Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3, Evidence - February 26, 2014
OTTAWA, Wednesday, February 26, 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 clause-by-clause consideration to the bill.
Senator George Baker (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good day and welcome colleagues, invited guests and the members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. My name is George Baker, and I am the deputy chair of this committee, sitting in for our chair, Senator Bob Runciman.
I wonder, before we begin, if we could have each one of the senators around the table introduce themselves, so from my right, starting with the senator from New Brunswick.
Senator McIntyre: Senator Paul McIntyre, New Brunswick.
[Translation]
Senator Dagenais: Senator Dagenais from Quebec.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Day: Senator Joseph Day from New Brunswick.
[English]
Senator Plett: Senator Don Plett. I'm from Manitoba.
Senator Runciman: Bob Runciman, Ontario, Thousand Islands and Rideau Lakes.
Senator Frum: Linda Frum, Ontario.
The Chair: Thank you, senators. We are meeting today to complete our examination of Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials). If passed, in the summary it says that the bill would 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 a meeting concerning the actual clause-by-clause consideration of this bill after we've heard from a sufficient number of witnesses.
As a reminder to those watching, these committee hearings are open to the public and are available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."
We are now at the stage where the committee will go through the bill clause by clause. Before we begin, I would like to make members aware that we have an official from Justice Canada in the room, who is now seated at the end of this table, in case members have any technical questions to raise as we go through the bill clause by clause.
The bill has only one clause but it's a long one with a number of components. As we begin, if any members have specific questions about the whole or part of the clause, I would remind members that the accepted practice is for us to proceed in the order of the lines in the clause.
As everybody knows, no notice is required to move amendments. I do know, however, amendments will be moved to this bill as we proceed through that one clause. As you already know, of course, you don't have to give notice prior to moving amendments. Nonetheless, it would be very useful to this process if a senator wishing to move an amendment indicates if it will affect other parts of the same clause. Also, because clause 1 contains a number of parts, if anyone wishes to move an amendment, I will verify whether any senators had intended to move an amendment to an earlier part of the clause. If senators do not intend to move an amendment to an earlier section, they will be given the chance to do so.
Finally, I wish to remind members that if there is any uncertainty as to the results of a voice vote or show of hands, we can request a roll call vote, which provides clear results. If there are no questions to the above statement, which was prepared for me be our very able clerk and which I read word-for-word, then we can proceed with clause-by-clause consideration.
Since we took the names at the beginning, we have been joined by our esteemed colleague, Senator Joyal, on my left, who has been a committee member for many years and is a great authority on the law in this country.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials)?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1 carry?
Senator Day: Mr. Chair, I want to indicate that I have a proposed amendment to line 15. Having heard your words, you may wish to determine whether there are to be amendments proposed for the lines preceding line 15.
The Deputy Chair: Does anyone want to propose an amendment to any line preceding line 15? Senator Joyal, you were about to say something a moment ago.
Senator Joyal: Yes. I would like to ask Senator Day if I may ask a question of our witness from the Department of Justice because it relates to some of his amendments. Since we have the opportunity of having a representative from the Department of Justice, I would like Mr. Zigayer to look at section 430(4.1), mischief relating to religious property.
The Deputy Chair: We'll wait until our witness gets out that section of the Criminal Code. Which section is it, senator?
Senator Joyal: Section 430(4.1) is entitled "Mischief relating to religious property."
The Deputy Chair: What is your question to the witness?
Senator Joyal: In that subparagraph, there is mention of protection from mischief in a cemetery, which means in the context of religious property — any kind of cemetery of a religious nature.
My question to you is: The bill contains the mention of cemetery at line 16 of (4.11). Since cemetery in the bill is not qualified as being religious, it could be interpreted by a Crown attorney such that an accused would be faced with mischief to a cemetery to choose section 430(4.1), which has no minimum penalty. The penalty attached to (4.11) in the bill is essentially guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years, where the old one would be guilty of an offence punishable by summary conviction and liable to a term of imprisonment not exceeding 18 months.
In other words, the Crown attorney could select to prosecute on the basis of either (4.1) or the new (4.11), considering the fact that "cemetery" is not defined. In the same cemetery, you could have a section devoted to the burial of soldiers while another section of the cemetery might be for those who belonged to a particular church or to no church at all.
That's why I feel there's confusion in this bill. If adopted the way it is drafted, it would be possible for the Crown to select one or two sections of the Criminal Code under that heading.
Michael E. Zigayer, Senior Counsel, Criminal Law Policy Section, Justice Canada: Senator, I would make two remarks. First, I've had the benefit of seeing the amendment that Senator Day is going to come forward with, and it may address the concern you have.
Second, subsection (4.1) of section 430 of the Criminal Code contains a very specific motivation: the mischief is motivated by bias, prejudice or hate. That is a distinguishing factor or exceptional feature in that section that we don't see elsewhere in the code.
