": If a person is before the court for a second time, then the sentence required has to be more severe than the one received previously because, obviously, the message has not been sent home to the offender, also known as specific deterrence, and society at large needs to be generally deterred from this repeat type of conduct.
My suggestion is that the justice system is already equipped to deal with repeat offenders in this regard. A war memorial mischief-maker will be more severely punished the second time and even more so the third time.
Let me give you an example in terms of the slippery slope argument that I made earlier. If we were to consider the nature of the place — and Parliament will specifically designate sentencing judges to consider this — there are other criminal offices, for example, where the code doesn't speak specifically to this but sentencing judges already consider it. In cases of theft, robbery or assault, where the victim is a particularly vulnerable individual, for example, the theft or an assault of an elderly widow versus a young person, the sentencing judge is going to take into account the fact that the victim is particularly vulnerable. They don't need to have it spelled out for them in the Criminal Code — "where the assault is of an elderly widow, the sentence shall be thus." It already is an aggravating factor that a sentencing court considers.
By way of suggestion, perhaps it would be more useful to direct sentencing judges to consider the sanctity of the place that's being desecrated as opposed to saying, "In the case of war memorials, it shall be thus." Perhaps the sentencing judge should be directed under this section that they should be considering the sanctity of the property in question as an aggravating factor. That is a suggestion I might make in that regard.
[Translation]
Senator Dagenais: I agree with you, Mr. Russomanno. This involves the step principle, and if we see that one of the steps is weak, we can strengthen or replace it.
[English]
Senator McIntyre: Gentlemen, thank you for your presentations.
Let's look at reality. Assuming Bill C-217 was the law in Canada calling for a mandatory minimum sentence or fine for first offenders and jail for repeat offenders, and assuming also you were a defence counsel representing not a youth but an adult offender in court on a charge or charges contrary to any violation of the legislation as set out in Bill C-217, what arguments would you make before the court in a sentencing hearing? How would you approach this? Would you invite the presiding judge to examine the definition of "mischief offences" in the Criminal Code as opposed to mischief relating to war memorials? How would you handle this?
Mr. Russomanno: Just so I understand, is this at a sentencing or a trial?
Senator McIntyre: At a sentencing hearing.
The Deputy Chair: As a mitigating factor.
Senator McIntyre: Bill C-217 is the law, okay? You have a young offender with you who is charged.
Mr. Russomanno: Yes.
Senator McIntyre: How would you approach this with the presiding judge, bearing in mind that Bill C-217 is calling for a mandatory minimum fine for a first offender or a mandatory minimum jail term for repeat offenders?
Mr. Russomanno: The fine is the floor, so obviously we have to start from there. I would have to concede that desecration of a war memorial is an aggravating factor compared to your other kind of mischief, as was referred to yesterday, of a mail box. You can't possibly make an argument that it is not an aggravating factor in that it is a war memorial we are talking about. The circumstances of the offence itself is an aggravating factor.
As section 718 points out, we have to look at the circumstances of the offender, so I would have to get into what kind of offender we are dealing with. We have all kinds of different offenders that come before the courts.
In terms of mitigating factors, I wouldn't certainly highlight the fact that it was a war memorial. That would have to be conceded as an aggravating factor.
Mr. Hamilton: I apologize; I will not answer your question directly. My advocacy would start before the sentencing hearing. It would start in the pretrial process. I would advocate for the Crown to consider prosecuting the offender simply for mischief, which I submit is a lesser and included offence.
Senator McIntyre: Proceeding summarily rather than by indictment?
Mr. Hamilton: Yes, proceeding summarily, assuming this youthful offender is also one without a record so that that offender can eventually avoid the consequence of a criminal record. I would say that what is responsive in this particular case would be community service that would make that offender recognize what they have done and instill a sense of responsibility in that particular offender.
In doing so, what I would hope to accomplish is to avoid the criminal record, which particularly for a young person can have a very dramatic consequence well beyond the actual sentence imposed. It certainly would interfere if they were trying to get into the practice of law. Many other professions and jobs now screen out applicants who have criminal records or criminal convictions on their record. That is what I would be aiming to avoid.
Indeed, the person might end up with a more serious sanction in the short term in terms of community service and the number of hours they have to perform, but in the long run, I would hope that would be better for the offender.
