Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11 - Evidence, October 3, 2001
OTTAWA, Wednesday, October 3, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-7, an Act in respect of criminal justice for young persons and to amend and repeal other Acts, met this day at 3:35 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. This meeting is now called to order.
We have before us a panel of Mr. Gary Rosenfeldt, the Executive Director of the Victims of Violence Canadian Centre for Missing Children, and Mr. Steve Sullivan, President and Chief Executive Officer of the Canadian Resource Centre for Victims of Crime.
Before you begin, Mr. Rosenfeldt, I should point out to honourable senators that, to my dismay, we are not being televised today. As we all know, the deal is gavel to gavel, from the beginning of a bill to the end, and CPAC has unilaterally decided to cover some other committee meeting today. I apologize for the cameras not being turned on, but you may be sure that CPAC will hear about it. They will be with us tomorrow morning.
Mr. Rosenfeldt, please proceed.
Mr. Gary Rosenfeldt, Executive Director, Victims of Violence - Canadian Centre for Missing Children: I, too, am disappointed that the cameras are not here. I think it is a subject of grave importance to most Canadians.
For those of you not familiar with Victims of Violence, we are a national organization of crime victims, mainly homicide victims. We have members from coast to coast.
We are a support program for families of murder victims. A lot of our work entails reaching out into the community when a murder takes place. We go to the homes of families of victims. We attend court with them and do what we can to assist them through the criminal justice system. I have been doing this for close to 20 years myself. We have members in the organization who have been around just as long.
One of the most difficult situations we face in going into people's homes is dealing with families of victims of young offenders - young people who commit some of the more heinous crimes in Canada. Our difficulty is much more than assisting them to deal with their loss. For many of these people, their experience drags on for years, starting with the court case - if they apprehend the offender. In many cases when they walk away from the courtroom in the end, they throw their arms up in the air. They are frustrated. They do not understand our justice system and how it could leave them this way. They are frustrated and angry.
The media seems to love it. They pick up parents of murdered children across the country regularly on national TV, who are angry and frustrated. Part of that anger and frustration is the lack of justice that they see in the justice system. I will very briefly give you an example.
There is a case I have talked about here, in Ontario. In January of 1994, a young girl went missing here in the province. Her body was later found. While investigating the disappearance and murder of this young girl, the police went to an individual's home with a search warrant looking for evidence. They found the body of another young lady in this gentleman's bathtub. Subsequently he was charged with two counts of murder.
My wife and I got to know the families of both victims - one of which we got to know very well. Our laws have changed since 1994, but this family has had much frustration in dealing with the justice system then. Through appeals to the courts all the way up to the Supreme Court of Canada, they tried to move the case to adult court. The young offender, just shy of his 17th birthday, was charged with two counts of first-degree murder.
After seven years of appeals, in January of 2001, when the case had finally reached trial and the jury was being selected, the family were notified that he had pled guilty to one count of second-degree murder and another count of a lesser charge relating to the death of the other girl. In other words, after seven years he changed his plea to guilty. We attended the trial at the time.
After having spent seven years in custody, he pled guilty to second-degree murder and was sentenced to seven years' imprisonment, under the law that existed at the time, for the death of two beautiful young women in a small town in Ontario.
He never was convicted of the second count of murder but was convicted on a lesser charge. However, that lesser sentence is running concurrent with the sentence for second-degree murder. What really happened is that in January 2001 of this year, he was given a sentence of seven years, making him eligible for parole in 2002. A year later, he is eligible for parole.
He has since denied his application for parole. He has not applied for parole. In the meantime, however, the families were never kept informed of any proceedings. When they went to the prosecutors, they were simply told that, "These things take time." Take time? Seven years waiting for a case to come before the courts?
This young person was just shy of his 17th birthday. Because it's a young offender his name is not published. By the time seven years had passed there was very little publicity on the case, but the family now are left with a lifetime of pain and suffering. They believe that the young offender will be out of prison next year on parole, but they still have questions. They are not being kept informed with regard to the case, what he is doing in prison, whether he is taking part in programs in prison. He has only been in prison a few months now and will be released in a year. He was in custody in a holding cell for seven years. I do not know how he can get rehabilitation in a holding cell. It just does not make sense.
That is the process. Those are the victims with whom we deal with on a regular basis. We try to explain to them that a serial killer like Paul Bernardo, who goes out and abducts and rapes and murders two little girls, is a few years older but society is not satisfied with just giving him a life term in prison. We also declare him a dangerous offender, which makes it almost impossible for him to ever get out of prison.
However, because this young person is just under 17 years of age he gets seven years, which, broken down, represents three and a half years for the death of each of the young girls. Families of homicide victims do not see justice in that term. Because he will spend only one year in a federal institution, where there are programs that might assist him - such as anger management courses - that will not be available to him. Yet he is eligible for parole in January of 2002. This is the frustration that we have to deal with.
Many people then point to victims and say that they are angry, frustrated people; that they are vengeful, they are hateful. It is not about hate and revenge; it is about allowing victims their proper roles within the criminal justice system and keeping them informed. One of the families in the Ontario case that I told you about were never informed, after seven years, about victim impact statements. Half an hour prior to the sentencing of the young offender, they were informed by the Crown Attorney that they had a right to present a victim impact statement.
This is the way victims are treated in our justice system. I see written in here information that "victims have a right to information," et cetera. That is all well and good, but ultimately victims do not get these services. What we would like to see is something in writing specifically stating that all victims have a right to that information. We would like to see the phrase, "shall be given information" rather than the current phrasing.
The other frustration that many victims have is with the age of the offender. We have talked about it in our paper here. We believe that when young people 16 and 17 years of age are sentenced for serious violent offences - including murder, attempted murder, manslaughter, sexual assault robbery, kidnapping, criminal negligence causing death and aggravated assault - they should be automatically tried as adults. For 14- and 15-year-olds, there should be just cause shown as to why they should not be tried as adults. For youths aged 12 and 13 years of age convicted of all serious crimes, there should also be a minimum mandatory sentence for each crime.
Now, when we talk about the justice system responding to crimes committed by children under the age of 12, people assume that we want to put children in jail; that we want 10-year-olds and 11-year-olds serving time in Millhaven Penitentiary. That is not what we are about. We believe that when a young person aged 10 and 11 years of age commits a serious crime, he or she should come into contact with the law. Police officers should be aware of these children, who they are and what they are doing. There should be courts where these children can be taken and held accountable for what they are doing.
I am not suggesting putting children in jail. However, we all have read about cases such as a recent Toronto case where an 11-year-old had committed a sex crime and laughed at the police when they came. I think we have to have some accountability for children aged 10 and 11.
Beyond accountability, I personally have great faith in our police and courts with regard to dealing with children. If children are included in the system this will show that there is a problem. What happens now is that such children are taken to Children's Aid. The Children's Aid people are very overworked and in some cases do not find out if there was a court-ordered conclusion. If a young person commits a crime and the court orders something - anything - at least they have been brought into contact with the law, with police and the courts.
Years ago in Canada, if a child was reported missing, the police would say that they did not do anything about missing child cases until 48 hours had passed. After that period parents could return to the police department, fill out a form and list the child as missing.