Senator Day's proposed amendment may address your concern. Again, I'm interpreting what I've heard in the last few days of your witness testimony, specifically the sponsor of the bill. His concern was not so much with the cemetery but with a monument located within the cemetery. It doesn't matter what kind of cemetery but if there's a monument or something else that memorializes the military in some fashion, then it is the property that he seeks to provide specific protection for with his new offence.
The Deputy Chair: Are you saying to Senator Joyal's question that if the Crown were to proceed as Senator Joyal had suggested, there would be a new element in the offence, which would have to be proven — one of mens rea, or intent? Is that what you're saying? That would be different than if they proceeded with the suggested amendment that we're dealing with before the committee.
Mr. Zigayer: You would have that extra element to demonstrate that the offence was motivated by this bias as explained. It's a more difficult case to prove. It would be easier to prosecute the amendment that's proposed in this bill.
The Deputy Chair: It would be easier to prove the mandatory minimum provision. Is that what you're saying?
Mr. Zigayer: You might have an argument over the mandatory minimum but the offence would be easier to prove.
Senator Joyal: I would like to come back to the stated intent of the sponsor of the bill. I concur with you that that might be its intent, but when the court has to give an interpretation to the new section 4.11, they will have to read what is in the text, per se. When I read the text, I wonder if it is as clear as you said and that, in fact, it is a cenotaph or a memorial in a cemetery, which would exclude, for instance, the identification of a burial. In other words, if there is a stone that commemorates the fact that the person who is buried there served in the war and so on, in that context, would it be as much coverage as it is when you say it mentions a war memorial or a cenotaph? In other words, I wonder if the fact that it mentions only "or a cemetery" covers everything or if it covers only the part of the cemetery or the monuments in the cemetery that are a cenotaph or war memorial.
Mr. Zigayer: As currently drafted, it's the whole cemetery. I think that the specific goal of the sponsor of the legislation was not to address the whole cemetery but to address monuments to persons who had died in war. As currently drafted, it's wider. It's the full cemetery. I understand that Senator Day has a proposed amendment that would narrow it or clarify that point.
Senator Joyal: Thank you.
The Deputy Chair: Thank you. Mr. Zigayer, are we pronouncing your name correctly?
Mr. Zigayer: "Zig-air," like an airline.
The Deputy Chair: Thank you. You've had a chance to look at an amendment that's about to be proposed. Senator Day, line 15?
Senator Day: Line 15, and I wonder if we could ask the clerk to pass out amendment L1, which explains line 15.
The Deputy Chair: Is this the amendment that would address the question raised by Senator Joyal?
Senator Day: I believe it does.
The Deputy Chair: The clerk tells me that you have to read it in both English and French.
Senator Day: I move:
That Bill C-217 be amended in clause 1, on page 1, by replacing line 15 with the following:
"grounds of such a building or structure or in a".
[Translation]
In French, it reads "que le projet de loi C-217 soit modifié à l'article 1, à la page 1, par substitution, aux lignes 13 à 17, de ce qui suit:
« . . . cénotaphe — ou encore d'un objet servant à honorer ces personnes ou à en rappeler le souvenir et se trouvant dans un tel bâtiment ou une telle structure, sur le terrain où ceux-ci sont situés, ou dans un cimetière, est coupable d'une infraction »."
[English]
The Deputy Chair: Thank you, Senator Day. I wonder if you can explain to us what all of that means.
Senator Day: Well, if you look at line 15, right now the only change I'm proposing in the English version, and I'll explain in English, if I may, Mr. Chairman, is adding at the end of the line ", or a cemetery." You will see there is a comma before the "or a." The way this appears now, that could be taken to go back and you're talking about a memorial or cenotaph or an object or a cemetery, just the way this is worded.
What I'm proposing is that by putting in the wording "or in a", which would be the wording I'm proposing, then that relates to the object, and that ties it in to a cemetery where there is an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure or in a cemetery. It's the object, and that would probably be a headstone or a monument in a cemetery. I think that's what was intended.
[Translation]
In French, it is "dans un", "dans un cimetière."
Before, it was "d'un cimetière."
[English]
The Deputy Chair: Does anyone wish to comment?
Senator Runciman: For the benefit of all of us, could you give us a realistic example of how this would impact as it is currently worded and with respect to the amendment put forward by Senator Day? What's the distinction there? If it's a general, broader definition of "cemetery," if someone damages a monument, the distinction here is that if it's something that's dedicated to someone who lost their life in a war, the damage to that individual monument is distinct from what might happen to anything surrounding it. Is that the gist of it?
Mr. Zigayer: I think it's more consistent if you read the whole provision, when we talk about property that is a building, a structure or a part thereof, so it's one of those things as opposed to the whole however many acres the cemetery is. I think we're looking at a man-made object located in the cemetery.
Senator Runciman: Okay, but I'm having trouble getting my head around the negative consequences of the wording as it is currently framed in the bill.
Senator Day: If I may, it would include all cemeteries, irrespective of whether there's anybody buried there who was killed in a war or not. That's the way I would read what appears. You have to go back to ", or a cemetery" and you have to go back up to what that's flowing from.
