Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2, Evidence - February 12, 2014
OTTAWA, Wednesday, February 12, 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 4:16 p.m. to give consideration to the bill; and for the consideration of a draft budget.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We're meeting today to begin our examination of Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials). I am the sponsor of the bill in the Senate, and I will not chair these proceedings. Our deputy chair, Senator Baker, has agreed to assume the chair for our hearings. Before I turn things over to Senator Baker, I would like to ask members to remain for a few minutes at the conclusion of today's witness testimony so that we can complete a few matters related to committee business. Senator Baker?
Senator George Baker (Deputy Chair) in the chair.
The Deputy Chair: Thank you, chair. The chairman had some remarks, which he didn't conclude. I'll read them into the record.
If passed, Bill C-217 aims to provide for the offence of committing mischief in relation to a war memorial or cenotaph. This 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 first meeting on Bill C-217.
As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under Senate Committees.
To begin our deliberations on Bill C-217, I'm pleased to introduce to the committee the sponsor of the bill, Mr. David Tilson, who is the Member of Parliament for Dufferin—Caledon. Mr. Tilson is accompanied by Colonel (retired) Andrew Nellestyn and Christopher Skalozub, a sergeant at arms of the Orangeville Legion. We will begin this session with the opening remarks of the sponsor of the bill and the person who has put this to the House of Commons, Mr. Tilson.
David Tilson, Member of Parliament for Dufferin—Caledon, sponsor of the bill: Thank you very much, Mr. Chairman. It's a pleasure to be here with you today to discuss Bill C-217.
You have mentioned the two gentlemen that are with me, and I would like to briefly introduce them again. The first is a constituent of mine, Mr. Chris Skalozub of Orangeville. He served in the RCAF in the early 1970s as a medic. Presently, he is active as a sergeant of arms for Legion Branch 233 in Orangeville, and he is the chairman of the Memorial Restoration Program Fund as well as a member of the executive committee for the Legion in Orangeville. Colonel Andrew Nellestyn is from Kinburn, Ontario. His military career included postings in Canada, the United Kingdom, Egypt, Germany and Syria. He served in a variety of staff and command positions, including at CFB Petawawa, Damascus, Ottawa and RMC in Kingston. He is also an active member of the Kanata Legion Branch 638. They will be speaking to you at the conclusion of my remarks.
Our cenotaphs and war memorials remind us of the ultimate sacrifice paid by fellow Canadians in defence of our freedoms and our way of life. They also remind us of the ongoing service by our brave men and women of the Canadian Forces. These monuments represent a debt we owe to those who have served and died, a debt that can never be fully repaid.
When one of these honoured structures is vandalized or desecrated, it shocks and sickens us, and rightly so. As the mischief section of the Criminal Code is currently written, however, cenotaphs and war memorials fall into the same category as a mail box or a parking metre or other mundane property when it comes to penalties for vandalism. Mr. Chairman, that's just not right.
In early 2008, in my community of Orangeville, the town arranged for our cenotaph to be prepared for restoration. In late October, it was reinstalled with a solemn dedication ceremony. Then, only days before Remembrance Day, vandals hit it with eggs. It cost the town of Orangeville more than $2,000 to repair the damage. Mr. Skalozub is well aware of that incident. That despicable act was the original impetus behind this bill.
When I began doing research on this, I found sadly that the incident in Orangeville was not isolated. I have come across dozens of incidents of vandalism and other acts of profound disrespect from across the country in the past few years alone, many of which I cited during the debate in the House of Commons and the Justice Committee.
In the 14 months since my bill was referred to the Senate, there have been more incidents of shocking vandalism against war memorials across the country, from Langley to Calgary, from Windsor to St. John's. In Alliston, Ontario, which is a few kilometers outside my constituency of Dufferin—Caledon, the war memorial outside the Alliston Legion was defaced with graffiti about a year ago. There were World War II veterans present, as well as Canadian Forces members visiting from nearby Base Borden. All expressed shock and outrage.
Moving to the substance of the bill, during the examination of Bill C-217 in the house and at committee, colleagues from the opposite side made numerous references to restorative justice, judicial leeway, discretion and so forth. In particular, Mr. Harris and Mr. Cotler, both of whom I hold in the greatest respect, and both are experienced and knowledgeable members, expressed opposition to the mandatory minimum sentencing provisions of Bill C-217. Other members in the house were promoting restorative justice and judicial flexibility to be written into the bill.
Colleagues, in my contention, they missed the point. Nothing in Bill C-217 precludes a judge from ordering some form of restorative justice, restitution, apology or other alternative sentencing. A judge could order a guilty individual to spend time at the local legion to perform community service or even to scrub the monument with a toothbrush. The judge could be free to do so as he or she sees fit in a case-by-case basis. This would be after the guilty individual is ordered to pay a $1,000 fine for a first offence.
As an observation, I have spoken to some veterans and legion members who have said they don't want perpetrators anywhere near the legions, so the notion of that particular form of restorative justice in many cases would not be appreciated.
During his address to the Senate last week, Senator Dallaire raised the question of whether this bill would apply to someone who vandalized a memorial outside of Canada, such as the Vimy Memorial. My intention in drafting the bill was to cover offences that occur in Canada. If an offence occurred at the Vimy Memorial, for example, I am confident the French authorities would prosecute. If a Canadian vandalized the Vimy Memorial, the French government would have to agree to extradite the individual.
Mr. Chairman, to close, I want you to think about where the public goes on Remembrance Day and where you go on Remembrance Day. Canadians in their hundreds of thousands gather at one of the thousands of cenotaphs and war memorials in Canada. These places are holy ground in our communities. The names on those monuments are the parents and grandparents, aunts and uncles, brothers and sisters of each of us. Just across the street lies a cemetery. The Tomb of the Unknown Soldier represents in one place brave ones who did not come home. Every cenotaph and war memorial in Canada honours those who did not come home. We owe it to them to protect these cherished places.
Members of this committee, I ask you to accept Bill C-217 and report it back to the Senate so that we can put into force these measures that will help protect these most important places in our community. Thank you very much, Mr. Chairman and members of this committee, for your attention.
Colonel (Ret'd) Andrew Nellestyn, as an individual: Mr. Chairman and committee members, thank you for inviting me to contribute some personal remarks on Bill C-217. It is an honour to appear before you. Indeed, I am pleased again to see my esteemed colleague General Dallaire, with whom I have had much contact in the past.
I would also like to commend Mr. David Tilson, MP for Dufferin-Caledon, for introducing this private member's bill, the relevance and timing of which are broadly supported by many of my colleagues.
When I was first approached by Mr. Tilson's office to participate in these deliberations, other than in a general sense, I was not aware of the extent to which the perniciousness of mischief relating to war memorials was abroad in Canada, a proud and democratic nation that commemorates and applauds the sacrifices made by its veterans in defence of our freedom and those values that most admirably define us as Canadians. As I first read through the proposed legislation, although I generally supported the bill, I was somewhat at odds with the measures proposed, specifically the criminalization of such heinously disrespectful desecration as a ways and means to combat such behaviour. I thus decided to inform myself more fully on the extent and nature of mischief relating to war memorials.
Firstly, I decided to refresh my understanding of the purpose that war memorials, cenotaphs and other commemorative monuments serve, both now and throughout the past. The general definition of a cenotaph, a word I will use to describe collectively all commemorative monuments, might read, "A monument erected to honour an individual or group of people whose remains are interred elsewhere or whose remains cannot be recovered, especially in memory of soldiers killed elsewhere."
I might also add that monuments serve to permit those who have lost loved ones to bear witness that the fallen have not perished for naught and to remind all Canadians of the values we, and those who went to war, hold dear. Cenotaphs have been erected since time immemorial and in diverse cultures, and come in many forms and sizes ranging from a simple marker to elaborate mausoleums. Their purpose is to commemorate and celebrate the sacrifices and contributions of those who fought to protect and preserve that which people value, that which defines them and that which is threatened.
Cenotaphs are deemed sacred and constitute a place of assembly to honour and pay tribute to the fallen. Remembrance Day is such a time and place of assembly. Ceremonies of similar intent and purpose take place annually around the globe. Secondly, I then googled "vandalism of war memorials" and found, much to my dismay, disgust, shame and horror, that such desecration is not isolated but is disturbingly frequent and common in Canada and elsewhere throughout the world.
Not only is vandalism rampant, it takes the form of destruction, defacements, acts of woeful disrespect, such as graffiti urination, defecation and a host of other assaults. The desecration of our National War Memorial and the Tomb of the Unknown Soldier are but a few examples. Mr. Tilson has provided ample examples of mischief so I will not dwell on these in further detail.
I also discovered that measures to curb this deplorable behaviour, such as community service, meeting with veterans and such other soft remedial activity, are of little effect. So what to do? I mentioned earlier that although I fully support Mr. Tilson's initiative to discourage and eradicate mischief relating to war memorials, I was initially at odds as to the criminalization thereof and the consequences related thereto, such as the imposition of a range of graduated fines and/or imprisonment. After considerable reflection with my colleagues, I am of the conviction that there exists little choice but to criminalize mischief against war memorials and impose a range of graduated fines and/or imprisonment. My understanding is that this amendment applies only to those at the age of majority and they are adults, individuals who should know better.