I think our argument has finally taken effect with police departments. We neither expect nor want the police department to send out a search team for every child who runs away from home. But what we expect from the justice system is a response; when a child goes missing, we ask police to go out and investigate it. Then they should ask questions about why the child went missing. Is the child being sexually abused or physically abused at home? Police have a tendency to pick up on these things when talking to youngsters. It is a very simple thing. Police today are doing that. They are not just writing off children as "another runaway." What they do is try to ascertain why the child ran away.
Similarly, when you have got 11-year-old who commits a sex offence, the obvious thing is that we want to know why he is doing that. We think that looking into the home situation is a good place for the police, and possibly the court, to start. Is the child possibly being sexually abused in the home?
Under the current system, when children commit these crimes they are turned over to Children's Aid societies. I am not here to criticize the work of the Children's Aid societies. The Children's Aid workers are overworked; their caseloads are two to three times what they should be. They never have enough resources. Somewhere along the line, however, would not a person of authority be good in a child's life?
The police have the discretion whether or not to lay charges. At least that puts the police in direct contact with the child and the parents. The police can talk the parents about why the child is doing this. Maybe the community is concerned that he might grow up and commit more serious crimes.
Many police officers today are very knowledgeable about working with youth. Police departments all have youth detachments. I do not think that they want to deal with extremely young children, but police are adept at recognizing and reporting serious crimes that are happening to children. It just brings them in contact with the law.
As far as the publication of names is concerned, we believe that the community has a right to protection from people who commit very serious crimes. I could tell you about case after case of sex offenders over the last few years, one in Ontario where a young man just shy of his 18th birthday, abducted, raped and murdered a young lady, and had sex with her dead body. He was given the minimum sentence under the Young Offenders Act, went into an institution, and was released back into a community here in Ontario. Nobody knows who he is. Parents could hire him to baby-sit their child. When dealing with serious crimes, there should be a publication of names.
The police also have a right to know who is committing the crimes in the community. All young offenders' names and records should go into the Canadian Police Information System, CPIC. The way the system is set up currently a young person who committed a crime in the City of Ottawa, then later moved to Toronto with his parents, he would be unknown to the police there. All information pertaining to that person should be on CPIC.
At the age of 18, a young person can apply for a pardon. It is done every day in this country. 90 per cent of people who apply for a pardon receive one.
Those are the main things we are concerned with.
Mr. Steve Sullivan, President and Chief Executive Officer, Canadian Resource Centre for Victims of Crime: Thank you, Madam Chair and senators, for allowing us to come and talk about this important bill.
I am with the Canadian Resource Centre for Victims of Crime. We are a national non-profit victims' advocacy and lobby group, funded by the Canadian Police Association. We try to assist victims from across the country.
It is difficult, in light of recent events in the United States, to try and focus our minds on internal issues. The depth of the attack on our neighbours to the south has put all our minds on issues of risk to us from foreign entities. However, it is important that we do focus on internal issues as well. We must not only protect Canadians from the outside of our borders but the inside as well. We must protect from those who would use violence in the name of religion - or their own warped interpretation of it - and in the name of terrorism and from those who would use violence for more "normal" motivations.
I think it is important to start the debate off to note that the majority of our young people never come into contact with our criminal justice system. Of those who do, the majority are not serious or violent offenders. A small group of young offenders are responsible for a disproportionate amount of crime. It is important to remember that when we talk about young offenders because we often seem to focus on the more sensational incidents, which, fortunately, are very rare in this country.
The committee's consideration of this bill is extremely important. You have a considerable task ahead of you. As most of the senators who spoke to the bill on second reading have noted, this is a very large and difficult bill to study. Senator Joyal commented that it took him a number of hours to get through the bill. It took me a number of days, and I am still not sure that I completely grasp it.
We raised this issue of the complexity of the bill at the justice committee in the House of Commons. I was shocked at the number of witnesses - people with far more experience and expertise in this area than I have - who expressed those same concerns. One defence lawyer told the committee that this kind of legislation is good for his business. One judge told the committee this legislation may make the system worse. A number of witnesses from the provincial government said this bill was simply unworkable. Saskatchewan, when they heard witnesses on Bill C-7 said that, even since the government made the amendments to Bill C-3, they may have made some of the sections of the bill worse.
The complexity of this bill should be one of the most important things that you consider as a committee. The government is telling Canadians that the Young Offenders Act was not working and that this new bill will do a better job. If the experts, the practitioners, and the provinces are saying something different, however, how can anyone have faith in this new bill?
Our opposition to this bill is a difficult one, because I agree with the general direction of it and what the government hopes to achieve. We want to divert most of the young offenders out of the legal system and focus our efforts on those who have committed the most serious crimes and are obviously the most troubled.
At the same time, we must acknowledge the recognition the Minister has given to victims of crime in this bill. I think it is a reflection of her continued commitment to victims as we have seen in other legislation.
If this bill creates a system that simply is more confusing, more frustrating, and takes more time, then that is not in the interest of victims, let alone anybody in the system.
I believe the Young Offenders Act was not perfect but not as bad as some people would have us believe. It was fixable and could have been better with some of the positive amendments we have seen in this bill. Senator Andreychuk noted that the problem really was not a question of legislation but one of resources.
The emphasis of this new bill is "extrajudicial measures," which is just a fancy name for alternative measures. There is nothing new in that philosophy, it is just a different name, and frankly, a name that is more confusing for the general public. If we want them to understand the system, we should use basic language. We are all familiar with alternative measures. This new name will confuse people more.
But the problem with the use of extrajudicial measures in the wider way wasn't with what the legislation said, it was with how much money was put into it at the ground level. The minister said she would give more money to the provinces to establish more programs. That is wonderful, but one has to wonder why we need a new law to do that. Can you imagine if we took all the money spent on this bill so far for drafting and redrafting it, the consultations, the number of witnesses this committee will hear, the 1997 review of the whole youth justice system and the enormous amount of training this bill will require for the people who have to implement it? If we could have taken all that money and put it into community programs, I think we would be off to a better start.
I will highlight a few of the areas we discussed in our brief, and then take some questions from the honourable senators.
We believe that the Young Offenders Act is an acceptable bill and do not accept the minister's arguments that it was simply not fixable. We believe this bill is too complex.
We raised concerns about the absence of the notion of protection of public in the preamble. I want to clarify something. Protection of society does not only mean locking up people. Sometimes it does. Sometimes we need to eliminate people from society until they can get the help they need. It also means addressing the needs of young people and providing them with the tools that they need to change their behaviour, which is ultimately the best protection we will all have. The notion that protection of society and rehabilitation are counterproductive is a wrong way to look at it. Rehabilitation is a means to an end, which is protecting the public. It is important that we start off any bill with the notion that it is there to protect the public.
We should not look at these issues as being mutually exclusive. We recommended that provisions relating to victims be strengthened and clarified, and Mr. Rosenfeldt has touched on some of those. I would like to add one point to our recommendation number 3. I forgot to mention that victims should be notified of an offender's release from custody.
We addressed the issue of children under 12, and recommended that a special mechanism be created to deal with those 10- and 11-year-olds who commit serious crimes, as few as they may be. I remind the committee that the liberal-dominated Justice Committee made a similar recommendation in 1997. It was not a question of throwing 10- and 11-year-olds in jail, but trying to give youth courts power, when all other measures had failed, to instil some of the positive elements that the Young Offenders system has: supervision, probation, community service, treatment - things that at times lack in our provincial child welfare systems.