The Deputy Chair: It still is a consequence of a war.
Senator Day: It's a memorial or cenotaph or an object, and the object is the consequence of the war, or a cemetery. I don't think it was intended to include that. I think the "or in a cemetery" was to relate to the object and defining there is an object or a marker or something in a cemetery. You have to read this many times before you come to that conclusion but, once you do, you realize that this could be misinterpreted and is much broader than the proposer of the bill intended.
Senator Plett: I'm with Senator Runciman. If I read the entire 4.11 and read words such as "primarily serves as a monument to honour persons who were killed or died as a consequence of war," I go on and read "such a building or a structure," which refers to the intent of the bill very clearly, "such a structure or cemetery." Even if you take the word "a" out, it doesn't change the meaning. "Such a building or structure or a cemetery" could be referred to as "such a cemetery" and the whole thing refers very clearly to the fact that it is a war monument, war memorial, war headstone, whatever the case may be.
I fail as well to see where this changes anything by putting the word "in" in there. Rather, I think the word "cemetery" in this case is such a cemetery.
Senator Frum: I have to say that now that I've read a few times, it is as you recommended, Senator Day, and I think what is being modified here is the location, that is located. Where is it located? It's located in a building, structure, cemetery. That's all. I think it's very clear.
Senator Day: That's why I have my amendment.
Senator Frum: "That is located in a building or structure or a cemetery."
Senator Day: Or a cemetery.
Senator Frum: Yes, or a cemetery, but it says "or a cemetery." It doesn't say "or in."
Senator Day: No, it doesn't. That's what I'm proposing because, otherwise, there's a comma before the "or," so you can't read an "in" in there.
Senator Plett: That's splitting hairs.
Senator Day: That's why we do these things. We split hairs all the time. That's why we're doing this, Don. It is intended to improve it.
Senator Runciman: I'm really concurring with Senator Frum because, when you read this, it says it is located "in." The word "in" is already there. Your interpretation is that it isn't because there's a comma before "or." The courts, I suspect, and anyone else reading this, would believe the word is already there, and this suggestion is really redundant.
Senator Batters: I'm happy that we're not discussing the meaning of the word "is" in this case, but I think the important part is that we have to go back to the very beginning of this subsection to say ". . .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. . . ." That's the main part of it, and then the rest of it is expanding or further describing that. In that main portion, you're saying that it has to basically be a war memorial or something very similar to that, so I don't think the amendment proposed is necessary to expand further on that.
Senator Joyal: I think that this discussion might appear Byzantine, but we're dealing with the Criminal Code. We're not dealing with a general statute. When the courts are faced with an interpretation, they will look into the way that it is phrased. Even though a comma seems to be innocent in the drafting of the code, it might mean the separation between two different ideas. I think that, as much as it doesn't change the intent of sponsor of the bill, it makes it clearer to avoid any kind of misinterpretation. I strongly support that we amend the bill the way it is because it respects the original intent of the sponsor and will avoid, in the future, any discussions about the scope of the bill in relation to what happens in a cemetery where there is a memorial, a cenotaph or any commemorative elements in relation to a war.
The Deputy Chair: Any further comments?
Senator Plett: Question.
The Deputy Chair: I will put the question. Is it your pleasure, honourable senators, to adopt the motion of this particular amendment? Those in favour say "yea."
Some Hon. Senators: Yea.
The Deputy Chair: Against, "nay."
Some Hon. Senators: Nay.
The Deputy Chair: I say that the nays have it, so the amendment has been defeated.
That takes care of line 15 in clause 1. Do we have further suggested amendments in clause 1? Senator Day.
Senator Day: Thank you, Mr. Chair. I wonder if the clerk could pass out L2.
The Deputy Chair: L2. You're going to have to read this in English and in French, Senator Day, and then you're going to have to explain the purpose in introducing this amendment.
Senator Day: This is line 16, and this is another way of trying to achieve the intent of the sponsor of the bill. Since we weren't able to agree to L1, which I thought was the simplest way to do it, this may be a clearer way to explain the intent, that is by adding some words to describe what I believe Mr. Tilson was intending with the legislation. It reads:
That Bill C-217 be amended in clause 1, on page 1, by replacing line 16 with the following:
"cemetery or section thereof that is dedicated to those persons is guilty of an indictable offence or an".
[Translation]
In French, it would be:
« ou d'un cimetière ou toute section de celui-ci qui sont consacrées à ces personnes, est coupable d'une infraction ».
[English]
It now appears "cemetery is guilty," et cetera. We are just adding in "cemetery or section thereof that is dedicated to those persons. . ." so that we can understand that it's either a cemetery or a section that is dedicated to those persons who have been killed during war, and those persons is defined earlier on in the paragraph. This is just another way of trying to define what the cemetery is that we are talking about here. It could be the entire cemetery or a part of it, but it is dedicated to those people who were killed in the war.
The Deputy Chair: Would this have the same effect as your first amendment that was not passed?
Senator Day: Yes, it would, in my view.