I have dedicated a considerable proportion of my life to service in the military and by extension, my adopted country. I have witnessed first-hand the brutality of war, the loss of life and tragic consequences which befall nations, peoples and individuals. I was born in the Netherlands. My parents emigrated from a country devastated by war to land of opportunity and respect for freedom, values, honour, sacrifice, and sacrifice for individual and collective good. It comes as a shock that there exist those who would deface war memorials and act with such demeaning disrespect to those who sacrificed so much to serve and to protect.
I gather that some are repulsed by criminalizing this repugnant behaviour and by the imposition of associated fines and/or imprisonment. Let me state that there are misdemeanors of less severity that fall under the Criminal Code, and some have outcomes of greater consequence. Mischief against war memorials is a grievous and heinous assault and an act of woeful disrespect to our fallen, and to the values Canadians hold dear and for which Canada is acclaimed throughout the world. Permissiveness, soft consequential measures for violation of persons — the fallen are persons — and property, as well as dishonourable and irresponsible behavior, do not respect our values. They cannot be tolerated or condoned.
What if the houses of Parliament, the statues surrounding it or the Centennial Flame were vandalized? Would criminal charges be laid? Would desecration of our memorials to our fallen soldiers deserve anything less? I thus fully support Bill C-217 and commend Mr. Tilson on its formulation and introduction. They gave us their tomorrows for our today. Lest we forget.
Thank you for your invitation to share my views on this defining issue.
Chris Skalozub, as an individual: Thank you Mr. Chair and senators. I am honoured to be here today as a Canadian and as a veteran to speak to this legislation that is close to my heart.
As Mr. Tilson said, our cenotaphs and war memorials are an important place in our communities. They are a physical reminder of our military heritage and the debt we owe to those soldiers, sailors and airmen and women who died or suffered injuries to preserve our freedom. It's important we do whatever we can to protect these places we have chosen to set aside in their memory. As a chairman of our legion's memorial restoration program fund looking after our cenotaphs and monuments, it is incredibly important to me. The incident in Orangeville in 2008 in which eggs were thrown at a newly restored and dedicated monument was shocking and vulgar.
Unfortunately, desecrations of war monuments and cenotaphs are sadly quite frequent and shocking. Mr. Tilson mentioned many such acts while this bill was making its way through the House of Commons, but I'd like to mention a couple more if possible.
In September of last year in Langley B.C. the ornamental bronze plaque commemorating World War I and World War II veterans was stolen off a cenotaph. This past July in Windsor, Ontario, lighting fixtures around a cenotaph were smashed and the local legion vice-president told the Windsor Star at that time that vandalizing a war memorial does more than simple property damage. In June of last year, vandals defaced a newly $9 million Poppy Plaza in downtown Calgary for the second time in less than two years. Spray paint was found in one of the structure's panels. In Toronto on Remembrance Day 2012, a racist slogan was found spray-painted on the Victory Peace memorial in Coronation Park.
In August 2012, graffiti was found scrawled across the Argyle and Sutherland war memorial in Hamilton by a passing jogger who happened to be a veteran. That veteran took it upon himself to clean up the damage.
Here in Ottawa in August 2012 the memorial outside of legion hall in Orleans was vandalized. That statute had been damaged and bent.
Two months earlier a memorial inukshuk dedicated to a fallen soldier in Afghanistan was knocked over at the Royal Canadian Legion headquarters in Kanata.
Mr. Chair, there are many more examples of such disrespectful and dishonourable behaviour in recent years. It is sadly all too common in this country. They not only vandalize our war memorials and cenotaphs, but they also insult the integrity and memory of those who have paid the ultimate sacrifice — the past, present and future. I believe our war memorials and cenotaphs deserve special protection and this legislation makes it clear there will be stiff consequences for committing vandalism or mischief against these structures.
Elevating these honoured places above ordinary property by giving them special recognition in the Criminal Code is the right thing to do. We owe it to our fallen, our veterans and those currently serving in the Canadian Forces, and I am pleased to lend my support to this initiative.
The Deputy Chair: We will start our questioning with the sponsor of the bill in the Senate, the chair of this committee, Mr. Bob Runciman.
Senator Runciman: Thank you for appearing here today.
I want to touch quickly on a couple of criticisms of the legislation.
Mr. Tilson, you referred briefly to this, but there has been a reference to anything that limits a judge from applying principles of restorative justice, in terms of conditions that would involve education. You indicated — and I would like to re-emphasize — that there is nothing in this legislation that will preclude a judge from doing exactly that.
Mr. Tilson: Thank you, senator. It's true. I'll just repeat a little of what I said. One of the main reasons I introduced this bill in the House of Commons is because this is what we have been doing. We have been trying to rehabilitate young people who have vandalized these places, but it hasn't worked. Case after case it hasn't worked.
It still doesn't preclude a judge. You first have to pay $1,000, and then the judge, if he or she saw fit, could order attending community service at a Legion or some other place, or any other form of rehabilitation or form of education that he or she saw fit. But that only comes after you've paid the initial fine of $1,000.
I did that to show the severity. I'm hopeful that if this bill passes here and receives Royal Assent, members of the public will see that these are sacred places, and they should be treated that way.
Senator Runciman: I just want to pursue that. You talk about after they pay the fine, but there still remains the possibility that prior to going to trial, the Crown could reach an arrangement, if you will, with the accused that involves restorative justice measures if the individual is remorseful. That's still a clear possibility, is it not?
Mr. Tilson: It's true, the Crown attorney has the jurisdiction to say, "Okay, you plead guilty to mischief or some other charge, and we'll ask the judge to order the following." The Crown attorney could do that, but I will tell you, he or she runs the wrath of the public if they do so.
I'm not trying to be flippant. Surely we are not going to compare these places to mailboxes or other — I think in my presentation I used the word "mundane" places. These are not mundane places. They're serious, sacred places.
In answer to your question, yes, the Crown attorney could do that, but they run the risk of criticism from the public and perhaps even the media.
Senator Runciman: One other quick question related to some of the criticisms. I think you touched on this, and this is related to the example of a 14-year-old facing a mandatory minimum sentence. This legislation would not apply in situations like that. Is that right?
Mr. Tilson: A 14-year-old would be subject to the Youth Criminal Justice Act. This bill applies to people of majority. Someone else in another place will have to introduce an amendment to the Youth Criminal Justice Act if they want to do that. It is possible for a Crown attorney, depending on the severity of the damage and the age of the accused, to move that charge into adult court. He or she has the right to do that. They'd have to make an application to the court to do so, but it's designed for adults.
Would young people take notice of people in their 20s or older committing these heinous acts? I hope they would.
Senator Runciman: How often are these types of cases prosecuted? I read a lot of the clips that were circulated to members of the committee, but I didn't see stories related to charges and penalties that followed. How often are these actually prosecuted?
Mr. Tilson: Not that frequently. I mean, it's the old story; you have to catch them first. It's terrible. It's generally done around Remembrance Day. I don't know what that means. I suppose we could all theorize what that means. Perhaps it's anti-war people or people who don't like the military. I have no idea. Many of the cases are done at night. If they're caught, I'm hoping that the prosecution will treat the case very seriously.
Senator Runciman: You mentioned it tends to be mostly young people. Is that an assumption on your part or is that based on fact?
Mr. Tilson: It is an assumption on my part. With the situation at the war memorial over here, I think the young man was 22 years of age.
I don't have statistics as to the percentage of young offenders versus young adults. I don't have those figures. I have a binder of news clippings from across the country, and it's all over the map. There are some young offenders, and some of them are young adults.
The Deputy Chair: I'd like to point out to the committee and to people watching that we will be having people appear before the committee who will give a legal opinion as to the exact effect that the legislation will have as it relates to conditional sentencing and other matters, included offences.
The second questioner also addressed this issue in the Senate, and that is Senator Dallaire.
Senator Dallaire: Gentlemen, welcome. All three of you argue well, and for that you should be commended.
You also argue well from a position of emotional attachment to what we are speaking of, and I think that is also significant and important as we look at the impact of such actions against cenotaphs, war memorials and the like, because they reflect an emotional dimension of our culture and our sense of values in the country. You made that case very well.
The scenario or the situation that I'm concerned about is the instrument that you wish to use in order to hopefully reduce, if not eliminate, the possibility of people desecrating our monuments. I gather that is your aim. By using a hard solution versus a soft solution, you believe you're going to achieve that aim. Do I understand you correctly?
Mr. Tilson: Senator, thank you. Yes, it certainly is tougher than the way it has been. My observation in talking to people, certainly in my riding of Orangeville-Shelburne-Alton, is that yes, the courts have been too lenient on these matters. Perhaps young people — I've used the term "young people" before. It could be people who are minors or people who are in their 20s. It's rarely people older than that, at least in the situations that I've looked at.
But, yes, it's intended to be much tougher than what the law is now. I only emphasize what I've tried to say in my remarks, that this is not mischief. All of these cases have been charged under the mischief section of the Criminal Code, and I say, surely to goodness, this is not mischief.