The remainder of our recommendations focus on sentencing issues. Our final recommendation was that this law be reviewed within five years of coming into force. It is a complex bill. The "sunset" clause has been used in other bills, like the Corrections and Judicial Release Act, which I think will lead to positive changes in that system after we realize what is working and what is not. In five years we will learn a lot about what is working in this bill and what not. I sincerely hope that we will find that we are wrong and that more is working.
I will end my presentation and try to answer any questions the senators may have.
Senator Nolin: Where is the French version of your text?
Mr. Sullivan: I sent to it the committee last week. I believe it should be available.
Senator Nolin: Mr. Rosenfeldt, can you explain briefly what services you are providing to victims of youth violence?
Mr. Rosenfeldt: Basically, we are a support program. Many victims are thrown into a justice system about which they know nothing. Members of our group support the people and give them information. We have a full research staff at our office to provide research and information with regard to their case. We try to attend court with them. In many cases, like here in Ottawa, we have two people who just simply work the court system, attending with families of homicide victims. It is a support and assistance program.
We are not grief counsellors or a crisis team that responds. We simply contact people. We have a Canada-wide toll-free number. We have calls every day from every part of Canada. People call in looking for information with regard to the justice system. We put out a lot of child protection materials that are distributed in the community. We have a full print shop just printing child protection materials.
Senator Nolin: I want to bring your attention to section 6(1), the section that deals with the authority that would be granted to the police to serve... in French we have a fancy expression for that, "un avertissement" - a warning. Do you think a police officer is the proper person to evaluate what is needed for the young offender?
Mr. Rosenfeldt: I think today that police officers are much more trained and have a great deal more expertise with regard to dealing with young people. Many of the major cities have youth details. I know some of the people who have worked in youth details in cities. These people have a great deal of expertise in dealing with young people. I know of cases where police officers have made a major difference in young people's lives.
We don't have it any longer, but for many years we had a program for young offenders where they did community work putting together a lot of our child protection materials at the office. We used to get as many as 15 to 20 kids in the office in the evenings, young people who were convicted of property crimes, vandalism, theft, this sort of thing.
I have listened to these young people for years tell me about the Young Offenders Act. I mention that in the brief here to.
Senator Nolin: I want your opinion on section 6(1). Let us read it together: "A police officer shall, before starting judicial proceedings or taking any other measure ..." et cetera. The police officer will be the person who will decide at the beginning where the process will end.
Mr. Rosenfeldt: Yes.
Senator Nolin: Or should end.
Mr. Rosenfeldt: Yes.
Senator Nolin: Do you think it is in the interest of the victim?
Mr. Rosenfeldt: Yes, in many cases. I do not have a problem with that because when dealing with young people, the vast majority of police officers today come into contact not only with the offender but also with the victim. We are also talking about alternative measures later on, as part of the Act. The police officer is up front with both parties to the events. In many cases the officer can judge whether or not the case should go any further. I really believe that they are in a position to do so. They will hear the victim's concerns and will know if the victim wants to proceed through the legal system.
Most victims of lesser crimes do not want to push it through the system. The officers are in a position then to look at the young person and assess why the crime was committed.
Senator Nolin: That section of the law specifically referring to the principal and objective of the law.
Mr. Rosenfeldt: Yes.
Senator Nolin: When you read that, in section 4, it is quite "époussant," as we say. However, I accept your answer that it would be in the interests of the victim. Thank you.
Senator Andreychuk: Mr. Rosenfeldt, I spent 12 years in the system as a judge, and prior to that in prosecuting and defence. I came to the conclusion that it isn't just the policeman that is necessary in that young person's life, but also the school, the parent, the social worker, sometimes a neighbour. You seem to have given up on the rest of the system and have hung your hook on the fact that the judge will be able to give some resources and attention to the person. You have been very positive in your comments about that, and in particular about the police.
The difficulty that I find in this Act is that a young person will be put in the court system to put him out of the court system in extrajudicial measures. We will be trying all those things that society should have been trying anyway, long before he came in conflict with the law. If we do it that way, we trigger the courts so he knows there is a court - although I strongly suspect he knew it was there anyway - and we try all these other measures that should have been tried anyway and they fail. Then he can be brought back into the court system the next time around and we can't make any comment about that whole process.
So are we teaching them more manipulation? More disrespect for the court? Would it not have been better to leave extrajudicial matters as extrajudicial?
Mr. Rosenfeldt: I have a great deal of respect for the courts. When a seriously troubled young person commits a serious offence and is placed in the care of the court, the court can make some decisions that could be positive in that young person's life.
First of all, the police will make a decision as to whether or not to go to court. I have more faith in the police making that right decision and possibly carrying it into a court situation. I don't have a problem with teachers and social workers and the Children's Aid Society. However, as these resources are so drained these days, I just do not believe that these young people will receive the proper attention. Sometimes it is a matter of forcing that attention upon the child.
Senator Andreychuk: Perhaps you could elaborate on which courts you have dealt? Please tell me if I am right or wrong. The courts are now suffering in youth court the same problems you have identified with the caseworkers and social workers - they have very few resources. On paper that sounds good but for the average court - judge, probation officer, caseworker - their alternatives are very limited because those resources exist only on paper, not in reality. Where they are available the waiting list is six months. The judge's ultimate resource, therefore, is custody. Often it is the only resource.
Is that the way we solve the problem of the social services in our communities?
Mr. Rosenfeldt: It depends on the offences that we are addressing.
Senator Andreychuk: I am not talking about violent offences. I am talking about the front end.
Mr. Rosenfeldt: I do not think that non-violent offences should ever hit a courtroom. There are police officers. There are victim-offender reconciliation programs. I suggest these offences all go to the court. Concerning violent offences - for instance, the sexual assault by an 11- year-old boy - I have grave concerns as to where some youth are going and how they arrived at that position in the first place.
I refer to a case of an 11-year-old child who is committing sexual offences, a sexual assault is a very serious offence. Eleven year-olds do not think of sexual assault under normal circumstances unless something in their life caused them to do so. Are they being sexually assaulted at home and/or in school or some place else? It brings them to the attention of the police. The police can talk with them. In a courtroom it is a whole different thing.
I have more faith in something being done about it if the police and the courts are involved. How is that? I know what you are saying. All resources are tapped to the maximum today. But I don't believe we should simply turn them over to social services when they commit serious crimes under the age of 12.
Senator Andreychuk: There is an aspect of when that violence first erupted. It rarely is at the time of the crime; it was exhibited earlier. We need to pursue that.
You are saying that there should be more disclosure of the name of the young person to the community. I am ambivalent on this, and you can help me out. The people who have to work to protect victims in communities need to know of any perpetrators in the community. On the other hand, if we want to work with the young person and turn him around, we do not want him marked. Depending on which community, it works. In a large city, perhaps it is not such a big issue.
But if you come a small community, the name becoming visible becomes imprinted for a long time on the young individual. I weigh that against another element. With your experience, I wanted your comment.
In most of the cases of young people with whom I dealt in court, everyone knew they were in court; everyone knew the consequences. It did not stigmatize that child in his school or in his community because everyone else knew about it. Only in a broader community did the police need the name.
I thought perhaps releasing his name wouldn't be such a difficulty. What is the real reason that you would want the name released?
Mr. Rosenfeldt: For the protection of the community.
Senator Andreychuk: Are you talking about large cities? Small communities? Where do you work that the community does not know who the young offender is? I am talking about smaller communities where everyone would know.