The Deputy Chair: You're trying to do by the front door what you couldn't do by the front door before.
Senator Day: There's more than one way to skin a cat is another way to see that.
Senator Runciman: I think this is redundant. I think the clause already provides that understanding, in my interpretation of it. If you read: "Everyone who commits mischief in relation to property. . . building, structure or part thereof that. . . serves as a monument to honour persons who were killed or died as a consequence of a war," that is already pretty clearly as part of the clause. So I don't think what Senator Day is proposing here is necessary in terms of understanding the intent of bill.
[Translation]
Senator McIntyre: Again, I think the clause has to be read in its entirety. As I understand it, beginning on line 4 of the subsection, we are talking about a "monument to honour persons who were killed or died as a consequence of a war." I do not see a problem with that subsection.
[English]
The Deputy Chair: Senator Joyal, do you have any further comment regarding this amendment?
Senator Joyal: Again, the important thing is that it doesn't change the intent of the bill but would avoid, in the future, any hesitation about the interpretation of the scope of the bill in relation to a cemetery. That's essentially what I mean because most of those cemeteries are split into war memorials or war sections and, of course, sections open to the other group of people. Making it very clear that it is a section of the cemetery where the persons who have died in the war are buried makes it, in my opinion, very clear to understand that this is only those sections of the cemetery that are covered by the intent of the new section of the Code. That's why I think it's an important element for anyone who will have to give interpretation to that, especially in relation to "cemetery" because, as we understand, I think there are 6,000 cemeteries in Canada where there are soldiers who have been war buried. I think it might seem innocuous when we look into the section the way it's drafted, but, in fact, it could give rise to interpretation on a wide scale that we cannot foresee at this stage. That's why I think that the proposal of Senator Day's will avoid any kind of misinterpretation or hesitation in the future. It doesn't change the intent of the bill, nor does it gut the bill. It is essentially to make sure that the bill is more precise and that those who have to interpret it won't have any hesitation to read the bill and to conclude on the mischief that is alleged to have been done.
The Deputy Chair: Any further comment before Senator Day concludes?
Senator Day: My point with respect to both of these proposed amendments — and I have others but they deal with other subject matter — was to try to clarify for whoever has to interpret this legislation. We support the principle of the bill, but, if the judge is interpreting this and he or she sees any ambiguity, then it gets struck down. If that happens, then we'll have gone through an exercise that unfortunately will be for naught. In principle, this is a good concept, and we voted for this at second reading. I'm concerned that if we put this into law as it is, it will get struck down.
The Deputy Chair: No further comment. Is it the pleasure of honourable senators to adopt this motion in amendment? Those in favour, please say yea.
Some Hon. Senators: Yea.
The Deputy Chair: Those against, please say, nay.
Some Hon. Senators: Nay.
The Deputy Chair: The nays have it, I believe, unless you wish to have a recorded vote. The amendment is defeated.
Let's go back to clause 1. Are there further amendments to clause 1?
Senator Day: Yes. Mr. Chair, could you pass out L3?
The Deputy Chair: Could you read it in English and French and give an explanation?
Senator Day: I move:
That Bill C-217 be amended in clause 1,
(a) on page 1, by replacing lines 16 to 28 with the following:
"cemetery"; and
(b) on page 2, by replacing lines 1 to 6 with the following:
"(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding 18 months.".
[Translation]
In French:
"[...] soit modifié à l'article 1, à la page 1, par substitution, aux lignes 17 à 30, de ce qui suit:
ou d'un cimetière est coupable
Et à la page 2, par substitution, aux lignes 1 à 6, de ce qui suit:
a) soit d'un acte criminel passible d'un emprisonnement maximal de dix ans;
b) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire et passible d'un emprisonnement maximal de dix-huit mois."
[English]
In effect, this proposed amendment will keep only the word "cemetery" on page 1 at the start of line 16. All the rest will be gone. Then, we flip over to page 2, and (b) and (c) will become (a) and (b) with a slight modification to pick up where words have been dropped. The effect of that would be to take away the defined penalty for first offence.
The Deputy Chair: You are replacing the penalty provisions for the first offence.
Senator Day: Yes.
The Deputy Chair: You're taking it out and replacing it with those suggested words.
Senator Day: Yes.
The Deputy Chair: Which would have the effect of what?
Senator Day: Giving the discretion to the judge to determine — well, I guess it's up to the prosecutor to determine whether to proceed by indictment or summary conviction. The provisions in terms of maximums are provided for. Apart from that, it will be up to a judge to determine what should take place; and there would not be the minimum penalty that appears in the bill for the initial infraction.
The Deputy Chair: You're replacing the mandatory minimum, which gives somebody a criminal record, and replacing it with some discretion from the judge: In the last sentence, "is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding 18 months."
Senator Day: That's correct, Mr. Chair.
The Deputy Chair: Let's have discussion.