Senator McIntyre: As mentioned by Mr. Russomanno, if your client had mental health issues, you would ask the court for a psychiatric evaluation.
Mr. Russomanno: Or I would conduct my own before arriving. As Mr. Hamilton suggested, a lot of the work happens up front before you get to sentencing court.
Senator McIntyre: And chances are he would either be unfit to stand trial or fit to stand trial, not criminally responsible on account of a mental disorder.
Mr. Russomanno: That is a very difficult threshold to meet. There are a lot of individuals with mental health issues who don't meet that criteria and are languishing in our jails.
Senator McIntyre: But you need your psychiatric evaluation first, that's for sure.
The Deputy Chair: Mr. Russomanno, you have quite considerable experience appearing before review boards on NCRs, not criminally responsible. You were just being cross-examined by the longest-serving chair of the NCR review board in Canada, 25 years, a litigator and the chairman of a review board. So I hope that both of you will be here when we review the legislation coming up before the Senate on the changes to that particular act.
Senator McIntyre: I am not an expert.
The Deputy Chair: Well, 25 years, litigator, chairman of a board; you can only get there if you are a retired judge.
Senator Batters.
Senator Batters: Thank you very much for coming to our committee today.
The first question I have is regarding the "fine options" program that you have referenced briefly that's in place in a number of provinces in Canada that would allow for community service to be an alternative to a fine where people did not have an ability to pay. Unfortunately, that is not available in the province of Ontario, and since the provincial government in Ontario has not put that type of a program in place, I'm wondering if either of your criminal defence organizations is lobbying the Liberal Ontario provincial government to put that sort of program into place to assist your clients.
Mr. Russomanno: I'm aware of certain members of our organization — Michael Spratt, a colleague of mine who was supposed to be here today but got pulled into court earlier this morning, has taken a particular interest in this issue. I'm not sure if it's in an organizational capacity with the Criminal Lawyers' Association, so I will have to get back to you on that one.
Mr. Hamilton: I don't believe the CCCDL has lobbied in that way.
Senator Batters: When Senator Joyal was asking you earlier about motive and mens rea, I'm wondering if there's a little confusion here. I'm a lawyer as well, and I'm wondering if we're getting a little confused. There is still the mens rea required to commit mischief, it is just that the motivation is what is in that previous section of the Criminal Code that's in place right now showing whether the motivation is hate or gender or that sort of thing. Would you agree that's the case here?
Mr. Hamilton: Yes, and I had a quick look at the other mischief provisions last night, because there's also an open question, I think, if this bill is enacted as is, as to whether you also need to prove an intent that the individual actually committed mischief to property as defined within the proposed provision.
I think generally the view with the mischief provisions is, no, it is a general intent offence, and you don't need to prove that the individual knew that it was a testamentary instrument worth more than $5,000; it is enough that they committed mischief and that's simply a consequence.
I think the mens rea for this offence will simply be that the person intended to commit mischief as that's defined. And then with subsection (4.1), of course, there's that additional element of proving, as you say, a motive, and there is a distinction between motive and intent.
Senator Batters: I'm not sure which one of you was saying that it might be the case that the parents pay the fine of a younger adult offender, but then that particular offender wouldn't be held to account by those parents. I would strongly disagree with that assumption, because in many cases there would be significant accountability required by those parents if they were to shell out $1,000 for their child. I can't imagine, actually, that being the case in my parents' household if that would have happened when I was a 19-year-old person who would have done that, and they would have had to pay $1,000 for me.
Senator Plett: I'm one of the very few people around the table who is not a lawyer and not in law enforcement.
Our government, as you are well aware, has believed that the courts maybe haven't been getting it right, and that's why we have been promoting minimum sentences, not just in this particular case but in many others. I would respectfully disagree that the courts have been getting it right in all cases.
You have both indicated that the $1,000 minimum, in some way, would prevent a judge from handing out a stiffer penalty such as three years of probation. Now, I have read the bill as well, and I don't see where the judge isn't allowed to give him a $1,000 fine and three years of probation; so I think that could still be done. I think the 200 hours of community service could still be done.
I agree with Senator Batters. Certainly my parents would have held me accountable, and if I wouldn't have done the community service, I would have done some service somewhere else if they had paid $1,000 for me.