Senator Dallaire: Again, I come to you not from a legal background, but I've been trying to come to grips with the fact that your bill, with its demand of mandatory sentencing for all and whatever the juvenile court, if given the opportunity, might impose, leaves a criminal record. I'm wondering if you believe that the courts, for I think close to 3,000 memorials that exist across the country —
Senator Joyal: He mentioned 6,000.
Senator Dallaire: There is an inventory that was created by the Directorate of History and Heritage at DND, and I forget the number.
The number of events that have happened is reflective of our courts not taking that same sense of purpose you have referred to with the memorials to a serious enough level to appropriately prosecute those found guilty. I think that's your position. Is that correct?
Mr. Tilson: Yes, sir. You will have a criminal record. The issue of conditional discharge and absolute discharge, to me, and I believe the bulk of the public — what statistics do I have? None, other than people I talk to in my riding and elsewhere as a result of introducing this bill. Yes, if you're convicted of these offences, you should have a criminal record. Absolutely. This is a serious matter. It goes beyond mischief.
Senator Dallaire: Chair, I don't know how many questions we're allowed. If you don't mind?
It is interesting that those who commit mischief on religious property don't have a mandatory sentence, and you are demanding that of what is still defined as mischief, or potentially, on our war memorials. It is also interesting that even if we kept some of the mandatory sentencing, that those who are even accused of impaired driving offences have the possibility of a conditional discharge. People who drink and drive kill people of all ages, and they're also of all ages.
I'm still trying to garner how, with the nature of the offence, the instrument that you want to use to impose upon our judicial system, and, in particular, the judges, is going to achieve your aim. I'm trying to garner how you are convinced that bringing a criminal offence, and having a criminal record in so doing, is really going to stop offences that are not what I would consider to be deliberate actions of desecration and destruction. People are stealing copper and bronze plaques because they want to sell copper and bronze, and people are under an influence in a variety of other scenarios. I live in a city where they steal the wreaths every year the minute the parade has gone on November 11. I just don't see why you want to move to that instrument and not give the judicial system more room to manoeuvre to meet the scale of what we're speaking of.
Mr. Tilson: You've raised a number of issues.
Senator Dallaire: I'm trying to sneak in a number of questions.
Mr. Tilson: It's all right. I know about that.
You mentioned impaired driving. Senator, you can go to jail for impaired driving. You can have your car seized for impaired driving. Have those severe penalties solved the problem of impaired driving? We still have impaired driving incidents, but it sure is helping. Again, I don't have statistics, and it's just what I read in the newspapers, but the incidents of impaired driving seem to be down, particularly with the police checking people. It is severe. If you get caught, depending on the circumstances, you go to jail and you have a criminal record for impaired driving.
You mentioned the issues of religious churches or cemeteries that are non-military. The bill doesn't apply to those. I'm zeroing in on war memorials. If someone wants to bring a bill, perhaps from the Senate, on religious churches, synagogues or cathedrals, they can do that. I'm simply concentrating on war memorials and cenotaphs. That's all I'm doing. There are situations where churches and synagogues and other places are vandalized, and cemeteries. You read of Jewish cemeteries in particular where people come and do terrible damage. That's for someone else to do. I'm not doing that.
In your final comment, you referred to the issue of judicial discretion. I will repeat the same question that Senator Runciman asked, at least I believe he did: You pay $1,000. The first thing you're going to do is pay $1,000. If the judge feels that there can be some sort of education, some sort of educational program, some sort of community service, the judge has the jurisdiction to do that. The whole aim of this bill is to make it severe. The penalties are severe. I sense that you don't think they should be, but I do.
Senator Dallaire: One last question, if I may: It's fine to send someone to rehabilitation after you've hit him with a sledgehammer, although I'm not sure how much that will sink in. The fact is that they'll still have a criminal record and they've paid that $1,000 fine.
I would like to ask a question to the good colonel. You are of Dutch heritage, you say. My mother is a Dutch war bride. I was born in Holland to a Canadian soldier. You are very familiar with how Canadian cemeteries are revered and taken care of in Holland, and also how children are brought to those cemeteries. The extent and level of respect throughout that society is uncanny. How have they achieved that and we don't seem to be able to? Is this really going to achieve the aim you're looking for?
Col. Nellestyn: Thank you for those kind remarks on the character of the Dutch people and the extent to which they go to honour those who freed them. I think, frankly, what we are discussing today is honouring those who gave freedom and make sacrifices for others. That's what we're talking about. As to why they are who they are and why we are who we are, I do not know. All I know is that, like them, we should honour the fallen and those who fought to preserve our freedom and values as such.
I agree with Mr. Tilson that there has to be put in the ground a marker that says, "Beyond this, you do not go," and to make it plain and clear that those who fought, those who fell, those who made sacrifices and lost their ability to make a livelihood do deserve something better than somebody urinating on a national war monument.
If I may, Mr. Chair, extend my remarks a bit further than the senator did in bringing to my attention the character of the Dutch people, you made reference to you can't rehabilitate someone after you hit them with a sledgehammer. My response to that then is, why do we have rehabilitation programs in prisons in Canada? Perhaps we should throw that out the window as well. In any event, some are rehabilitated and some are not.
This is a sacred place; is it not? It is different from a church; is it not? I think we're clouding the argument here. What we're talking about is war memorials and the respect that is due to those who fell and those who fought in wars. I think Mr. Tilson is quite right that we shouldn't be talking about apples and oranges and holding those to be the same.
The point is that a statement has to be made with some strength to it, saying that these are sacred monuments and we will not condone irresponsible, disrespectful behaviour. You owe these people who fell. You owe these people who fought in wars. You, general, know that better than anyone else. That's where I and a lot of my colleagues are coming from. Let's see something that has some teeth to it.
As to the matter of having a criminal record, my recollection is that if you have a criminal record, at some point in time you can apply to be pardoned, per se, and that pardon will be given to you on the basis of certain conditions that must be met. The point is that you do not have to go living around forever with a criminal record because there is the facility available to be pardoned.
In essence, from my perspective, people made a sacrifice, people preserved our freedom; they fought for our values. They fought so we could have a prosperous life, and quality of that life. We owe them. What we owe them is respect and the custodianship, the trusteeship, the guardianship of those monuments that reflect their sacrifices. That is all that is being asked for and I frankly do not think that is excessive.
Senator McIntyre: Thank you for your presentation. In reviewing Bill C-217, Mr. Tilson, I note that the Crown has the option of proceeding either summarily or by indictment. Under normal circumstances the Crown would proceed summarily. Obviously it would proceed by indictment if there was extensive damage done to the war memorials or if law officials were dealing with a repeat offender.
In both cases, summarily or by indictment, the bill calls for either a mandatory minimum fine or a mandatory minimum jail term.
Having said this, I note that the Standing Committee on Justice and Human Rights only made one amendment to Bill C-217. Is it my understanding that there was unanimous agreement on the part of that committee for proceeding in this fashion?
Mr. Tilson: Yes.
Senator McIntyre: There was. So everyone was in agreement?
Mr. Tilson: I think the amendment was suggested by the government. It was not suggested by the opposition; it was suggested by the government. Was it unanimous? I wasn't there; I don't recall. But they asked me ahead of time whether I concurred with it and I agreed. I can't honestly say whether I am aware if it was unanimous.
Senator McIntyre: I note there was only one amendment. You are not aware of any other amendments?
Mr. Tilson: No.
[Translation]
Senator Boisvenu: I want to start with a comment that picks up on Senator Dallaire's questions.
Even the Criminal Code distinguishes between the murder of a citizen and the murder of a police officer. The two cases are treated differently.
Vandalism against military and war memorials should not be treated the same as vandalism against religious memorials. I wholeheartedly believe they belong to all Canadians, not just to members of the military. They are part of the Canadian conscience, a conscience that recognizes that people have given their lives for the democracy, quality of life and freedom we enjoy in Canada. An attack on a war memorial is an attack not just on the memory of those who sacrificed their lives, but also on Canadian democracy. The bill should send the message that these memorials are symbols and that when you attack them, you are attacking Canada as a nation.
Mr. Tilson, I know the bill concerns memorials, but I am not sure whether it distinguishes between the memorial's being located in a civil or military cemetery. Does the bill cover every memorial in every Canadian city? I am thinking of towns like Sherbrooke, whose downtown is home to several memorials commemorating Sherbrooke residents who sacrificed their lives in the past two wars.
Does this bill apply to military memorials, regardless of whether they are located in a civil or military cemetery, and to memorials in cities and towns across the country?
[English]
Mr. Tilson: I can only quote the proposed section 430(4.11) in the bill, which says:
Everyone who commits mischief in relation to property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph . . .
That's the emphasis but it could go beyond that. It continues:
. . . or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery . . .
It is intended that it goes beyond war memorials or cenotaphs, but as I have said it's expanded to that in the bill. Speaking to people on the street, I'm referring to cenotaphs and war memorials.
[Translation]
Senator Boisvenu: Does it apply to memorials erected to commemorate a single event in which members of the military gave their lives? I am thinking, for example, of memorials built in honour of November 11, the end of the war in Europe. They do not necessarily acknowledge members of the military explicitly but, rather, a specific event. Does the bill cover those types of memorials as well?
[English]
Mr. Tilson: It could be the War of 1812.