[Translation]
Senator Boisvenu: I would simply like to say, Mr. Deputy Chair, that I, personally, oppose doing away with the minimum sentence or fine. I think that goes to the underlying principle of the bill, in other words, that such acts are serious. And under the senator's proposal whereby the individual would be liable to a maximum prison term of 10 years, I think we would see people receiving a minimum sentence in many cases; if the term of imprisonment cannot exceed 10 years, then there is no minimum term. It could therefore be a day or a weekend, perhaps even a weekend at home.
In that respect, I think this would take away the whole aspect of punishing someone for committing a crime against symbols that represent people who died for their country. And in so doing, we would not be showing appreciation for those individuals.
[English]
Senator Batters: Maybe I'm reading it incorrectly but is this not just taking out the mandatory minimum proposed for the first offence but also for the second offence and subsequent offences?
Senator Day: You are quite right.
Senator Batters: It's taking all the mandatory minimums out.
Senator Day: Yes, but there are maximums.
Senator Runciman: Senator Day said at the outset that his party supported the principles of the proposed legislation. To me, the principle here is to send a strong message that Canadians condemn these acts and believe that offenders should face meaningful consequences. What he is suggesting here today is quite contrary to the message sent by the sponsor of this bill. There is no way, shape or form that I can support, as others have suggested, that kind of gutting of the intention of this bill.
The Deputy Chair: Now of course we have to recognize that we heard witnesses who suggested this amendment. It doesn't just come from Senator Day.
Senator Joyal: I want to put on the record that the representative of the Legions who appeared here and testified, and certainly I would not undermine the credibility of those witnesses whose job it is to maintain the memory of veterans, have proposed to remove the mandatory minimums because in most cases, they thought that there could be a more appropriate sentence than just the imposition of a penalty of $1,000. Somebody who is responsible for such mischief needs much better education and awareness about the sacrifice of veterans than simply to make out a cheque for $1,000.
It is important to me that those Canadians who happen to be guilty of that offence not only realize that they have done something unacceptable but also that they have an opportunity to reconsider the history of the country and the involvement of those people who had to put their lives at stake to maintain freedom and human rights. On that basis, the amendments put forward by Senator Day are certainly pertinent, in my opinion.
The Deputy Chair: You must recognize, Senator Joyal, and I'm sure you will agree, that the Legion was suggesting that they were opposed to the mandatory provision that would give a criminal record and not what you further made an expansion to.
Senator Joyal: I support the amendments of Senator Day because it seems to be to be in sync with the testimony we heard.
Senator Runciman: I respectfully disagree with the chair and his interpretation of that testimony. Senator Joyal raised the whole issue of the Legion. Gordon Moore, Dominion President, Royal Canadian Legion, was the witness. Once through the conversation around the table his organization's concerns were allayed with respect to the impact on youthful offenders. I want to read into the record again what he said in response to adult offenders. When asked about the use of mandatory minimum sentences for adult offenders, Mr. Moore said:
I would definitely not oppose that. . . . When something that serious happens, then that individual should pay the full price of the law. I agree 150 per cent with you on that.
The Deputy Chair: Senator, you might want to elaborate on that later as it relates to young offenders who are prosecuted as adults.
[Translation]
Senator Boisvenu: I completely agree with Senator Runciman. We really have to make a difference here. In his remarks to the committee, the witness from the legion drew a distinction between a minor and an adult.
I think that, when he said the minimum sentence or $1,000-fine should not apply, he was referring to a minor. If a young person commits this kind of crime, they will be brought before youth court, where the sentencing is completely different.
In the case of adults, the witness from the legion never said we should forget about minimum sentences, so I agree completely with my colleague Senator Runciman's interpretation.
[English]
Senator Plett: Let me simply say that I concur with my colleagues.
Senator Batters: I was also going to also say that my recollection, without the benefit of having the transcript in front of me, was that the Legion representative was primarily concerned dealing with the young offenders aspect but, when it was pointed out to him that this wouldn't apply to young offenders, then he was quite fine, especially when I personally pointed out to him that, in many provinces in Canada, fine option programs could be used for community service rather than the payment of that fine, and then he was fine with it.
The Deputy Chair: Is there any further discussion before I ask Senator Day to wrap up this particular amendment? Senator Day.
Senator Day: My recollection is somewhat different with respect to the Royal Canadian Legion. They talked about young offenders and young people. We thought a lot of this occurs when young people, particularly men, are out drinking, and they tend not to be young offenders as much as people in the age group 18 to 23, 24 and 25. They were quite keen on helping out with respect to community service, as I recall the testimony from the Royal Canadian Legion.
I've heard what my colleagues have said, and I think we could call for a vote on L3, and then we can go to L4.
The Deputy Chair: If there's no further comment, we'll take a reading of this particular amendment.
Is it your pleasure, honourable senators, to adopt this motion in amendment? Those in favour, say "yea."
Some Hon. Senators: Yea.
The Deputy Chair: Opposed say "nay."
Some Hon. Senators: Nay.
The Deputy Chair: The "nays" have it, unless you require a recorded vote. The amendment is defeated.
Do we have amendments to —
Senator Day: Could we hand out L4? L4 deals with lines 23 to 27.
