Craig's Speech on Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials)

October 25th, 2012 - 7:34pm

Mr. Craig Scott (Toronto—Danforth, NDP): Mr. Speaker, I rise today to speak to Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials). Over the past several years, we have seen deplorable incidents across the country where war memorials have been vandalized. This includes a war monument at the front of Malvern Collegiate, just outside of my riding of Toronto—Danforth, which was vandalized a few nights after it had been newly restored and rededicated.

Of course, my colleagues and I strongly condemn these and other disrespectful actions toward war memorials and monuments. That is common ground. We acknowledge and appreciate the hard work of people and communities throughout Canada who have ensured that those who served and sacrificed on behalf of all Canadians are honoured and that their memory is preserved. This memory, on our part, of those who fought to maintain the memory of others comes at no more appropriate time than a week or two before Remembrance Day.

Personally, honouring military service is very close to my heart. For many years I have worn the ring that is on this finger, which my grandfather, a soldier in the Nova Scotia Highlanders, was wearing when he fell at the Battle of Drocourt-Queant in September 1918. He lost his leg that day and, as for so many who cheat death in battle, pain and trauma made post-war survival its own sort of battle. Eventually, my grandfather succumbed to the effects of his wounds. However, thank goodness for me, my mother was born before my grandfather passed away. What makes this connection particularly interesting is that she spent the last 15 to 20 years of her career working for a monument company that specialized not only in cemetery memorials but also in larger memorials. Most of the war memorials in Atlantic Canada were produced by the company my mother worked for in Windsor, Nova Scotia, including the World War II pilots memorial in Gander, Newfoundland, and a memorial replacing an older memorial in a town in Belgium, commemorating the 85th Battalion of the Nova Scotia Highlanders and its role in the Battle of Passchendaele.

My purpose in referencing my family history is to suggest that I do not come to this debate not appreciating the importance and value of memorials in our society and for our collective memory.

Bill C-217 proposes to amend section 430 of the Criminal Code, which is the section dealing with mischief, so as to provide for minimum mandatory fines of $1,000 for a first offence, 14 days in jail for a second and 30 days in jail for a third when the mischief is in relation to a war memorial or like structure, similar building or part of such a building or structure. However, the current provisions of section 430 of the Criminal Code already deal with mischief related to the destruction and defacing of property, including war memorials and monuments. The penalty provisions in the existing section 430 have provided the courts with an adequate scope for appropriate sentencing without the need for any mandatory minimums. No evidence at all was presented to the committee to suggest a need for mandatory minimums.

Section 430 of the code provides for greater maximum penalties for mischief in relation to churches, synagogues and so on, but again there are no minimum sentences.

In contrast to the current approach in the Criminal Code, Bill C-217 proposes adding a subsection to deal specifically with mischief relating to war memorials.

Like the sponsor of this bill, I want to emphasize that I believe we do have an obligation to protect these sacred spaces in our communities in order to honour the Canadians who have made the ultimate sacrifice to our country.

As we heard from the sponsor of the bill, its intent is “to send a strong message that vandalism and desecration of our war memorials and cenotaphs will not be tolerated”.

Be assured that we, the NDP, support this intent. However, the means by which the bill proposes to send this message is not the right way.

As legislators, we must ask whether the imposition of greater mandatory penalties will achieve the purpose of encouraging respect for war memorials. Mandatory minimum sentences simply do not accomplish that end. They do not accommodate the reality of the divergent circumstances that judges are called upon to assess, which can lead them to the conclusion that something less than a mandatory minimum sentence is appropriate or can lead them to pursue alternative approaches or measures other than fines or jail time.

As my colleague from St. John's East, who was the former justice critic, and others have said, we must work hard to find a balance in legislation and so often mandatory minimum sentences upset that balance. I would also draw to everyone's attention the compelling testimony before the justice committee with respect to another bill before the House of former Supreme Court Justice John Major, who was elevated to the Supreme Court from the Alberta Court of Appeal. I recommend his thoughtful testimony. Two comments he made are worth mentioning now, just to give everyone a taste. On one hand, he said:

I'm still a little concerned about a minimum sentence that's absolute. Cases are not all the same, as you know, and the minimum sentence may be inadequate in a number of circumstances...but in other cases it may not be proper. 

He went on to say:

It's just the variation in people that pushed me towards the view that a minimum sentence is something that I find has a lot of flaws.

That was said by a former Supreme Court justice who was known for being a very good jurist, but definitely a cautious, if not at times a conservative jurist. He told the justice committee that mandatory minimum sentences are problematic.

At working committee my colleagues, in particular the justice critic from St. John's East, proposed a series of amendments to the bill that would have allowed for greater judicial discretion. There is one in particular that I would like to draw attention to because it combines two philosophies that can live together with some balance. The NDP would have asked for an amendment that would have read as follows. “A court may delay imposing a punishment on a person convicted of an offence under [the subsection in question] to enable the person to make reparations for harm done to victims and the community. If the person makes reparations that, in the opinion of the court, are appropriate, the court may impose a punishment that is less than the minimum punishment provided for in that subsection.”

The government declined to work with us or accept that amendment, but the committee heard testimony that suggested that approach would be recognized as an appropriate one by many in Canada. I was struck by a letter received from the dominion president of the Royal Canadian Legion. I am going to read two short passages from that letter. It states:

Our membership is strongly in favour of recognizing the serious nature of these incidents and in consideration of the feelings and emotions expressed by all Canadians against such acts....

We do however feel that the provision of appropriate penalties suitable to the individual particulars of an incident should reflect the nature of these acts and there should be latitude in assessing the gravity of the situation. 

The punishment should fit the crime and although no incident of this nature can be condoned, there should be provision for restorative justice measures with a mandated dialogue between veterans groups and the offenders. There should be provision where offenders are encouraged to take responsibility for their actions, to repair the harm they have done, by apologizing to a group of Veterans, or with community services. It provides help for the offender to avoid future offences and provides a greater understanding of the consequences of their actions.

I remind those listening that this letter was from the dominion president of the Royal Canadian Legion.

I would much prefer to stand with the approach of the Royal Canadian Legion that has veterans and our historical memory with respect to wartime first and foremost in their minds than with an approach that relies on mandatory minimum sentences as some kind of salvation for the serious problem, which I again acknowledge, of the desecration of memorials.

I will end by drawing attention to the case of the Ottawa National War Memorial, where teens charged with urinating on that site ended up working with the Royal Canadian Legion. They were not fined or sent to jail, but they learned and are continuing to work with the Royal Canadian Legion in an educational mode. I believe that we should follow the lead of the legion.