Senator Joyal: For my first question, I will try to understand the scope of what we're trying to regulate here. Do you have any numbers on how many cenotaphs or war memorials there are in Canada? Do you have any information on that?
Mr. Tilson: I haven't gone into that extent. As I said in my opening comments, my prepared comments, the bill came to mind as a result of an incident that happened in 2008 in Orangeville, but then, upon research, the colonel referred to looking on the Internet. This binder that I have contains newspaper clippings going back five years, 10 years perhaps. I don't have that information. Do I have statistics that someone added up? No. But I've travelled a bit and every community I have been in has a cenotaph or war memorial of some sort. Why? Because Remembrance Day services are held in communities of even less than 1,000.
Almost every community in this land from sea to sea has a war memorial, a cenotaph, because people from the different wars and events our Armed Forces have been involved in have come from all these communities in the large cities, in the small towns. I have a home up in a place called Burk's Falls, Ontario just north of Huntsville. I think the population has been about 800 since the 1920s. It stayed the same. It has a cenotaph, a war memorial and the names of the people who died in World War I and World War II are listed there. But do I have the number of cenotaphs and war memorials? It goes beyond cenotaphs and war memorials. It could be something else, anything that's done out of respect for those who gave their lives in all of the various conflicts that we fought.
Senator Joyal: We could think of many thousands. With what we know from our own personal experience in our own province or region, there are many. So there would be many thousands of war memorials and cenotaphs all across the land, as you stated.
Mr. Tilson: I don't know the number, sir. But what you've just said is correct. All of us come from large communities, small communities where there is a cenotaph or war memorials. Everyone in this room comes from some place.
Senator Joyal: Did you look into the report that Statistics Canada provided in terms of mischief to public structures that specify war memorials or cenotaphs so we have an idea of the size of the infraction you intend to submit to a specific regime? Besides the press clippings you have been collecting for two years, do we have an idea of the size of the problem we are trying to tackle here?
Mr. Tilson: I don't have any scientific facts to produce here, senator. All I can say is that the vandalism that occurs to these places occurs year after year somewhere in this country. As I also previously said, it seems to happen around Remembrance Day, and it happens everywhere across this country. That, too, spurred me on to introduce this bill.
Senator Joyal: I understand. I checked the data of Statistics Canada through the library document that was provided to us, and it states that the number of instances of mischief to religious property motivated by hate was 82 in 2008 and 82 in 2012. In between those years, there were variations in instances ranging from 144, 132, 72 and 82. It gives us an idea of what the problem is in relation to religious property, which is covered by the Criminal Code, as you know.
That's why I'm trying to understand whether we are talking about something that has become rampant in Canadian society. When an incident happens, it always makes headlines and everybody is furious when they hear about it. Since there are statistics in relation to mischief to religious property, what could be the comparative basis of mischief to war memorials or cenotaphs in relation to religious property?
Mr. Tilson: Senator, as I say, this bill is not designed to look at the vandalism of regular cemeteries or religious —
Senator Joyal: No. That is already covered in the code.
Mr. Tilson: I have not designed that. Someone else in the Senate or the House of Commons may decide to include that, but my emphasis is on war memorials and cenotaphs; in other words, monuments to our fallen.
Senator Joyal: I understand that. I understand you are zeroing in on specific aspects of mischief, but in the Criminal Code, as you know, there is already a sanction for mischief relating to religious property; it's section 4.1. You're proposing to add to that section of the code.
Your own bill says "mischief relating to war memorials," and the preceding paragraph would be "mischief relating to religious property." So they would be in the same section of the code under the heading of "mischief," unless that is not your intention. I heard you say it is not mischief, but your bill mentions mischief. Could you give us more precision on what you have in mind?
Mr. Tilson: I have not gone into the Youth Criminal Justice Act.
Senator Joyal: I am not addressing the Youth Criminal Justice Act. I am addressing the Criminal Code.
Mr. Tilson: I am, sir. I have not gone into the Youth Criminal Justice Act or the vandalism to other places, such as churches, synagogues and cemeteries. I haven't done that. The purpose of this bill is not to go into those areas. There may be justification for that, but this bill is not designed to go there. Someone else may choose to do that.
Senator Joyal: We are the Legal and Constitutional Affairs Committee, and when we add a paragraph to the Criminal Code under a section that is titled "mischief," you will understand we are trying to be rational because a judge will have to interpret that section of the code and try to understand the concept that he has to implement.
That's why I'm trying to understand how the paragraph you propose adding, which is "mischief relating to war memorials," adds to "mischief relating to religious property," whereby cemeteries are already covered. I'm trying to understand how a judge or a Crown attorney, who will have to implement this section if Parliament adopts it, will relate the nature of a war cemetery versus the nature of another cemetery and on which basis a war cemetery would be submitted to a harsher penalty than just a cemetery. In both cases, of course, we're dealing with someone who has passed away; it is sacred ground, the ground that carries the remnants of human beings.
I'm trying to understand the balance between the two in the same section of the code. It's still section 4.1 of the code. You propose adding 4.1(1) to the code. That is essentially why I'm trying to understand your proposal on legal grounds so we will know the legal consequences when it is submitted for interpretation by a judge.
Mr. Tilson: Sir, I will only start repeating myself. As the summary of the bill says, the enactment amends the Criminal Code to provide for the offence of committing mischief in relation to a war memorial or cenotaph.
If I wanted to talk about religious institutions, churches, synagogues or cemeteries, or if I wanted to include young offenders, I would have done so, but I didn't.
Yes, it's true, I was a lawyer it seems like a thousand years ago, and I suppose some clever lawyer can make the submission that you're making. But, quite frankly, at the end of day, the judge has to determine whether it was vandalism to a cenotaph or war memorial. It's as simple as that. If he or she looks at churches, synagogues, cemeteries or young offenders, with all due respect to you and to a judge or lawyer making those submissions, those are red herrings.
Senator Joyal: I'm sorry, we have a difference of opinion.
Mr. Tilson: I gather we do, sir.
Senator Joyal: Because we are interpreting the same section of the Criminal Code. As you will understand, the code is supposed to be rational. When the code talks about a concept, the court generally tries to remain coherent in the interpretation they give to a paragraph and a following paragraph in exactly the same section. I'm not trying to argue how many angels sit on the head of a pin; I'm just trying to understand how we can make sure it is a complementary interpretation of the same section of the code. We are the Standing Senate Committee on Legal and Constitutional Affairs; it's our job to look into the implications when we add something substantial to the Criminal Code.
Mr. Tilson: Mr. Chair, I've made my comments.
The Deputy Chair: Mr. Tilson, I understand there will probably be a vote in the House of Commons and you may be restricted in your time.
Mr. Tilson: If you see me rising, that's why. It's not because I don't like you.
The Deputy Chair: The last two questioners, Mr. Tilson, were two famous lawyers, and now we will go to a former police officer to ask you some questions.
[Translation]
Senator Dagenais: I am very clear on the contents of the bill. We are talking about tougher legislation, stiffer penalties and rehabilitation. It is often young people who commit these acts against memorials. They target Remembrance Day specifically. Correct me if I am wrong, but it was at the war memorial in Ottawa where an honour guard was posted from 9 a.m. to 5 p.m. — and I am not sure whether that is always the case — to prevent these kinds of unfortunate acts. Are there other measures that could be taken to arrive at tougher legislation, educate young people and work on prevention?
[English]
Mr. Tilson: I don't, other than the fact that hopefully if it became common knowledge that this bill passed and it is severe, as Senator Dallaire has said — it's a severe penalty. There's no question about that. My hope is that it will cause young people of all ages to think, even though this doesn't apply to the Youth Criminal Justice Act.
Senator Dallaire raised the issue of impaired driving. Gradually, over the years, you get caught with impaired driving under certain circumstances and you're going to have the book thrown at you. You're going to go to jail. You're going to have your car impounded. I don't have facts or statistics to confirm this, but my own observation is that that's had a profound effect on the public. When people go drinking at bars, they always have a designated driver. Did that happen 10 or 15 years ago? I don't think so. I believe that the charges under impaired driving have become very severe, and that's had an effect on alcohol and drugs with the public, and my hope would be that this bill would have the same effect on people who commit vandalism to these places for whatever reason — anti-war, anti-soldier, anti-whatever.
Senator Frum: Mr. Tilson, you've definitely made the case about why the penalties should be severe, and you have all been very eloquent in making your case. When you were working on the bill and settled on the particular minimums that you did, the $1,000 fine, 14 days on a secondary charge and 30 days on a subsequent charge, how did you arrive at those particular amounts?
Mr. Tilson: I have no scientific rationale for that, either. I thought the penalties were severe. They were meant to be severe: $1,000 for a first offence, 14 days in jail for a second offence, 30 days if you go beyond that. Those are pretty severe penalties. Did I compare it to other charges? Not really. I just looked at the fact that they are severe penalties and they are meant to be severe penalties.
Senator Frum: Connected to Senator Dagenais' line of questioning, obviously this is about deterrence and trying to prevent these things in the future. It is not part of the bill and wouldn't be part of it, but have you contemplated any kind of notification near major monuments or memorials that vandalism will result in imprisonment? Have you thought about that to enhance this legislation?