The Deputy Chair: Could you read it in English and in French and give an explanation, please.
Senator Day: Yes. This is the one where the first offence has been removed.
That Bill C-217 be amended in clause 1, on page 1, by replacing lines 23 to 27 with the following:
"(i) for a second offence, to imprisonment for not less than 14 days, and
(ii) for each subsequent offence, to im-".
That picks up at the very bottom line, to imprisonment for 30 days. That appears at the bottom. So it's lines 23 to 27 that are being proposed to be amended here.
[Translation]
The French reads as follows: « Que le projet de loi C-217 soit modifié à l'article 1, à la page 1, par substitution, aux lignes 24 à 28, de ce qui suit:
« (i) pour la seconde infraction, un emprisonnement minimal de 14 jours;
(ii) pour chaque infraction subséquente », et cetera. »
[English]
The Deputy Chair: Could you explain what the effect of that would be, Senator Day?
Senator Day: Yes. The intent of this amendment is to remove —
The Deputy Chair: To remove the first offence, the mandatory?
Senator Day: Yes, exactly. I'm sorry. I thought I was being asked a question. To remove the first offence, and then to pick up the wording of the second and subsequent offences as appear here.
Here, the following minimum punishment, the wording that appears, isn't dealt with other than with respect to the first offence.
The Deputy Chair: Discussion?
Senator Plett: This has exactly the same effect as the previous amendment did. Senator Day is trying to soften this bill, and this amendment does exactly the same as the last one. It completely destroys the intent of the bill. The first two amendments that he had may not have — but I find it quite strange where Senator Day was quite explicit in saying that he supported the intent of the bill, and now the last two amendments do exactly the opposite.
Senator McIntyre: As I understand, Senator Day, you would do away with the first offence, which calls for a fine not less than $1,000. In other words, you would leave that to the discretion of the trial judge?
Senator Day: Correct, and the other two are exactly the way they appear here. They are mandatory minimums as they appear here. To suggest that this is totally gutting the bill I think is a bit of a reach.
Senator McIntyre: Well, maybe not totally gutting, but partly gutting, anyway.
[Translation]
Senator Boisvenu: I am getting the sense that each page we look at is simply whittling down the bill to make it softer. Philosophically speaking, this amendment is almost identical to the last one, and I do not see the point.
[English]
Senator Joyal: I just want to put back on the record the brief that the Legion tabled with us, Mr. Chair, at page 4. I would like to read page 4:
We have concerns, however, about the lack of alternative forms of punishment in Bill C-217. We are of the opinion that there should be consideration for alternatives according to the severity and circumstances of each incident. As an example, consider the option of community service for and with veterans for those committing these offences.
In particular, if the offenders are our youth, . . .
The principle is there about lack of alternative forms of punishment, and of course they expand on the youth aspect of mischief. It seems to me that considering the amendments that Senator Day put forward today pays attention to what the Legion has in its brief.
Senator Runciman: There's no question that that was part of the brief, but I think, as we all witnessed during their testimony, that once they were apprised of some of the real impact of the legislation, they adjusted their perspective and testified to that effect.
Senator Joyal: Yes, but I think in all good faith, one can support the brief as it was written originally, because I would think someone who comes forward with a written, printed brief, that has been bound and so on, has had a discussion among the members of their Legion about their position and that it is a fair representation and a position that one can support with some credibility.
Senator Runciman: I think it's based on their knowledge of their interpretation of the legislation.
[Translation]
Senator Boisvenu: I have a question for Senator Joyal. When Bill C-10 was being considered, a special provision was included to give courts the authority to order youth with substance abuse problems and such into a drug treatment program or something of that nature. Should the same thing not apply in a similar case here?
Senator Joyal: In theory, yes.
Senator Boisvenu: So, if a young person in that situation vandalizes a cemetery and the judge decides that their behaviour was the result of intoxication, the youth could be ordered to spend 30 days in a treatment centre instead of 15 days in jail?
Senator Joyal: Yes, unless the Crown chooses to prosecute the individual under the adult system. And that could happen for all kinds of reasons; for instance, the youth may have been sent to court before and could be facing a minimum sentence where the judge did not have the option of sending him to rehab or what have you.
Senator Boisvenu: What the member of society told us is that, in the case of a youth for whom this was a first offence, caution would need to be exercised, but that, in the case of a young re-offender, jail might in fact be the better option. Is that not right?
Senator Joyal: The judge makes the decision based on the circumstances of the case. And that is why we want to keep a certain degree of discretion in the legislation.
Senator Boisvenu: But it is already in there, I believe.
Senator Joyal: The wording of the bill, as it stands right now, would not provide for that.
[English]
The Deputy Chair: As senators know, section 64 of the Youth Criminal Justice Act leaves it up to the Lieutenant Governor-in-Council of a province to set the age of a young offender from 14 to 16 years of age. As far as its application to this bill is concerned, does Mr. Zigayer have advice or comment to offer us regarding the application of this act to young offenders?