Mr. Rosenfeldt: Everyone does know anyway. I realize.
We had a horrible murder committed in Kemptville a few years ago. The Desroches family`s daughter was brutally murdered. I went to see the family immediately after the murder. Everyone I talked to in Kemptville knew who committed the crime. I knew who committed the crime. It was word of mouth. This child was in school the next day and he was charged. Everyone in the small town knew it. So we are not protecting their identity in small communities anyway. It does not happen.
In a larger community, such as the City of Ottawa, I think you have to go back to the rights of the community to know and understand that somebody who has committed such a crime is living in the community.
Here in the city of Ottawa, a couple of years ago the media caught the name of a sex offender who had moved into a halfway house in city. A community group got together and kept up 24-hour surveillance on the halfway house. The police were involved, and were able to get the sex offender to sign a peace bond.
But the bottom line was, two community groups were formed as a result, to protect the community. There was a lot of fear and concern. They held a public meeting. We talked to members of the group and were able to dispel a lot of fear. He was living in a halfway house and the only reason he was living in Ottawa at all was because he was taking treatment at the Royal Ottawa Hospital.
Senator Joyal: How old was he?
Mr. Rosenfeldt: This was an older person - an adult offender.
But when you give people a chance in the community, when they understand more about the justice system, what we find is suddenly they are not the hateful, fearful person concerned about a sex offender living in the community. The response I got from that community when I talked to members of those two community groups was that "if this is good for him and will prevent those crimes from happening in the community in the future maybe we can go along with it." They appreciated that they knew who he was.
Bizarre things have happened when pedophiles have moved into communities over the past few years. People have put their pictures up at corners. A magazine called Pedophile Alert was distributed around Vancouver with full-page ads by Canada Safeway.
What we are saying is, first of all, the committee has a right to know. Particularly with sex offenders, the community wants to know who they are and that they are living in the community. Once they better understand the situation and see that the offender is taking treatment and has been released from an institution, most people would not be vengeful or hateful. They probably would support him for jobs or anything else. But it gives them the option. They are not going to hire him to work at the swimming pool or work with young people or baby-sit their kids. I think they should have that opportunity.
I am not saying all people are forgiving - especially of sex offenders. However, I think we have a false impression of some communities. I have dealt with many excited communities that have been upset that a sex offender has moved into their community. However, if they have proper information and understanding, most Canadians are willing to allow these people back into the community and give them every opportunity possible.
Senator Grafstein: Mr. Rosenfeldt, I may ask you some questions that you might find personally difficult. I hope you will understand that, with respect to the work you are doing specifically with respect to missing children, I find it almost impossible to describe how important it is. Anybody who has encountered a family with a missing child understands that living trauma that exists.
This is meant to be a philosophic exchange and I want to characterize it that way.
I find it difficult to accept a principle that you have enunciated, which is the thesis of holding a 10-year-old or a 12-year-old child responsible, albeit for the most violent of acts. We do not allow a child to drive a car, or to marry, or to vote, or to apply for a gun, or to have a drink. We do not give him the civic responsibilities, yet you have in effect said we should hold this violent, aberrant child responsible. Where does the parent's responsibility let off and the child's responsibility take over? At 10 years of age? Or 11, or 12, or 13, or 14? Where?
Mr. Rosenfeldt: It is a good question. I believe that parents are responsible for their children. I believe they are responsible all the time the children are living in the home until they become adults. Really, it is a family thing and responsibility goes back to the family.
Senator Grafstein: Would it not be better, then, for us to have a Parents' Young Offenders Act than a Young Offender's Act?
Mr. Rosenfeldt: A very good point. The problem today is that people assume that young people, aged 10 and 11, as an example, do not understand the their rights and they do not understand laws and what they are doing is wrong, and so on. These children - and I hear from social workers all the time - fully understand their rights. They understand the law. They know how far they can go with regard to breaking the law. Obviously the parents have responsibility for a 10-year-old child and must be involved.
Senator Grafstein: Are you saying that if the child knows the difference between right and wrong, he should be held accountable almost as an adult, for an adult-like system?
Mr. Rosenfeldt: What I am saying is I would like to see an 11-year-old or 10-year-old brought before a court. I would like to see the parents there. I would like to find out where the problem originates. We are not talking about putting young people in jail. That is the other side, as far as being accountable. If vandalism is committed I think the parents should be involved and pay for the vandalism. I think that some of that responsibility has to go back to the parents.
Senator Grafstein: I understand that. I am just trying to get at the philosophy that compels the government to move forward into this uncharted area of holding 10-year-olds accountable for their acts under a criminal-like system. It is a philosophic issue before we get into the detail, and it is hard for me to climb that mountain.
Mr. Rosenfeldt: A few years ago we all watched on television when an 11-year-old New York State young boy was sent to life imprisonment for committing a very serious murder.
Senator Grafstein: We are not New York.
Mr. Rosenfeldt: I know that.
Senator Grafstein: We are not Texas.
Mr. Rosenfeldt: I realize that.
Senator Grafstein: We are not Pennsylvania.
Mr. Rosenfeldt: I am not saying that we should be putting 11-year-olds in prison for life. We state that in our paper. We do not want to send young people to prison. However, if both these young people and their parents come before the court, at least something can be done with regard to these young people before they become more violent. I guess that is what we are saying.
Senator Grafstein: One other question and then I will pass. Do you believe in equality before the law for all Canadians?
Mr. Rosenfeldt: Yes, I do.
Senator Grafstein: You think that people should be treated equally under the law.
Mr. Rosenfeldt: Yes.
Senator Grafstein: For all Canadians?
Mr. Rosenfeldt: Yes.
Senator Grafstein: What do you think of this provision for section 61? Look at section 61. I will just read it. It gives the lieutenant governor in council - in effect, the cabinet of each province - the option of deciding whether or not a youth should be treated in a certain fashion in one province different from another province. It is like an opting-in, or a quiltwork. One province might opt in; another province, Quebec, for instance, saying, "No, we are satisfied with the existing system."
Having said that you agree with equality before the law, how can there be equality before the law in the face of this ability of a cabinet in one province to set a criminal standard different than another province? Is that not un-Canadian?
Mr. Rosenfeldt: I think so. Actually, I agree with you.
The Chairman: That may be a question, Senator Grafstein, that you will want to raise with the Canadian Bar Association and the Barreau du Québec tomorrow.
Senator Grafstein: No, Madam Chairman, I don't want to raise this with the bar. What I want to do is find out from the witnesses that come here if they are prepared to support a quiltwork system as it applies to youth offenders when they believe, as Mr. Rosenfeldt and I do, that everybody should be treated equally under the law in every part of this country. I want to hear from these witnesses. We will deal with the constitutional lawyers. We have dealt with them before. Let us hear the public. I am delighted with his response, because I share it.
Senator Beaudoin: I would like to come back to this question of the justice for youth and justice for everybody and the question of section 15 of the Charter of Rights and Freedoms. We have equality under the law and are all equals. This does not, however, prohibit a different system for young offenders. The philosophy behind that system is quite different. I refer to the third paragraph on page 4 of your brief, which reads:
The minister is correct in her assertion that the YOA was flawed and she pointed out some of those problems. Yet, she did not explain why changes could not simply be made to the YOA to address these problems, such as more victim involvement, reintegration, transfer to adult court process, et cetera.