I asked Mr. Tilson this yesterday. Unfortunately, he couldn't give me the answer I wanted either. From the Library of Parliament we have about 30 different cases of people desecrating war memorials, vandalizing, so on and so forth, and very few have punishments listed. I'm wondering whether that is because there were no punishments, but if you think the courts have been getting it right, do you have stats on where the courts have been getting it right? And, again, let's leave out the juveniles, the youth in this, because this bill doesn't apply to them. This bill applies to adults. I'm curious whether you have stats where the courts have been getting it right.
Mr. Russomanno: With respect to mischief to war memorials, I don't have statistics and I don't believe I have heard any statistics with respect to these. That really goes to your first comment. I don't doubt the sincerity of the belief that this government believes that the courts aren't getting it right, but there's a very big difference. There's a very big gulf between belief and actual knowledge based on facts, based on statistics. That seems to be where the issue lies with me.
In other cases of even mischief simpliciter or assault or robbery or other offences, I'm in the criminal courts every day here in Ottawa, and I don't see a vast soft-on-crime problem with repeat offenders coming before the courts and getting soft sentences. So my comment really is derived from that overall experience.
With respect to war memorials in particular, I don't know of any instance where those kinds of light sentences have been imposed, and I don't have statistics in that regard. I don't think I have heard any statistics in that regard.
With respect to the three-year probation, I wasn't intending to suggest that it would be impossible in light of this new proposed legislation to give a three-year probationary term. My suggestion was that the criminal record itself is not the only vehicle through which we impose accountability with offenders, and that leaving the option open, at least for those very few offenders who may not have a criminal record where a conditional discharge is appropriate, you may still be able to instill that kind of punishment and accountability through a probationary term without branding them for life, essentially, and preventing them from not just getting into professions but even your basic jobs with a criminal record check being required.
That was what my comment was directed at.
Mr. Hamilton: If I may just briefly address this last point, I think you are absolutely right that it would be possible to impose a probationary term including a quantum of community service. I think it becomes less likely with the mandatory minimum, and the reason it becomes less likely that that's also imposed is because the judge, as Mr. Russomanno has indicated, is going to take into account that the individual has been fined. He's going to take into account the consequence of having a criminal record. When it is a first offender, they are going to be concerned that there's already been a fairly significant punishment and will, therefore, be less likely to, in addition to that, impose community service.
I could be wrong. The case law could develop differently where the courts decide — and this is how the law develops — that a fine is appropriate in addition to community service, and that becomes the precedent and the typical sentence for this sort of offence. But my view at this point is that that is less likely because of the consequences that the individual is going to be facing as a result of the mandatory minimum.
Senator Plett: I'm always told by lawyers that one of the first things they're taught in a court of law is don't ask a question that you don't know the answer to; but since I'm not a lawyer, I'm not subject to that. I don't know the answer to this one, but I know that you will give it to me.
Let's assume that a poor individual has done this once, doesn't have the wherewithal to pay the fine and pleads for mercy to the prosecuting attorney. His defence lawyer, together with him, say this is the first time and it will never happen again. The prosecutor believes that. Instead of the judge making this decision, is the prosecutor not able to lessen the charge so that this person won't go in front of the judge and the judge be forced to give him a $1,000 fine?
Mr. Hamilton: That's exactly the point I was trying to make in my opening remarks. I think that's exactly what you would see happen in this particular case. With the mandatory minimum imposed, the discretion gets transferred from the judge to the prosecutor who, as a minister of justice, as a quasi-judicial official, decides that in this particular case, given this person's personal circumstances, it is not in the public interest to pursue a conviction under (4.11).
The expense, though, for the system is, first, there is a lack of transparency, because what are the facts that then go in before the sentencing judge? If this bill ultimately gets studied after the fact and there aren't many convictions under the legislation, people might wonder why.
As well, an additional step would need to take place where an advocate or Mr. Russomanno or I would need to step in and say for the prosecutor's consideration that this person doesn't have the means or the wherewithal to pay. If this was a simple mischief prosecution, that wouldn't necessarily have to be the case because there isn't that mandatory minimum where you are asking a prosecutor to exercise the discretion not to prosecute the offence that was charged but to do something else.
Senator Plett: Other than transparency, that could be a good thing. It wouldn't go front of the judge and we wouldn't waste the court's time; it would be done in an office such as this. The deal would be made. The individual would get off and it wouldn't tie up the courts.