Mr. Tilson: I haven't. Obviously it's happening frequently. How frequently I suppose could be debated, but it's happening. It's in the newspapers every year around November. I hope municipalities and insurance companies and others who pay to rectify this damage will come up with some ideas. The intent of the bill was to penalize those perpetrators. I haven't gone as far as you're suggesting.
Senator Plett: Thank you, Mr. Tilson, for being here. I commend you for what you are doing here. I won't belabour this point, as others have already commented on it, but I do at least want to also say that I wish the bill was a little broader as far as including some other monuments. There are some of us who believe that there are monuments that are of very high importance that should also have this. You are quite correct, sir, when you say we can bring a bill forward in that regard. I also, however, believe that this bill could have been broadened a bit to include a few other monuments. Be that as it may, I am certainly not going to propose an amendment to your bill.
I want to ask one question. You have been a little light on stats here. In the documentation that we have, we have a list of about 25 or 30 cases where a monument has either been desecrated, vandalized, urinated on and so on and so forth, but it is very light on what the sentences or punishments were. For most of them, the punishment is blank. I'm not sure whether that means there was no punishment. Do you have any figures as to what punishments have been? Again, further to what Senator Frum said, I think you would have needed some starting point, saying this is what the punishments have been and they have not been sufficient, so we needed to pick the $1,000 because $500 has not been good enough. What have the punishments been?
Mr. Tilson: I don't have a lot of information on that. I do have some. There was a situation in Cornwall where a man urinated on the steps of the Legion Memorial Park memorial. The man was charged, but it was either withdrawn or it didn't proceed because he was drunk. There was a situation in Victoria where symbols were painted on the cenotaph in the memorial park by a 14-year old. I don't have the information as to whether he was even convicted. This would be under the Youth Criminal Justice Act. This took place in 2008. In Kirkland Lake, a man was charged with urinating on a memorial wall, a diversion program, mischief charge dropped. In Ottawa, a man urinated on the National War Memorial during Canada Day. The charge was withdrawn, an apology issued and $200 donated to charity.
I could go on. This was another reason why I introduced the bill. I thought what was happening was shocking, whether it's from the courts or whatever. I think I commented to someone over here the difficulty is catching them but, if you catch them, you're going to pay a fine of $1,000.
Senator Plett: I think most police officers in the country would agree that they capture them and then, after they've caught them and done all the work, the judges turn them loose. I fully support mandatory minimums. However, I am a little disappointed that we don't have a little more information to go on. I'm not sure, Mr. Chair, whether it is in order for us to ask that maybe through the clerk Mr. Tilson can provide us some punishments that have been handed out in the past so that we have something to compare it to. You do have my support.
Mr. Tilson: Senator, I don't have the facts that you're looking at in volume. I can only say that in my observation, from those who were convicted, the penalties weren't adequate, in my opinion, nor was it adequate in the opinion of the veterans across this country.
Senator Batters: Thank you, Mr. Tilson, for coming to our Senate committee today, and to your two guests, who have done a very eloquent job of explaining why this legislation is necessary. I agree. When I was looking at the Library of Parliament documents that we received, I found it shockingly common how often these types of sites are vandalized. I agree that this is hallowed ground. Mr. Tilson, you referred to where you go on Remembrance Day. These are exactly the types of places you go. That also made me remember that there is another place on Parliament Hill that is special, the Memorial Chamber, which is a special place to honour the veterans. Every day, they turn the page of this book that lists all of Canada's war veterans who have fallen, and people can go there to honour the veterans in a very special place.
When I was looking through the material from the Library of Parliament, one of the cases was from my home city of Regina, from June 2009, a Leader-Post article that referred to two within a matter of weeks in June 2009, two different sites vandalized. I don't know if it had to do with D-Day commemoration or something. One of them was in the middle of June. A racially offensive message was scrawled on the war memorial west of the legislative building. Only weeks after, the cenotaph in our Victoria Park in Regina was vandalized with graffiti. What they decided to do for that legislative building war memorial was install surveillance cameras, so if they ever tried it again, hopefully they'll have some good evidence to try to track those people down.
I just bring that up from my own home community, but what I wanted to ask you, Mr. Tilson, is you referred briefly in your opening remarks to consultations you did with your veterans in your riding — and I imagine elsewhere in Canada — and their impression as to why they did not want to speak to some of these perpetrators as one of the consequences for their actions. Could you give us more detail about that?
Mr. Tilson: The people that I spoke to, albeit mainly in my riding, took the position that if these people are prepared to commit these acts on these sacred places, we don't want them around the Legion. We don't want them there. If it means rehabilitation, someone else can rehabilitate them. We're so shocked at the damage and the vandalism. We're so upset.
I had a veteran from St. Thomas or Tillsonburg, I can't remember which, before the Commons Justice Committee, and I thought he was going to explode. He was just so horrified that there was damage done to his cenotaph. It happened six months before and he was still upset. It was he that told me, one of many people, that "I don't want these people anywhere near our Legions."
There is no question this is one of the issues that we as a society need to talk about, whether it's education or rehabilitation. All I can tell you, and I have no scientific facts to rely on — it's just a few people I've spoken to — those veterans do not want those perpetrators near their Legions. So if there's rehabilitation or some sort of community service, the courts will have to have it done elsewhere.
Senator Batters: Senator Joyal was asking you about the specifics of the particular subsection you're seeking to bring in. I just noticed as I was re-reading your subsection (4.11), it describes the type of property and then it says "that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph."
Is that what was intended to limit and provide guidance to the court as to the type of monument that we're talking about?
Mr. Tilson: Yes.
The Deputy Chair: Thank you, senators. We're at the end, I believe, of our committee hearing. There are some senators who wish to ask questions on a second round, if they so wish, if they have a short question. I have just one question.
Mr. Tilson: As I say, I get into big trouble if I miss a vote.
The Deputy Chair: The whip will whip you, so you have to go.
I have one question, Mr. Tilson. As the sponsor of this bill, my one question as the chair, as you know, we have the Canadian Legion appearing before the committee tomorrow. I don't know if they appeared before the Commons committee, but I know they sent a letter to them.
Do you have any response you would like to give to the position of the Canadian Legion, which is not completely, as I read their letter, in agreement with the punishment provisions of your bill? Do you have any response? I'm sure you've thought about it.
Mr. Tilson: Essentially, with all due respect to Senator Dallaire, to me, their position is similar to his comments. I can only respond in the same way I've responded to Senator Dallaire, that I respectfully disagree. There's no question that many people in this country don't like the expression "mandatory minimums." Well, I do.
The Deputy Chair: Mr. Tilson, you're pretty straightforward in your opinion. Is there a short supplementary question that anyone wishes to ask?
Senator Dallaire: If I may, if somebody commits vandalism to a monument and we recognize it as vandalism to destroy a memorial in any sort of permanent fashion, I've commanded a garrison that had hundreds of these things in it, and I can tell you there was one occasion where people spray-painted one of them. Every one of the soldiers in my brigade, plus all the reservists — that's about 7,000 soldiers — were quite prepared to take on that person and educate them on what they thought should be done. So I'm most surprised that Legion veterans would not want to talk to these people and try to bring some sense to them as an instrument of education and prevention, because that's really the aim; we want to prevent people from doing this.
My point is, if they do find the vandal, put them in jail, of course. That is well accepted, and I agree with that entirely. But I don't agree when — I go back to drunk driving. Even with drunken driving — and you told me all about the other dimensions of it. Even then, we have a conditional discharge capability, which you don't have in your bill. Maybe you wanted to do that, to make sure that people don't ultimately have that criminal record where they need to be educated.
Mr. Tilson: No, I don't.
Senator Dallaire: Very good.
Senator Runciman: I just wanted to clarify this understanding of anyone convicted of impaired driving; they're ineligible for a conditional or a full discharge. The implication is the penalties for someone who could kill another through drunk driving are less severe, and in my view, that's just not an accurate comment to be making at the committee.
Mr. Tilson: The room is full of lawyers, but I'm sure you'll have other legal people come and tell you the answers to these things.
The Deputy Chair: Exactly, Mr. Tilson. We have the experts coming before the committee, and we'll get into that then. We all know the answer to the question, but we'll get into it as to our own opinions.
We want to thank the witnesses here today. You've given excellent presentations.
Before we begin the second panel, I want to remind committee members that we have a few items of committee business to deal with, so I would ask you all to remain for just a minute or so at the conclusion of this meeting.
For our second panel today, we welcome once again to this committee Catherine Latimer, who is the Executive Director of the John Howard Society of Canada.
Catherine Latimer, Executive Director, John Howard Society of Canada: It's a great pleasure to be here. As some of you know, because it's not my first appearance, the John Howard Society of Canada is a community-based charity whose mission is to support effective, just and humane responses to the causes and consequences of crime.
We have about 60 front line offices across the country with many programs and services to support the safe reintegration of offenders into our communities and to prevent crime. Our work helps to keep communities safe.
Thank you for the kind invitation to speak to you about Bill C-217, which proposes amendments to the mischief section of the Criminal Code to define a specific offence related to war memorials and to make it punishable by mandatory minimum penalties.