This is a difficult area of law, because we have the power to legislate in criminal law. That has been liberally interpreted by the courts; we are on very safe ground. But the protection of youth is not entirely federal. The educational and social aspects would come under provincial legislation. Of course, the Constitution is the same for all the provinces, and all provinces are equal in that precise area.
I think that is the only way to deal with the problem of young offenders. We must have a system that is different for a person of 12 years and a person who is 21 or 22 years old. We have to accept that. We have to accept a system that will be the same in all the provinces; I agree with that also. I do not think that it is against the principle of equality before the law. I think that the philosophy has to be different.
If there is a criticism that we hear on Bill C-7, it is that the two systems are not perfect and the system for youth is pretty close to the system for adult persons.
You are "sur le terrain," as we say in French. What is your opinion on this? Do you agree that the system that is contemplated in this bill is a good one? Will it work? Is it significant enough to solve the problem of the violence among young people?
My question is not a legal one, but about your experience "sur le terrain."
Mr. Rosenfeldt: Over the years we have dealt with many victims of violent youth. I am not an expert with regard to the youth who commit the violence. We do not deal with them. However, I can tell you case after case where individuals used the law to the fullest extent knowing that they will not be held fully accountable for what they do, they go ahead and commit the crimes.
I knew a father back in Calgary, Alberta. He had two sons. He said he lost both of them to the Young Offenders Act. One of the children was overweight. This boy was stabbed to death in a schoolyard simply because he was fat. That was the reason given. There was no system in place to deal effectively with the bullying he experienced on a daily basis. The child was afraid to go to school; he lived in fear for his live. Eventually he was murdered in the schoolyard. Nobody held the offenders accountable in that case.
After his brother was murdered, the other son began acting out. He began committing violent acts. He knew he could get away with anything; he did anything and eventually committed murder. That is why the father believes he has lost two sons to the Young Offenders Act.
So I am not so sure that what we have done over the years has been right with regard to dealing with young offenders in this country.
My nephew is a social worker, who works with young offenders. He was in northern Saskatchewan on a canoe trip with young offenders. You have to wonder about that, because that is all part of the rehabilitation package. However, I know there are many kids who never get to go on canoe trips. Just those who commit offences, in many cases, get to go on canoe trips with Saskatchewan Social Services.
These two young offenders who were on probation started harassing other people at the campsite. Then they physically threatened to attack one of the other female social workers. My nephew put up his hand to stop them and the youth ran into the palm of his hand. The social worker, within hours, was up on charges of assault by the young offender, 14 years of age.
Young offenders know their rights, believe me, and know how to get away with things. The charges against my nephew were simply dismissed, thrown out of court. However, it can be very difficult for social workers trying to work in the system with many of these young offenders. The young offenders will know everything in this book. They will know how to manipulate the system.
Senator Beaudoin: Are you still of the opinion that justice is not necessarily the same for the young and for adults?
Mr. Rosenfeldt: That is right. I think you have to have different systems.
Senator Beaudoin: The system is fundamentally right to have two systems?
Mr. Rosenfeldt: Yes.
Senator Beaudoin: In that sense?
Mr. Rosenfeldt: In that sense. I agree.
Senator Beaudoin: Obviously, there is a huge difference between a 12-year-old and a 20-year-old.
Mr. Rosenfeldt: I agree with that.
Senator Beaudoin: Would you say that the legislation that we have now is better than that introduced with the new bill?
Mr. Rosenfeldt: That is part of Mr. Sullivan's bill. I tend to agree with him with regard to it.
Senator Beaudoin: You tend to agree with that?
Mr. Rosenfeldt: Yes.
Senator Beaudoin: But if ever we do, that we would have to amend the bill anyway. We would have to amend one bill, the previous one.
Mr. Rosenfeldt: This bill is 182 pages - three times the size of the Young Offenders Act. I am not sure that we need 182 pages of written documents to deal with young people who break the law in this country.
Senator Beaudoin: You may be right.
We have a debate in constitutional law. Some constitutions are only 15 pages and some others are 100 or 200.
Senator Joyal: I have two questions, and I will put them to each of you for comment. I would like to come back to your brief at the top of page 5, at the third line of the paragraph, where you state: "In fact, many witnesses expressed grave concern that the YCJA is closer to the adult system than the YOA was."
If that is your view, could you explain in greater detail as to which aspect of the bill you are referring to?
Mr. Rosenfeldt: That is Mr. Sullivan's paper.
Senator Joyal: My second question is about your last recommendation. I will read it. It is two lines on page 8. Recommendation 16: "Amend Bill C-7 to include a provision to require Parliament to review this act within five years of its taking effect."
I have a similar concern about the implications of the implementation. Could you expand on your reasons for believing there should be a monitoring of implementation and that Parliament should be given an opportunity to review the results of that bill after five years? Why did you choose five years?
Mr. Sullivan: Thank you for the question. I will start with the last part first.
We have seen other legislation such as the Corrections Conditional Release Act that, in essence, brings in a whole new system. This act will do that with young offenders. It is important that we take the time down the road to review whether we did the right thing or the wrong thing. A lot of people who work within the current system suggest this is the wrong thing to do. We picked five years because that is what other legislation has used. It seemed to be the standard. The mental health provisions in the Criminal Code had a five-year review period, as did the Corrections Conditional Release Act. In this period, we can determine what is working and what is not. If there are problems with the act, then we can try to fix them.
I hope my concerns about this bill are wrong. I hope everything works in the Young Offenders Act. I hope everybody else is wrong as well. However, whether the committee accepts our recommendation or another period of time, I think it is appropriate that Parliament step back and say, "What did we do right and what did we do wrong? Let us address the issues we could have done better."
In response to the first part of your question concerning the adult situation, we agree that we should be treating young people differently than adults. I am not sure the bill does that. Let me preface that by saying I do not intend to say young people shouldn't have any legal rights or protections. That is not the case.
However, we are teaching young people in our homes and schools and in our everyday lives that it is a really good thing if you do something wrong to tell the truth, to own up and accept responsibility for it, yet we go into our court system and we do the opposite. We encourage people not to tell the truth. We tell them, "Do not talk to the police until you have talked to the lawyer." Often the lawyer says, "Do not talk to your parents because they want you to plead guilty, and we do not want you to because we can get you off." Rather than doing what is best for the young person - which might be getting him help - they interpret their role as getting him the best sentence they can.
That is what we teach adults in the adult system. That is a whole other area, and I do not think it is a good lesson either. However, if we are treating young people differently, then let us do that. Let us go beyond having a different sentence and different protections on their identities. Let us teach them that it is appropriate to tell the truth and accept responsibility for what they have done.
We should be interpreting the legislation more liberally than we normally would. There are extra protections for young people who make statements to police. There were some amendments that state that if a technical issue arises, a statement can still be made. I think that is a positive thing. It makes sense that if a young person makes a statement and a technical error is made by the police - because it is a very complicated procedure with young offenders - that that statement will stand.
There is a provision, section 10(4), where, if the young person admits guilt and agrees to go through an alternative measures program - you must admit guilt to do that - and then does not fulfil the requirements of that community service, the fact that that person admitted guilt is irrelevant. The police cannot longer use that information before a court.
In those respects, I think that we are moving more to the adult system. We did that when we moved from the JDA to the Young Offenders Act. Now we have gone even closer.