We saw some pictures earlier. The intent of this bill is not to penalize somebody who, in a drunken moment, made a mistake. Yesterday, we were told that a person could be sleeping around a war memorial and needed to relieve himself and that would somehow excuse the person. I don't agree with that but, nevertheless, it was done in a drunken stupor. The pictures we saw are intent. Somebody went to a hardware store, bought a can of paint, and came back and painted swastikas on memorials. That is intent.
I guess there isn't a question in this other than for me to say that whether the person is poor or has $1,000, the person is still sane.
You talked about mental stability and we have talked about impairment, so there may be extenuating circumstances there. But being poor is not an extenuating circumstance. You possibly have more time to think about it if you are poor and don't have the wherewithal to pay, and you should to make sure you don't have to do this.
You can reply to that if you wish.
Mr. Russomanno: My very simple reply is the scenario you have presented with someone who takes the time to go to the hardware store and puts a hateful message or image on a war memorial would not — absolutely not — get a light sentence in a criminal court even as a first offender. I would suggest that the adversarial system works in this case. We have very able Crown attorneys who argue for severe sentences in those cases and present to the judge that these are aggravating circumstances. The person actually took the steps to plan this out. They presented something particularly hateful — mind you, something which already under section 718.2(a)(ii) of the Criminal Code directs judges to consider as an aggravating factor when something is done for a hateful purpose — and they would receive a severe punishment. There is no existing inadequacy in the Criminal Code that fails to deal with this issue.
Senator Plett: We see over and over again people that have sexually assaulted children; people who have 27 counts of assault that get very, very light sentences . I'm sorry; I respectfully disagree that that would be the case.
Senator Day: Gentlemen, thank you very much for your comments. They were very helpful. I have a short question of clarification relating to restitution.
Judges now have the authority under either section 718 or otherwise to order restitution in addition to whatever other order the judge may make. Under this proposed legislation, can the judge ask that this $1,000 minimum fine be used for restitution?
Mr. Hamilton: I don't believe so, Senator Day. I think there would need to be a free-standing restitution order in addition to that fine. If the person is impecunious or is poor, as we have talked about, it would probably be less likely that if there was a minimum fine and a victim fine surcharge that needs to be paid, the judge would then in addition impose a restitution order as a probation condition.
Mr. Russomanno: I agree with that absolutely. There are those options available to order restitution in addition to the fine, but with respect to the fine itself, that's not, as I understand it, directed towards restitution.
Senator Day: What happens to the $1,000 if a fine is imposed, the minimum $1,000?
Mr. Hamilton: It goes to the Ontario Minister of Finance and I'm not sure.
The Chair: The province.
Senator Frum: I'm the other non-lawyer around the table. Let me ask you this question from my perspective, following up on your response to Senator Plett, which I thought was very persuasive, that in the case he cited there would be serious charges.
Is it possible that it is helpful and instructive to have this kind of provision in the Criminal Code for the police to persuade them of the necessity to press charges? Maybe the reason there's this absence of statistics is because things are deemed at the charging level as not being worthy of placing charges so that this is really more of a directive at the police level.
Mr. Hamilton: If I may, senator, the legislation can certainly serve an educational purpose. I think you are right that if this legislation is enacted, if this sort of mischief is more serious, then that might result in police officers exercising their discretion to lay a charge where they otherwise might not in a case of pranksterism. Certainly it can serve an educative aspect.
Senator Runciman: Mr. Hamilton, you mentioned in your opening comments, in response to Senator Plett, the Crown's discretion prior to going to trial with respect to how they can deal with an accused in terms of recognizing the particular circumstances of the individual as well.
I'm curious. I'm certainly not familiar with how frequently it is utilized, but another alternative that the Crown has is section 717, the alternative measures provisions. How do you see that having a role to play if this legislation becomes law?
Mr. Hamilton: Quite frankly, I don't have much experience with 717. It is not something that I see being used with any frequency, so I don't know if that would change with this legislation. Perhaps if there are more bills with mandatory minimums —
Senator Runciman: It would result with no criminal record. That would be the bottom line here.
Mr. Hamilton: Right.