I think we all respect those who fought on our behalf to uphold our values and it is hurtful to many when commemoratives recognizing their contribution are treated disrespectfully, but an offence already exists in the Criminal Code covering such offences with penalties up to two years' imprisonment.
This bill seeks to amend a section 430(4.11) of the Criminal Code by creating the new provision of mischief relating to war memorials. It also amends the penalty provisions to create a series of increasing the mandatory minimums for repeat offences, similar to the impaired driving scheme. For a first offence, the mandatory penalty would be a fine of $1,000. For the second offence, the minimum penalty would be 14 days imprisonment and on each subsequent event, 30 days imprisonment. The maximum term of the offence would be 5 years for an indictable offence and 18 months for a summary conviction offence.
I would like to point out that this penalty scheme is usually directed at those where there is a sequential or high recidivism rate, and there's not very much evidence that those who deface war memorials repeat that activity. It's an odd penalty structure to begin with.
But the private member's bill raises two classes of concern for the John Howard Society. The first is whether it's consistent with principles of criminal law and with rights protected by the Charter. The second is whether it's an effective approach to the problem.
In relation to the first set of concerns, it should be asked whether this behaviour warrants its own unique offence definition; if so, whether there should be mandatory minimum penalties; and if such penalties are warranted, whether the mandatory penalties are disproportionately harsh and thus violate Charter-protected rights.
Good criminal law principles prefer broad categories of offences rather than particular offences addressing possibly transient concerns, news stories or public hysterias. For the law to command public assent and respect, it must display a principled, rational, coherent structure rather than a series of ad hoc responses to particular concerns. This is especially true when particular crimes naturally fall within broader categories already recognized either in the existing Criminal Code or in criminal law theory.
Law has evolved from a particularistic and narrow concentration on the endless detail of social disturbance to more modern, streamlined and rational categories. Unfortunately, the Canadian Criminal Code is already marred by too many particularisms and too little respect for general principles.
Examples of these atavistic regressions to an earlier kind of law include criminalizing not simply theft but also stealing a car, fraudulent dealing with cattle and even a separate category for the theft of drift timber rather than just filing these sensibly under the broad category of theft with a penalty regime that's cable of dealing with that behaviour.
This private member's bill, by creating special crimes of particular types of mischief, continues this unfortunate usage. It will invite those valuing other monuments who ask why they're not given equally special protections. Equally courageous firefighters, nurses or medics who die in public service will legitimately ask why the government chooses to deny equally enhanced protections to their monuments.
You will have an entire series of special interest groups coming forward to ask for similar types of protections for their monuments.
Another principle of the criminal law is that the penalty should reflect the seriousness of the crime and the degree of responsibility of the offender. Mandatory minimum penalties deny judges the opportunity to impose some proportionate penalties and they are always unfair to those for whom the proportionate penalty is less than the stated mandatory minimum. The John Howard Society opposes mandatory minimum penalties.
Increasingly, courts are finding that mandatory minimum penalties are disproportionately harsh and are striking them down as violating Charter protections against cruel and unusual punishment.
Many of these decisions have been delivered since this particular bill was passed in the House of Commons, and I think it is particularly noteworthy that there is active litigation and jurisprudence evolving around the appropriate quantum of fines and the extent to which they are compliant with the Charter protections against cruel and unusual punishment and other issues.
For example, lower courts are indicating that the mandatory victim surcharge of $100 or $200 is too heavy a toll for the indigent.
We have recent cases. In fact, Monday, February 3, Justice Patrick Healy of the Quebec court delivered a 27-page judgment carefully indicating why the mandatory minimum penalty was disproportionally harsh for an indigent person who was subjected to the $100 or $200 fine.
Similarly, Eleanor Schnall, a judge in London, Ontario, found in January that the mandatory victim surcharge constituted cruel and unusual punishment because it was excessive.
The mandatory victim surcharges have been found to violate the Charter. The imposition of a mandatory fine that is five to ten times more onerous suggests that these penalties are unconstitutional. The statutory duty of the Minister of Justice to alert Parliament to non-compliance with the Charter or Bill of Rights does not apply to private member's bills, so parliamentarians may not have been alerted to the risks posed in Bill C-217. Given the responsibility of Parliament to ensure that the rights conferred by the Charter are upheld, the penalties in this bill should not be passed.
The second category of offence is whether or not imposing penalties will actually achieve the purpose of encouraging respect for war memorials. The research is fairly clear that penalties do not deter. In fact, the escalating mandatory minimum penalties reflected in this bill already incorporate a scheme that contemplates the initial mandatory minimum penalty would not be sufficient to stop the behaviour.
Programs have been successful at helping those who have committed mischief to understand the consequences of their behaviour, to feel remorse and to refrain from such behaviour in the future. It is likely that some of the extrajudicial measures or alternative community-based sentences might be much more effective at achieving the stated purpose of the bill. MMPs would preclude their use.
In any event, public education or awareness programs might be more effective than invoking the criminal law at all in achieving respect for war memorials. It would also avoid a young person acquiring a criminal record for a thoughtless indiscretion that would compromise the contribution that he or she might be able to make to society in the future.
In conclusion, while we support the goal of promoting respect for our war memorials, it will not be achieved through the proposed criminal law reforms. The current Criminal Code provisions are adequate now, and the objectives of this bill could best be achieved through public education or tailored programs rather than through harsh mandatory minimum penalties. These reforms are inconsistent with key principles of criminal law, including broad rather than particularistic offence descriptions and proportionate penalties. The mandatory harsh penalties proposed in this bill are inconsistent with Charter protections against cruel and unusual punishment and are likely unconstitutional.
The John Howard Society of Canada urges you not to pass Bill C-217. Thank you very much.
The Deputy Chair: Thank you.
Senator Runciman: Do you and the organization that you represent oppose the concept of mandatory minimum penalties in all cases?
Ms. Latimer: We oppose mandatory minimum penalties, yes.
Senator Runciman: Even in impaired driving cases? What about murder?
Ms. Latimer: We oppose mandatory minimum penalties in all cases. There are some very good examples in the murder provisions where in fact juries would have preferred not to impose the mandatory minimum penalty. The case of R. v. Latimer springs to mind, not simply because it's a similar name to mine but certainly in that case there was a lot of suggestion from the jury that they would have preferred to impose less than the mandatory minimum. I think some latitude in every case would be a good idea, and I think that it could be easily achieved by having a provision that required the judge to impose the mandatory minimum unless its imposition would constitute a disproportionate penalty and then allow the judge to impose what, in fact, would be a proportionate penalty given the specific fact situation.
Senator Runciman: You talked about deterrence. Do you believe that people are capable of being deterred from committing crimes?
Ms. Latimer: I believe that, yes, but it usually isn't the quantum of the penalty. What serves as a fairly good deterrent is the likelihood that you're going to get caught. I noticed that with the previous set of witnesses you were speaking about impaired driving, and he was making the argument that it was the increase in penalties that led to the deterrence when there is a lot of evidence to suggest that it is really the certainty with which you're likely to be caught that actually has the deterrent effect rather than then quantum of the penalty. So yes, I do think there is the capability of some deterrence, but it's not affected really in the quantum of the penalty.
Senator Runciman: You referenced proportionality in your submission as well. This is obviously a very subjective thing, but you're suggesting for that a fine for defiling a monument to our war dead, $1,000 is a disproportionate penalty, and I think that most Canadians who care about that, and I think most Canadians do, would have perhaps a disagreement with that perspective.
Ms. Latimer: Well, I found the actual wording of Justice Patrick Healy in the recent case of R. v. Cloud to be very illuminating on that. He was indicating that the penalty needs to be proportionate to the nature of the offence, but sentencing principles include individualization of the penalty. If the person is incapable of actually discharging the penalty that's imposed on the person, then that becomes cruel and it becomes disproportionate in that case.
You would want a proportionate penalty, so some deprivation of property and liberties that equalled the amount of the harm that was caused and the degree of responsibility of the offender, but it may be unwise to use fines as the way of discharging that quantum of penalty if the person is incapable of paying that fine.
Senator Runciman: What about as an alternative shaming? How would your organization approach that?
Ms. Latimer: Our mandate is fair, effective and humane, and there's been a lot of historical examples where you have shaming — the stocks, scarlet letters, all of that — all of which we had hopefully thought was long behind us.
Senator Runciman: There could be other measures.
Ms. Latimer: I think there may be others.
Senator Runciman: That could be more humane.
Ms. Latimer: There is an element of restorative justice that has a component of someone recognizing the harm that they've done, and it's a type of individualized, personalized sense of shame, which is different than the community imposing shame on someone for what they've done.
Senator Runciman: Do mandatory minimum sentences prohibit the Crown from agreeing to use alternative measures under section 17, which, if the accused admits responsibility, there's no criminal record attached?
Ms. Latimer: Generally, if there's a mandatory minimum, the other sentences are not available. You have to go with the mandatory minimum. You could add it on, but basically the person would have a fine and it would not be commuted.
Senator Runciman: So 17 would not apply.
Ms. Latimer: No. Now, there are ways to do it. For example, what they often do now is have a conditional discharge and part of the condition that the person make a payment to a charity in conjunction with the conditions of the discharge, and then the record disappears and the person has made some financial offering in association with the wrongdoing, but it isn't a fine per se.