Mr. Zigayer: I think one has to remember that, no matter that there is a mandatory minimum provided for an adult, in all cases, it's possible to, I believe, add a probation order requiring that person to perhaps go and speak to the Legion or do something else. There's a mandatory minimum proposed for a first offence, which is a fine, but it doesn't say that all of your other options are foreclosed. It basically takes away your opportunity to impose something less than a $1,000 fine, but, in addition to a $1,000 fine, you can include a probation order.
The Deputy Chair: You can always include a probation order on sentencing, but, of course, the subject is that the person would have a criminal record.
Mr. Zigayer: Certainly, if you're prosecuted as an adult, you will have a criminal record.
The Deputy Chair: You have no comment about its application to the Youth Criminal Justice Act?
Mr. Zigayer: None.
Senator Runciman: As for the principles of the Youth Criminal Justice Act, custodial sentences are for violent offenders, as I understand it, and I don't see that it has any application here. That's essentially what we heard during testimony as well. I believe that's what you're saying here today.
Mr. Zigayer: On young offenders?
Senator Runciman: Yes.
Mr. Zigayer: Yes, but what I was trying to underline was the fact that, whether it's a young offender or an adult —
Senator Runciman: There are options.
Mr. Zigayer: In addition to giving him time to pay, you can also require the person, in addition to things like keeping the peace and being on good behaviour, to actually do something, to compensate or to speak with the Legion, to take that part of the equation, which is learning about the impact of his gesture on the military folks who had a great interest in this matter.
The Deputy Chair: Any further discussion before Senator Day concludes his comments on this suggested amendment?
Senator Day: Thank you all for your discussion on this particular point. You know that what we were trying to achieve is some flexibility with respect to some reckless act of a first offence. With the bill, as it now appears, that flexibility is not there for the judge, and that's why this was being proposed. I guess we'll call for a vote on this, Mr. Chair, so we can get onto the next amendment.
The Deputy Chair: Oh, so there's another one coming as well?
Senator Day: There is.
The Deputy Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment? Those in favour, "yea."
Some Hon. Senators: Yea.
The Deputy Chair: Opposed, "nay."
Some Hon. Senators: Nay.
The Deputy Chair: The suggested amendment has been defeated. We're now back to clause 1. Do you have a further amendment, Senator Day?
Senator Day: I wonder if the clerk would be so kind as to pass out L5.
The Deputy Chair: Could you read L5 in English and in French and then give an explanation in one of the two official languages?
Senator Day: This may take some time, Mr. Chair, but I'll do my best.
[Translation]
I will begin with the French this time.
Que le projet de loi soit modifié à l'article 1, à la page 2, par adjonction, après la ligne 6, de ce qui suit:
« (4.12) Malgré le paragraphe 730(1), le tribunal peut, au lieu de déclarer une personne coupable d'une infraction prévue au paragraphe 4.11, s'il considère qu'il y va de l'intérêt véritable de celle-ci sans nuire à l'intérêt public, vu son âge et sa réputation et les circonstances dans lesquelles l'infraction a été commise, ordonner qu'elle soit absoute en vertu de l'article 730, aux conditions prévues dans l'ordonnance de probation, dont l'une des conditions est l'obligation pour la personne d'accomplir au plus de 240 heures de service communautaire au cours d'une période maximale de dix-huit mois. »
[English]
That Bill C-217 be amended in clause 1, on page 2, by adding after line 6 the following:
"(4.12) Despite subsection 730(1), a court may, instead of convicting a person of an offence committed under subsection (4.11), if it considers it to be in the best interests of the person and not contrary to the public interest, having regard to the age and character of the person and the circumstances surrounding the commission of the offence, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition that the person perform up to 240 hours of community service over a period not exceeding 18 months.".
The effect of that would be, notwithstanding this bill that we're passing, and the mandatory minimums, that the court still has the discretion to order community service and to provide for a conditional discharge under section 730 of the Criminal Code.
The Deputy Chair: In other words, Senator Day, this is what some people would refer to as an escape clause, and it would be somewhat novel, I imagine. Mr. Zigayer, the clause is frequently seen in some other jurisdictions, like in Britain. Do you have any comments at all to make on this particular provision?
Mr. Zigayer: I believe you've characterized it properly.
The Deputy Chair: If we look to 718.1 of the Criminal Code on proportionality, you would see the reason for such a clause, which, again, would be novel but would, as Senator Day points out, meet his objectives as far as the clause is concerned.
We will now go to questioners.
Senator Batters: To me, this seems like nothing more than an escape clause for the Ontario Liberal provincial government who doesn't have a fine options program and doesn't have the ability to give people who can't pay a mandatory fine the ability to perform community service instead. So I think that, instead, what should happen is that some of these groups that continue to come before us and decry mandatory minimums and fines and that sort of thing should be talking to their Ontario Liberal provincial government to try to get them to have a fine options program.
The Deputy Chair: That's interesting.
Senator Day: I'd be quite prepared to amend this, if you'd like. Do you have any proposed amendment?