Mr. Russomanno: Yes, I understand this to be sort of a form of diversion that the person has to admit commission of the criminal offence and then they would be relieved of the finding of guilt. It's something we see very often with other kinds of offences, for example, assaults for first-time offenders, and it requires steps to be taken up front. This really goes back to Mr. Hamilton's point about it going to the discretion of the prosecutor as opposed to the courts.
Senator Runciman: That's right.
Mr. Russomanno: It would all be within the purview of the prosecutor in question to actually engage the offender in this particular measure.
Senator Runciman: The point I was trying to make is there are options there, pretrial and post-trial, to remove the possibility of a criminal record, depending on the circumstances of the individual and the recognition of that by the courts and the Crown.
Mr. Russomanno: Yes.
Senator Joyal: Have you ever been involved in procedure involving mischief under section 430?
Mr. Russomanno: Yes, many times.
Senator Joyal: What was your assessment of the decision of the courts? Senator Plett kept repeating that the courts are too lenient, too soft, too uncaring, and so on. What is your assessment of the decision of the courts in relation to the experience you have had with section 430?
Mr. Russomanno: In the cases I lost, I would say the court was wrong.
No, I'm just kidding; that was a joke.
With respect to sentencing, I have dealt mostly in terms of mischief with cases of mailbox mischief as opposed to war memorial mischief. I was involved in a case where someone was charged with mischief of not at a war memorial, but a very similar site. Ultimately, the charges were withdrawn for lack of a reasonable prospect of conviction. That was a decision of the Crown, which I believe in that case was appropriate.
With respect to sentencing, in my experience mischief usually goes along with other offences. There could be offences of violence against another individual where really the harshness of the sentence is dictated by the more serious offence of assault, for example, versus petty mischief.
My experience in the criminal justice system is that we do not have a problem of judges being soft on crime. I would say emphatically the opposite. We have judges that take very careful consideration of the circumstances of offenders and offences.
It is unfortunate that there appears to be a gulf here that we're operating in. Respectfully, I think Parliament and this government operates in a bit of a factual vacuum, and that message is being received by criminal justice system participants. The message is being received that they're not trusted to do their jobs properly, and I don't think it is a particularly healthy message to level at people in the criminal justice system without a grounding in the facts and the evidence.
Senator Joyal: Any similar experience, Mr. Hamilton?
Mr. Hamilton: Mischief is one of those offences that runs the gamut. So many different types of misconduct can be caught by the offence. I probably echo what Mr. Russomanno says. If I thought the judge had got it wrong, it's probably because he didn't accept the sentence that I had proposed.
Particularly with this offence as compared to some other offences, like impaired driving, there's often an effort to craft a very individualized sentence. I would say in my practice the archetypal offender who commits mischief is somebody who is more youthful, typically a male, and fits the archetype I was referring to earlier. In those particular cases, there's often an effort on the part of the sentencing judge to craft a sentence that will instill that sense of responsibility. There might be a restitution order. There might be community service. Those would all be components of the particular sentence, which in my respectful view is entirely appropriate.
Mr. Russomanno: I would like to share an anecdote, if I could. My colleague represented somebody with considerable mental health issues who was charged with theft in relation to the donations at Remembrance Day for the poppies. He stole the coins out of the box in which people donate for veterans. He had severe mental health issues. Ultimately, he pled guilty and was sentenced to a period of jail.
He had a criminal record, so there was no question of a conditional discharge. He was sentenced to a short 30- or 60-day jail sentence, including probation with a condition that he write an essay about the importance of the service of our veterans.
Unfortunately, this individual was illiterate, so he couldn't complete the letter in time and asked if he could have the assistance of a probation officer to do that. Throughout the time, he was medicated. He had very severe issues with depression. That case ultimately ended the day before he was to go back before the court. He committed suicide, and that sentence was never ultimately rectified or completed.
That is just to give you an example of the kinds of individuals with severe mental health issues, but not only that, on the flip side, our sentencing judges do pay very special attention to these issues.
We all — police officers, defence lawyers, Crown attorneys, judges, members of the public at large — consider these to be sacred sites and consider the contributions of our veterans, of members of the armed forces, to be very special contributions that we all benefit from. I don't think there's any lack of respect in anybody in the criminal justice system for these contributions.
The Deputy Chair: Thank you, senators.
And thank you, witnesses, for your excellent presentations. I'm sure we will see you here again fairly soon.
(The committee adjourned.)