Senator Dallaire: I'm not going to ask you questions of extreme that seem to be floating around here. I'm trying to remain within the realm of what is reasonable when we face a circumstance like this. As an example, are you aware of how countries with which we have a certain relationship, even values and concepts, who have gone through wars on their territory of a far more extent than the War of 1812, and I notice we didn't mention the Plains of Abraham and 1759, which is significant, but how do they handle this?
Ms. Latimer: I was unaware of much of that until I was reading the paper and saw you quoted on some of that.
Senator Dallaire: I'm not sure that's a good response.
Ms. Latimer: You are much more of an authority on that than I am. I know what is happening within Canada, but I'm not sure of the comparative issues around this.
Senator Dallaire: I see. We are quite aware that we may have 6,000 monuments, but they've got a lot more with enormous significance as well. Apart from the Americans who recently had a spate of incidents due to issues of people deliberately going against the war effort in Afghanistan and Iraq, they didn't even have one, let alone the Brits.
The second one is appropriate because we are a society that cares for people who take care of other people, people who are prepared to make a sacrifice, be it in foreign wars or even within our society, keeping it just and responsible.
We have a monument in Quebec City that dates back to 1889. The monument is for two military people who were part of the battery that was deployed to a huge fire in Quebec City. They were setting off charges to make fire breaks, and they died doing firemen's work. So the firemen have essentially adopted that monument, even though they were two military personnel. Do they fall under this thing?
Ms. Latimer: The way I read it, they would not. They are military personnel, but they didn't die in the consequence of a war.
Senator Dallaire: Thank you. We deployed close to 3,500 troops during the Oka crisis. One policeman was killed. There were no soldiers killed, but there has been a memorial consideration for that policeman.
With an insurrection in our own country, if someone dies in trying to prevent crises and there was a monument created for that, would that monument fall under this provision?
Ms. Latimer: I wouldn't think so, unless there was some sort of declaration of civil war or some sort of declaration that would define something from a domestic insurrection or riot and convert it into some form of armed conflict. This seems to be related to wars and not necessarily to people discharging obligations in pursuit of domestic peace and civility.
Senator Dallaire: Annually, we have a big parade on Parliament Hill for policemen. I've been invited and I have attended. I have not seen a monument for policemen; however, it is rather interesting that we deploy 4,000 policemen when one is killed. We can't even deploy that many for a soldier. In fact, for many years we were not authorized to deploy more than 10 soldiers if a soldier coming back from combat was being buried.
We've got this incredible outpouring for people who protect us, who are armed and in the face of a potential enemy of sorts. They are in danger and protect us on a daily basis. We've seen massive interest in wanting to recognize that these people serve us, and when they are killed, it is a major event. If we did suddenly have monuments for them, would they fall under this provision?
Ms. Latimer: No.
Senator Dallaire: Do you find the skewing of this provision unusual?
Ms. Latimer: I find the definition a bit vague. For example, the designation of the Highway of Heroes is part of the highway, which may well relate to some of the people who died in combat. Is that protected under this set of provisions? It's not exactly the traditional monument.
As I walk up to the Hill, there is the cenotaph, which clearly would be protected, but then there are all kinds of statutes of — I'm not a military historian, but it looks like Laura Secord and other people in uniform. Is that a war memorial? Some of them didn't die as the result of war. Can you throw your egg in this direction and not get the $1,000 fine, and if you threw it in that direction, you would?
From someone who is worried about trying to prevent crime, it's difficult to rationalize why the young person or a person who's venting anger and really isn't intending — I don't think they really understand the consequence and the hurt they are causing veterans, who see this as a level of disrespect. It's difficult to explain to them why this is more sacred than the other.
Senator Plett: Thank you for being here. My first question will be somewhat tongue in cheek, but is it what you don't understand about the bill that you don't support or what you do understand about the bill that you don't support?
Ms. Latimer: What I do understand about the bill I don't support.
Senator Plett: We all know that even this bill still allows — this was discussed with the previous witness — for plea bargaining with the prosecutor. If a young person was drunk and this was a spur-of-the-moment thing, a one-off, the prosecutor may say, "If you do some public service, I won't bring the charges forward."
You say there is not a whole lot of history of repeat offenders here, so if we don't have a lot of repeat offenders — and, obviously, the scale of mandatory minimums is somewhat irrelevant. It doesn't hurt for them to be there because if there are repeat offenders, we need something. Whether it's too harsh is a separate thing.
The mandatory minimum sentences proposed, in my opinion, are actually quite minimal for a crime that the general public indeed finds very offensive. For that reason, I don't feel that the mandatory minimums are an issue in this case.
I guess my question is: Could you think of an example — and I think Senator Runciman touched on this a bit — where you feel if a person of complete sane mind, fully sober, 25 years old, not a juvenile, intentionally goes and desecrates a war monument, shows a complete and total lack of respect, can you tell me what you would think would be a fair penalty — and I know you would simply say "mandatory minimums are not good." But is $1,000 a harsh penalty for that? And if it is, what would be a fair penalty?
Ms. Latimer: Whether $1,000 is a harsh penalty depends on the person's capability of paying for it. Mandatory minimum fines are one of the hardest edge type penalties because crime is so positively, highly correlated with people who are poor.
You will have, for example, street people who may well be sleeping around a cenotaph because there are vents there, there may be heat and there may be no other place for them to go. These people do not have access to public washrooms. If nature calls and they get caught, which they likely would, they are going to be looking at a $1,000 fine. That $1,000 fine would be bumped up by the victim surcharge because it's an additional 30 per cent of any fine imposed, so you are now at $1,300. And we are hearing judges across the country saying that the mandatory victim surcharge of $100 is excessive in some of these cases.
So by the time you add this all up, you're looking at a pretty big penalty for someone who is on social assistance or disability or whatever.
I would encourage you to read R v. Cloud, which is the decision that Judge Patrick Healy just rendered in relation to these victim surcharges. Certainly the penalty was not disproportionate to the seriousness of the offence he caused, which included a mischief offence. There was one mischief and one assault with a weapon charge together. He found that the mandatory victim surcharge that was being proposed would be harsh because of the financial circumstances of the person, not the seriousness of the offence, but the individualized capacity of the accused to actually pay it.
Senator Plett: That certainly didn't touch on the question that I asked, because we both know the person could have turned the other direction if nature called. We've all slept outside and gone behind certain trees. He doesn't have to urinate right at the monument.
I was talking about a 25-year-old healthy man out there that has the wherewithal, and you used an illustration of a poor homeless soul who was sleeping at the monument. That isn't the question.
Ms. Latimer: What is the financial circumstance of the 25-year-old?
Senator Plett: The fact of the matter is if he can't pay the fine, there is a possibility of going to jail and do it that way. My question is still: What in your opinion would be an acceptable punishment for that individual?
Ms. Latimer: You would have to look at a lot of factors, and that's why the John Howard Society would like judicial discretion in assessing what's a fair penalty.
Let's say this guy has a strong record of violence or vandalism or mischief or whatever it happens to be, and this is not his first offence. Then $1,000 would not be out of line.
A first-time vandalism or mischief offence, a $1,000 penalty would be pretty harsh compared to what is imposed generally.
Senator Plett: Let me first say I support that maybe this bill should have been broadened to include some monuments, and I said that to the previous witnesses. However, that's not what we have in front of us.
Would the John Howard Society support this bill if all the groups that you suggested were included in this?
Ms. Latimer: I think probably the John Howard Society would support the existing Criminal Code provisions coupled with some program support and some public education to really focus in on why it's particularly hurtful for the war memorials to be vandalized.
Do we know who's vandalizing them? My background is in youth justice, and generally it's young people who are angry, who are venting against particularly what other people hold sacred. So it's not necessarily against them. It's what they think will have shock value or what will demonstrate their anger more clearly. You really need to work with their anger and make sure it is not projected outwards in a way that is causing psychological distress to people who feel that they're being disrespected.
Senator Plett: A $1,000 minimum would also have some shock value.
Senator Joyal: Welcome, Ms. Latimer. You have referred to section 430(4.1) of the code which relates to mischief in relation to religious property.
Ms. Latimer: The broader mischief section, yes.
Senator Joyal: Not 430(1), which is mischief generally, but mischief relating to religious property.
The point I'm wrestling with in relation to this bill, which is in addition to (4.1), it's (4.2), which deals with two elements of reality, which is a cemetery. If this cemetery is the object of the mischief under religious property, the author of the mischief has to be proven to have been motivated by bias, prejudice or hate based on religion, race, colour, national or ethnic origin. We would have to have another paragraph immediately following whereby the mischief does not need to be motivated. The mere fact of the mischief is the crime.
The reality of many of those cemeteries is that in a cemetery there is a section for the soldiers and a section for general public. It means that for the same mischief in the cemetery, in one part of the cemetery you would have to be proven being motivated by bias to incur a maximum penalty of 10 years, and in the other one you would be immediately responsible for $1,000. If you are not motivated by hate or religious or other motive, you would be subjected to the penalties under the mischief 430(4.1).