Senator Joyal: Last summer the Solicitor General published the result of the national consultation. Does your brief reflect the general tone or content of the recommendations included in the national consultation with victims of the crimes?
Mr. Sullivan: I think so. There were some principles in that document stated by victims. Most significant were the needs to be kept informed and to have a voice in the system. They just want to know what is happening. I think we have applied those principles to the Young Offenders Act. They want a voice at different stages of the system. They should have a right to information about what steps are taken with the young person, and what the outcomes of those steps are. In Mr. Rosenfeldt's brief as well, we have applied the principles.
Whether you are a victim of a young offender or an adult or a parolee, your needs are the same. Information and a voice are the two principal needs.
Senator Joyal: Do you not make a distinction between the needs of the victims when a young offender is involved and when it is an adult?
Mr. Sullivan: I think they are the same. There are more opportunities for a young offender. For example, victim-offender reconciliation programs can be much more meaningful for young people than adults. But the victim's needs and concerns are pretty general, I think, whether the person is a young person or an adult.
Senator Fraser: Mr. Sullivan, I noticed with some interest your call for insertion of "protection of the public" in the preamble. I am a bit puzzled here. I see, however, that in the declaration of principles, "protection of the public" is the first principle enunciated, in section 3.
I have always understood that a clause like that - that is actually in the body of the law - carried more weight than a fine, flowery statement in a preamble. Why are you not satisfied with that?
Mr. Sullivan: There are two reasons. We could say that about anything in the preamble. If it is meaningless, then let us just not have a preamble. I think the preamble provides a guiding statement that this is why we are doing this and these are the goals we are trying to achieve. You are right that the declaration of principles, because it is in the legislation, has more interpretive weight. I would think if we were going to have a preamble, that is the major principle to state, that one of the major goals of the legislation is to offer the public some protection.
In addition, the declaration mentions "long-term" protection of the public. I think we should focus on short-term protection as well. Sometimes that means putting people who have committed very serious crimes away from society so they can receive the help that will give us the long-term protection.
I take your point that the protection of the public is noted in the declaration. I just think that it is focussing on long-term. I think we just want to say "protection of the public."
Senator Fraser: I have a brief comment. I do not think "long-term protection" means protection we will achieve one day in a distant future. If you look at the French, it talks about "protection durable," long-lasting protection, rather than something that we aim to get to one glorious day.
My second question has to do with the publication of names. I can truly understand why victims would want to know that justice is being done. I have some difficulty even with the victim, necessarily, knowing the name of the young person involved. Leave that for the time being, however; let us assume that the victims know the name. The bill gives victims the right to access the records of the young person, in some cases for quite a long time.
I am coming back to the point that Senator Andreychuk was making. What further community good is served by making that name available to the general public?
I think, for example, of Steven Truscott, who, if my memory serves, had to change his name because it had been all over everywhere, and then it turned out the poor guy probably did not do it anyway. That name, nevertheless, because the crime was so spectacular, has become part of the Canadian consciousness even though the adult who was born with that name is living a blameless life somewhere. That is a terrible price to demand of somebody. What is the community good served here?
Mr. Sullivan: I will just briefly comment, because Mr. Rosenfeldt spoke more to that in his brief. The bill focuses on those young offenders who have committed the most serious crimes and are transferred to adult court.
Senator Fraser: For sentencing.
Mr. Sullivan: Yes, you are right. There are no more transfers. There is also a principle with accountability, "I did this and, yes, I am a 16-year-old, but I committed this very serious crime and I am accountable to the community for that. The state is the one that punishes me."
Frankly, anybody who goes into a courtroom can hear the person's name. If the whole community wanted to watch the court, then they could do that. But I think there is a principle of accountability involved in that. The government has focussed only on those who commit the most serious crimes - which are fortunately few. The majority of the protections for young people will therefore remain. I think Mr. Rosenfeldt recommended expanding that.
Senator Fraser: Gentlemen, I am sorry. I should have directed the second question to you, Mr. Rosenfeldt.
Mr. Rosenfeldt: I am talking protection of the society in the case of sex offences and some very serious crimes. I believe that people in the community have a right to know; that names should be published of people who commit serious crimes.
Senator Fraser: Even if that turned out to inhibit rehabilitation?
Mr. Rosenfeldt: I do not believe it would inhibit rehabilitation. First of all, it will create accountability to some degree, with the young person accepting responsibility for what he did, because people would know about it. But what I find horrific is that today young people can commit some of the most heinous crimes imaginable and their names are protected. Look at the case of young Sylvain Leduc murdered here in the city. Three young offenders are involved in that. We are talking about torture and murder. We are talking about inserting a curling iron in a young boy's anus; we are talking about horrible, unimaginable crimes. Those young people do a stint in prison and are back out in the community. You might hire them to baby-sit your grandchild. I have a problem with that.
Senator Fraser: I think I understand your position.
Senator Pearson: I have two questions. One is not too relevant to Bill C-7, and I will direct it to Mr. Rosenfeldt and the Centre for Missing Children. How do you work with the RCMP at the Centre for Missing Children?
Mr. Rosenfeldt: Very closely. The RCMP has a missing children's registry. We deal mainly with stranger abductions. A young child went missing in Alberta a couple of months ago, and was later found murdered. What happens in that case was, we get the information from the Lethbridge police department. We have three printers that print posters and information on missing kids. We work with the Royal Canadian Mounted Police. They work with us.
In our missing children program, through Canada Customs, we distribute all the pictures. When that child went missing, we sent pictures to the RCMP. They sent them out to all Canada Customs offices. So we are involved in the printing of posters and we work with the RCMP, yes.
Senator Pearson: Do you work with Child Find in the same way?
Mr. Rosenfeldt: Child Find is a totally different organization. There are only a few missing children programs in Canada approved by the RCMP. You'll find them on our website. Child Find is one, as are we.
Senator Pearson: I was interested to hear that.
My question is more to Mr. Sullivan, about the YOA as opposed to this law. How do you respond to the fact that Canada incarcerates more young people than any other country in the western world? What would you do about it?
Mr. Sullivan: The minister has mentioned this a number of times. That is one of the reasons she has brought in the new bill. I share the concern that she has.
However, where I differ is that I think that this bill is not going to be any different. One of the reasons that we incarcerate so many young people is because there are no other options. Senator Andreychuk talked about this. There is nowhere else to send them. If there are no community programs and the only option a judge has is custody, and this person has been before the judge a number of times, he or she has to choose custody.
The solution is more community programs. The fact that this bill has 10 pages on that, as opposed to three paragraphs in the YOA, I do not think will make much of a difference. Where the difference will come is resources. Quebec has one of the most progressive youth justice systems in the world. It did that on the Young Offenders Act, because it put money into the community.
Senator Pearson: That is because they had the Youth Protection Act to work with.
Mr. Sullivan: Yes. You are right. However, they also recognized that if you put the resources in the front end, you save money in the back end.
The fact that the government is giving more money to the provinces and encouraging them with that money to have more programs will bring down the incarceration rate, if anything does. It will not be the fact that we have a new law.
Senator Cools: I would like to welcome the witnesses. I think they know that I have a lot of respect for the work that they do.
I would like to move from a point that Mr. Rosenfeldt made to see if we can gain insight into a part of this business that is very troubling and bothersome. Mr. Rosenfeldt had said that some young people commit the most heinous crimes. I notice that Mr. Sullivan's paper states that homicide was down 9 per cent to 41 murders.