Senator Batters: No. I think you should speak to your Ontario Liberal provincial cousins to say that a fine options program would be a good thing for them to institute.
The Deputy Chair: Let's move on to somebody who has a great deal of experience in law enforcement, Senator Dagenais.
[Translation]
Senator Dagenais: As you will have noticed, I have not said much since we started. I do not know how many amendments are left. I certainly lack the experience that my lawyer colleagues have, but as far as I can tell, the amendment, once again, is designed to water down the bill. I can say that I will not support it because it waters down the bill considerably, as do the previous amendments.
[English]
Senator Runciman: I have a question to our witness. I'm looking at this proposed amendment and comparing it to section 717 of the Criminal Code, where there's an opportunity for the use of alternative measures in cases where the prosecution deems it not in the public interest or the safety of the public is not at risk. It strikes me that the provisions being proposed here are pretty well encompassed in section 717, are they not?
Mr. Zigayer: The prosecutor has many levers and opportunities to address the specific interests or situation of the accused. I'm sure that defence counsel will bring the particular circumstances of their clients to the prosecutor. Together, they perhaps will develop an approach that suits both the interests of the state in having the code respected and the interests of the accused.
For young people who might have a future going to law school or something like that, a criminal record is not going to be helpful. Several of the witnesses before you spoke about the possibility of plea negotiation and alternate resolution. I think that's a real possibility. In some cases, that should be considered. In other cases, the Crown won't entertain that type of arrangement.
Senator Runciman: My point is that avenues are currently available to the Crown that can be pursued.
The Deputy Chair: Are there any further comments by senators before we ask Senator Day to wrap up the discussion?
Senator Day: Thank you, Mr. Chair and colleagues, for the discussion on this. I'm pleased to advise that I'm at the end of clause 1, and there's only one clause in this bill, so there will be no more proposed amendments, from me in any event.
Our role as senators is to attempt to look for compromise and improvements where the Senate believes they should be done. I accept the decision of the majority here that, in spite of what has been proposed, it's felt that the bill is in fine form as it appears. I have nothing further to add and no further amendments to propose.
The Deputy Chair: Thank you, Senator Day. Is it your pleasure, honourable senators, to adopt the motion in amendment? Those in favour, please say, yea.
Some Hon. Senators: Yea.
The Deputy Chair: Against, nay.
Some Hon. Senators: Nay.
The Deputy Chair: In my opinion, the "nays" have it, and the motion is defeated.
If there are no further amendments to the amendments, shall clause 1 carry?
Some Hon. Senators: On division.
The Deputy Chair: Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall the bill carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Deputy Chair: Does the committee wish to attach any observations to the bill in its referral back to the Senate? Are there no comments on that? No.
Is it agreed that the chair report this bill to the Senate?
Hon. Senators: Agreed.
The Deputy Chair: I'd like to thank Mr. Zigayer for his appearance before the committee. This has been very helpful, Mr. Zigayer, and we want the Department of Justice to realize that we appreciate the fact that they've sent you here to be questioned concerning some of the particulars of the proposed legislation. Sometimes we were told too often in the past that the Department of Justice didn't wish to intervene when matters arose from the House of Commons in the form of private members' bills. It's very unfortunate that the Department of Justice takes this attitude, but it's historically their position.
We appreciate the Department of Justice for sending you to the committee, Mr. Zigayer. You've given very thoughtful and expert advice to the committee.
Mr. Zigayer: Thank you.
The Deputy Chair: There's just one further thing for us to consider. I'll give the floor to Senator Runciman, Chair of the Committee, for his interjection on a current subject, after which we'll conclude our meeting.
Senator Runciman: Thank you, chair. The steering committee, a couple weeks ago, followed up on discussions the committee has had over a period of time about the interest in visiting a psychiatric facility, St. Lawrence Valley Correctional and Treatment Unit in Brockville, which is about 1 hour and 10 minutes away from Ottawa and is a 60-bed medium security forensic facility. It also has a 100-bed secure treatment unit for provincial inmates suffering from mental illness. We thought that since we're starting to deal with proposed legislation dealing with the not criminally responsible, it would be helpful for the committee to visit the facility, talk to staff, perhaps talk to some of the eastern Ontario Review Board members and others in terms of our deliberations on the proposed NCR legislation.
The hospital has indicated tentatively that they could make Monday, March 24 available to us. I know that Monday is awkward for some members. We would leave Ottawa probably at 10:30 in the morning to travel to the facility to meet with officials, staff and front-line workers; have lunch at the facility as I believe they would probably put lunch on for us; and then return to Ottawa.
We don't need an answer right away in terms of interest, but fairly soon would be helpful in terms of making arrangements and firming up the date with the Royal Ottawa Health Care Group. The clerk will be sending out a reminder on this probably tomorrow, so we would appreciate your feedback.
The Deputy Chair: We're meeting on this subject tomorrow morning, when we will hear from Minister MacKay on Bill C-14. We expect to see you all here bright and early tomorrow at 11 a.m.
(The committee adjourned.)