I tried to ask that question of the sponsor of the bill, because it seems to me that we will have three different sets of penalties for the same act in the same place involving the same construction. It seems to me that when one will be in front of a court to argue the difference, the differences in the penalties will be taken into account by the judge in determining if that penalty meets the charter test, yes or no. The whole of section 430 will be taken into account by the judge in measuring the harshness of the penalties.
To me, that is essentially the legal question behind this, and there is no doubt that the Crown attorney will be faced by that situation, will be able to elect one of the three penalties that are included under 430. That seems to me to be a very important reality with that bill that, of course, might be beyond the good intention of sponsor. I don't question the intention behind the bill, but the reality of the code is what it is, and it will be implemented on the basis of what it says.
Ms. Latimer: I think you raise a very sound point, and I think it's one of the problems with private member's bills in that they don't come forward through an analysis of how it fits into the broader Criminal Code scheme that you're working with. So you do get what look like glaring inconsistencies.
It raises some very strong points. For example, what constitutes mischief? If pacifists were putting placards in front of a war memorial saying, "Don't kill for me," or indicating their passivism in the face of what is understood by some as a pro-military monument, you would generally think that would be captured and protected within the free speech argument, but here, because there is no element that the motivation of what is prompting is not included in this bill, it could easily be captured in this bill, and legitimate dissent or discussion or demonstration, those people may well find themselves out-of-pocket $1,000.
Senator Joyal: In my preoccupation on the basis of previous decisions in relation to penalties, the fact that we are elevating the bar for this offence in comparison with the damages that are done to exactly the same cemetery is something that the court will certainly ponder when they have to decide if the penalty is too harsh or not.
Essentially, it is the same cemetery. There is an unknown dividing line between the left and the right. In one case, you will have to prove motivation, for example, anti-Semitism, refugee, on some part of the cemetery, and then on the other part of the cemetery, just pulling down a cross. In one case, you will have to prove the anti-Semitism, and in the other, just the mere fact of pulling down the cross is seen as harsher. It seems to me there is no balance between the hate motive in one type of crime in the same place and the other aspect of mischief, which is essentially maybe destruction or, as one would say, one other kind of mischief you might have done in that section of the cemetery.
That's why I feel there is something there that will create some problem with the interpretation in the court and will be argued. Maybe what the Crown attorney will do when they see that, they will go for 430(1), which is easier and will not embarrass with all the niceties between 430(4.11) and 430(1.1).
I think there will be a problem there. There's no question about that. Even though I subscribe to the general objective of identifying the wrong of incurring destruction on military cenotaph or war memorials, the way it is done in that section of the code, in my opinion, won't meet the objective that the sponsor of the bill seeks to get with the interpretation of that section, which is complex.
The Deputy Chair: In other words, the mens rea becomes the actus reus, just like a regulatory offence in this bill. The mens rea is proven with the actus reus.
Ms. Latimer: You don't have to prove the malicious intent.
The Deputy Chair: In conflict with the first part of what is in the Criminal Code right now, the part that precedes this section. I knew that was your point.
Senator Joyal: We will have lawyers come to enlighten us on that because we will have real legal problems with this.
The Deputy Chair: You're one of the best lawyers around.
[Translation]
Senator Dagenais: Thank you, Mr. Chair, Ms. Latimer. Before I get to my question, I would like to tell Senator Dallaire, whom I hold in the highest regard, that I attended the famous ceremony to honour police officers killed in the line of duty. The memorial, which is right next to the Centre Block, lists the names of all the police officers. We will go over and visit it together, Senator Dallaire.
I am going to pick up on an argument Senator Boisvenu used with our previous panel. When a police officer is killed, the accused perpetrator is charged with first-degree murder, but the difference is this: it is murder. But because it was a police officer who was killed, the sentence is much harsher.
There is no such thing as a perfect example, but I would like to draw a parallel, if I may. If you desecrate a memorial in a cemetery, that is one thing, but if you desecrate a war memorial, you are attacking a symbol. Should that not come with a harsher penalty, then?
[English]
Ms. Latimer: You raise an interesting point that goes to what constitutes harm. There certainly is harm connected with something that hurts our sense of values, but usually in criminal law the harm increases if an individual is suffering.
If you hit a veteran, it would be much more serious than if you simply had an act which devalued something they held in high regard. The values of hurting are challenging if it's a violation of values as opposed to something that actually injures a person. I'm not entirely sure. The reason we value a police officer is because they are usually killed in the line of duty when you go to first degree. They are actively stepping in front of a bullet to protect someone else or to enforce the peace. It is different than saying we value our veterans because they defended us in a war and therefore anybody who offends against what they hold dear constitutes a more serious offence than if they are offending something that the people who survived the Holocaust hold dear.
When you get into this particularism, you'll find a lot of people stepping forward. We don't have commemorative statues unless people really care about remembering what happened there. They would all see this as a violation of a value that they hold dear if there is a desecration of that particular memorial. I'm not sure how you say if what the veterans hold dear is of higher or lesser value than what survivors of a terrorist attack hold dear, in terms of a 9/11 or Air India commemoration. It's very difficult.
Senator Batters: First, I have to start out by saying I had a little bit of shock value today by something you earlier said. I frankly can't believe what I heard when you used the excuse that someone might have had nature call and they don't have access to a public washroom, and that they would use a cenotaph or war memorial when they have an entirely huge park to pick many other spots. I find that very offensive; I'm sorry.
The question I have is dealing with a fine option program and being an avenue that people can pursue in many Canadian provinces. Unfortunately that is not available in Ontario. Is the John Howard Society doing anything to lobby the Liberal Ontario provincial government to put that type of fine option program in place so people who may not have the ability to pay a mandatory minimum fine of some significance would be able to do that?
Ms. Latimer: Are you from Saskatchewan?
Senator Batters: Yes.
Ms. Latimer: The John Howard Society in Saskatchewan does offer a fine option program, but as you know it requires the concurrence of the provincial government.
We are certainly working with provincial governments to find ways to put into operation, in an effective way, some of the more recent provisions that are causing significant problems like the victim surcharge, which could be dealt with through a fine option program. But as you point out, many of them don't have fine option programs. I think Ontario, B.C. and a few others do not have fine option programs. People are really hard pressed to come up with an alternative.
Senator Batters: Are you trying to get the Ontario government to put that program in place?
Ms. Latimer: The John Howard Society of Ontario would be a better place to answer that question, but the executive directors from the provincial John Howards have met to discuss what arguments would work well in trying to persuade governments that it would be a cost-effective approach for them to have fine option programs rather than any of the default measures that might be available.
Senator Batters: In your view, a fine option program is a good option to have available for people in those circumstances?
Ms. Latimer: Yes, but if you're talking about the victim surcharge —
Senator Batters: I wasn't talking about that.
Ms. Latimer: Fine option programs, generally? Absolutely, yes.
The Deputy Chair: That brings to an end this meeting of the committee. We want to thank Catherine Latimer for appearing here. As always, an excellent presentation and we've learned a lot.
I'd ask members of the committee to remain here for a minute to do some in-house business, thank you.
Could I please have a mover for the following motion: That a legislative budget application for the fiscal year ending March 31, 2014 in the amount of $7,894, which includes $4,394 for the committee to travel to Brockville, and $3,500 for general expenses be approved for submission to the Standing Committee on Internal Economy, Budgets and Administration.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Deputy Chair: Adopted, carried.
We now have consideration of a draft agenda. The steering committee has listed a review for the committee to undertake and proposes the following: One, the Referendum Act, which you see before you, statutory review of an act to amend the Referendum Act.
Senator Joyal: Is it referendum in relation to Quebec or in relation to the next election?
The Deputy Chair: Section 40(1), statutory review of the act. Is it a five-year statutory review? It was supposed to have been done in 1995 but it was just overlooked by the House of Commons.
Can we please have a mover for the following motion?
That the chair be authorized to seek authority of the Senate for the following order of reference:
And yes, Senator Joyal, in answer to your question, this is what you desire to be reviewed.
Senator Batters: I just have a question on this. I'm wondering whether we need to proceed with this today, or can we take a little bit of time and discuss this at our next meeting since I have never seen it until five minutes before?
The Deputy Chair: The steering committee did a comprehensive review but that was in camera. Do you wish to delay this?
Senator Batters: Would that be okay just to put it over to the next meeting? I would like to ask a couple of questions about it, in private.
The Deputy Chair: We can wait on the request of Senator Batters; is that agreeable to the committee?
Senator Joyal: Absolutely. I support Senator Batters.
The Deputy Chair: She can examine it with her legal mind.
Senator Joyal: We could postpone it until tomorrow.
The Deputy Chair: Until tomorrow?
Senator Joyal: Yes.
The Deputy Chair: We'll deal with it following the committee meeting.
Senator Joyal: Or the week following next.
Senator Plett: I think Senator Joyal said tomorrow night — not tomorrow night.
The Deputy Chair: No, no, tomorrow morning. Tomorrow we have the Royal Canadian Legion, the Commonwealth War Graves Commission, Criminal Lawyers' Association and Canadian Council of Criminal Defence Lawyers all appearing before the committee tomorrow morning at 10:30 a.m. We'll see you all then.
This meeting is adjourned.
(The committee adjourned.)