Mr. Rosenfeldt said that some of these young offenders are very sophisticated. They know the system and its processes, and they know their rights. There is nothing wrong with people knowing their rights - children too. What is wrong is young people having no respect or empathy for other peoples' rights and having the instinct or the impulses to hurt or to violate, whatever the form of the violation.
I am especially interested in the transfer of young offenders to the adult system. Mr. Rosenfeldt and Mr. Sullivan, I wonder if you could give us some insights and refer us to some profound knowledge and studies, if possible, on the phenomenon of what I would call children who have been robbed of their childhood and robbed of all innocence, children who have been corrupted either into criminal deviance or sexual deviance or into criminal impulses. It is so disturbing an issue.
I do not know if any of you have had the experience, for example, of working with children who have been terribly sexualized. It is a frightening tragedy. I know of one case that a child was so sexualized that the workers working with this child had to hold on to the child at all times, because if it came into contact with other children it would immediately sexualize the other children.
This is something that tugs at the heart. I heard of another case where the mother used to farm her child out for different sexual acts. The first therapy the lovely, kind worker had to perform was to persuade this little child to dress in clothing appropriate to the child's age. This child would show up with all kinds of seductive dress.
I wonder if you could give us some insights into some of these young people who have been so corrupted that they have developed very adult cunning. I do not want to say "adult," because that suggests age, but very immoral, terrible cunning, terrible impulses. Quite often those impulses become all the more terrible because as terrible as those impulses are, these people are still so young that they do not often have the maturity to understand the full consequences of the damage they are causing to other people.
Could you talk to us a little bit about that? When we hear of the "young offender," I think it is that type of offender which springs into people's minds rather than the unfortunate young individuals who were caught up in break and enters and lesser offences. If we could get some insight into that, I think we might be able to be of some use.
Mr. Rosenfeldt: From personal experience, when you talk about those things, I can think back to quite a number of young people we have had doing volunteer work with us. It tears your heart out to see some of the situations we have been faced with.
One young boy was working in our court-ordered work program with us. He was about 12 years of age. One of the other boys told me one day that this child had some serious problems with his leg. I took a look at his leg. It was all infected; it was full of pus and scabs. We took him to a hospital immediately. The other kids told us that his mother does not care. It is as simple as that. Nobody cares about him. He has got zero people to care about him.
You see those kids coming through the system. Talk about contact with the outside world: He lived in his own little world. Nobody cared about him. In that case we were able to get help for him. However, when children live like that on a daily basis, scrounging for food around the house, nobody caring whether they eat any meal in any day. This young guy was sleeping on the living room sofa. He never had a room. He always had to think ahead. Nobody cared whether he slept on the sofa every night.
That was a few years ago. We have run into a number of kids like this over the years. I have often wondered how he fared in the system. He was up on charges. But we have dealt with it in the past on a regular basis.
Then we have another type of young person that we have dealt with: those who have been sexually abused as children and who eventually get into alcohol and drugs, attempt suicide, and other horrible, tragic situations. Again, the response by the justice system further frustrates these young people that we deal with.
A young lady who was a model once came to see me. We were able to assist her in getting back a total of 10,000 pornographic pictures that had been taken of her. She posed for a catalogue; you would probably all recognize her. The photographer brought her and her friends back in the evening and took tens of thousands of pornographic pictures of all these kids. He rewarded them with alcohol and drugs. A few years later she came back and she wanted assistance in trying to get it through the system.
We eventually got charges laid. At that time, the man was 70-some years of age. I talked to the prosecutor on the phone, and he said, "What are you trying to do, put an old man in jail here? She got her pictures back. What is she so concerned about?" She had attempted suicide on three occasions. She was still afraid that copies of the pictures were still being distributed around Canada on the Internet.
These are situations we deal with on a regular basis. The justice system is not responsible to these young people. The justice system did not assist that young lady. That photographer who committed those crimes against probably hundreds of children over a period of time probably pled guilty to a lesser charge, and they took away all his photographs, or he got rid of them because he knew the police were coming. That is the end of story.
So it is really tragic, a lot of the stories we see. I think we are always going to have some of these things in society. It goes back to what I was talking about with Senator Andreychuk. I think the sooner in some of these children's lives that police and courts can become involved, the better.
I have known many young people over the years who developed a trust and relationship with police officers and judges and have benefitted from it in the long-term. They are more open to some of these people. I am not putting down social workers, but they do not always have the time and resources to spend on some of these kids.
Police are more adept in understanding there is a problem with the child. When the child is missing, police officers are the ones who can ask: Why is the child missing? When there is pornography being made with a child, a police officer is much more knowledgeable about pornographers and who is committing these crimes against the child. Often they know the right questions to ask of the children to get the right answers to lay the charges against the person.
Senator Cools: Chairman, are we planning to bring some witnesses who could provide us with some insights? I think this is one of the crucial problems. Will we have some witnesses who can help us look at that whole process of the corruption of children? You dwelt on some of the other cases but I was thinking of the violent, aggressive ones. Remember Mr. Brown of Browndale School? Some -
The Chairman: Senator Cools, we will not go into individual names right now. I am going to circulate the names of the witnesses that we have before us and the Steering Committee has agreed on so far so that everyone can have a look at it and have input if they wish to.
Senator Andreychuk: Just as a point of order, could we know in advance approximately what the steering committee was allocating for each witness? I think we could spend a lot of time with each witness and could be more efficient and helpful to you if we knew the time you have allocated per witness.
The Chairman: I noticed when the notice went out this time there was not a time specified for the different witnesses to appear. From now on there will be. I would suggest that we try to self-edit our questioning within this period.
Senator Andreychuk: It would be helpful to know the time you intend to end because we have other committees that we sit on.
Senator Beaudoin: Especially for the panels.
The Chairman: Precisely.
Senator Andreychuk: My question is for Mr. Sullivan. One difference between the Young Offenders Act and the new Youth Justice Act is that we are moving the adult consequences to the sentencing period and are trying to maintain more of the youth concept.
However, on those very serious violent crimes that really go into Youth, the signals and click-in points are at the start of the process.
I understand that what was intended was to make sure that we treat youth more as youth for as long as we can. But because they will then suffer the consequences of adult sentencing, we then have to go back into the system putting in judges and juries and selections and elections and all of those things, which muddies that intent to keep it pure youth.
Do you think moving these consequences but still having some impact on the front end really separates the system and makes it more of a youth justice system than the YOA had by the transfer provision?
Mr. Sullivan: I think the amendments to the transfer provision, in one sense, we support, because it always seemed backwards to determine if someone would go to adult court before they were actually convicted. Now they will be convicted before we decide how they will be sentenced. At the same time, you are right; because we do not know they will be sentenced as adults, they will get all the protections adults would have even if they stay in youth court.
That is probably one of the areas where we are going more into the adult system. Overall, the philosophy behind the change was a positive one. I do not know if that answers your question very well.
Senator Andreychuk: I do not know to what extent you were into the practitioner's field. You are indicating that you think the philosophy may be better. I am concerned about the practicality when we try to start implementing all those new provisions that are going to maintain youth court, but we have had to back in and put in elections and some of the other procedures of adult court. Will that confuse young people even more and make them more cynical? Is it going to be more helpful if our long-term goal is rehabilitation?
In other words, is there more for them to manipulate or is it going to be more for their safety and for their learning and rehabilitation?
Mr. Sullivan: One thing the minister said is that this will make the process quicker if we do it at the end. I am not sure that is so. With the practicalities you have mentioned, all the young people who might have had an adult sentence will get the judge and jury trials, whereas before only those actually transferred out of adult court got those. Practically, I think the courts will be more bogged down.
Having said that, however, if we give young people adult sentences we should give them the same protections we give adults. I do not know that those specific provisions will teach young people the wrong lesson about accepting responsibility. I think they learned, unfortunately, the bad lessons long before that.
Whether it will affect rehabilitation in the end I do not know. However, I think it is important that if we are going to give young people adult sentences they should be given those protections that we would give to adult people.
Senator Beaudoin: The point raised by Senator Fraser is of interest for me because of a case we often quote, the Sussex case of 1924. "Justice must not only be done; it must be seen to be done." I am, hence, inclined to think we may have very good reasons not to mention the name of a young offender. To what extent, however, are we going to do that?
After all, eventually the public should eventually know the name. How can one justify that the name never be mentioned? You see, after all, justice should be done in public. It is part of the rule of law; it is part of our convention. Justice should be done, we all agree; but it must be seen to be done.
I understand the protection that we give to young people, but there are some limits. I am not sure that we can keep the name a secret for eternity.
Senator Pearson: We do now.
Mr. Rosenfeldt: This is part of the problem faced by victims. Victims do not see justice being done, especially when the name of the person who committed the crime is hidden. No matter what the sentence the point is that in their eyes justice has not been seen to be done. That is the problem.
Senator Beaudoin: That is exactly my point. We cannot resurrect the body of a person who has been killed. The failure to mention the name may be justified sometimes, but I have some doubts about it. Having regard to human nature, we normally want to know who has done this and who has done that.
Mr. Rosenfeldt: That is right.
The Chairman: I strongly suspect, Senator Beaudoin, that we will hear from both police and educators' associations - educators in particular - saying that they need to know so they know appropriate methods of treating these children when they come back into the school system.
Senator Grafstein: I have a follow-up question about the proposition that if we are to give adult-like sentences, then we should therefore have adult-like protections. Does that include children between the ages of 10 and 12?
Mr. Sullivan: If you were to give 10- and 11-year-olds adult sentences, then perhaps. Under the terms of this bill, we are not able to give a 10- or 11-year-old any sentence.
Senator Grafstein: I am talking about the possibility, under this provision, that a 10-year-old could be moved up to adult court.
Mr. Sullivan: There is no such possibility under the terms of this bill.
Senator Grafstein: Give me your view about a 10-year-old.
Mr. Sullivan: We have recommended that for 10 -and 11-year-old children who are alleged to have committed serious offences, there should be a special mechanism to transfer them to a youth court.
Senator Grafstein: It is similar to the transfer provisions we have at a later age. That really was not the substance of my question.
We are all struggling here with a model that solves two problems: namely, to deal with the youthful offender in an appropriate way without criminalizing him or her; and, by the same token, being fair to victims. It is a double-edged sword. The recitals are in conflict with one another. There is rehabilitation, and then there is rehabilitation of victims and it is back and forth.
Are you both familiar with the drug court in Toronto, practically the only one of its kind in the world?
Mr. Sullivan: I am aware of it.
Mr. Rosenfeldt: I know that it is there, but I do not know anything about it.
Senator Grafstein: Because of Senator Nolin's leadership we attended in Toronto some time ago. I had heard about the court but had never spent any time speaking to the court officials. People from around the world are now coming to examine this unique process that, in effect, changes the whole process of sentencing in a way that stops recidivism substantially and is much more effective and it gets out of the court system completely.
In other words, Mr. Sullivan makes the valid point that the paradigm of the criminal justice system is contrary to the notion of trying to help children be truthful. You are making them be criminals before they are criminals because they have to be subject to the paradigm of the criminal justice system. This experiment, which I believe is wildly successful, which the Minister has promoted, is nowhere to be seen in this legislation.
Senator Beaudoin: Was it established by statute?
Senator Grafstein: It was established by the federal government, with funding by the federal government, organized by the Department of Justice. People from around the world are saying it is a great alternative model.
What we have another rerun of a failed system that everybody - including those who like it or do not - says is too complex, too difficult, may not work, and may be too costly. We have in Ontario an excellent system that is saying, "Give us a little bit more money and then we'll be much better."
Could you examine that system and attend there?
Senator Nolin: No statute was amended for this system.
Senator Grafstein: No statute was amended. It was an administrative act of brilliance. It is valid and would fit into the existing system without any problem. The reason for that, as you can appreciate, is that 55 per cent of all the criminal justice problems under the court system in Toronto and, I'm sure, across the country, are drug-related. This is a way of removing the agenda and saving cost.
It would be very useful before the committee finishes with the bill, if both of you have a critique of this bill, for you to respond in a letter to say: Is there an alternate model that would avoid the problems of the criminal justice system and yet accomplish the public objective of being fair to young people who are in rehabilitation and at the same time be fair to the families of victims. There are other alternatives.
Mr. Rosenfeldt: Thank you for making us aware of it. I will look into it.
The Chairman: I was also there that day in Toronto and I would like to add that that drug court is for first-time offenders only. Second time around, you go into the normal system.
Senator Beaudoin: They are not allowed to come back. But the clientele of the court are multiple offenders. That is why they created the court, because the vast majority of the clients in the courts are coming back again and again because of the same problem.
Mr. Sullivan: Sometimes the best solutions to the problems we have with young people are not found legislation or, with all due respect, do not come out of Ottawa. They come out of our communities. It is when we can have alternatives to the formal system, which this bill talks about in the Young Offenders Act, will go a long way to rehabilitating young people.
The Chairman: Do you agree with those provisions in the new act?
Mr. Sullivan: We agree with those provisions, and, frankly, they were there in the old act as well.
Senator Nolin: I want to return to your recommendation number 8 dealing with 10- and 11-year-olds. If I understand you, you are saying that under the law, some provinces are making sure that they are using all their powers to achieve social objectives.
Mr. Sullivan: Yes.
Senator Nolin: Yet some other provinces are not doing that. You cite the Earlscourt Child and Family Centre. Where is that?
Mr. Sullivan: Toronto.
Senator Nolin: So is Ontario one of the provinces with social laws, in your opinion?
Mr. Sullivan: I do not think the study spoke to that. Ontario probably would not be one of those provinces.
Senator Nolin: That is my question. You are affirming or referring to a document that is basically saying the system does not work because the "young" under the age of 12, are committing offences and it is falling between the cracks. That is a grave affirmation that you are making. Basically, what you are asking us to do is to amend the bill and force the provinces to do the job.
Mr. Sullivan: Yes.
Senator Nolin: But with all the evidence we have is to the effect that if we are to "judicialize" the system, it will not work.
Senator Grafstein: No, judicializing the administration of justice. That is provincial.
Senator Nolin: "Judicialiser" means going to court. It is the reverse, for the reason that Senator Cools just mentioned. You are going to make them criminals.
Senator Grafstein: That is right. It is both.
Senator Nolin: But that is the recommendation. That is why I am asking about it.
Mr. Sullivan: The question is, what do you do with a 10- or 11-year-old, whether in Ontario or Quebec or Saskatchewan, who has been through the best social services the province has? Do you wait until they are 12 years old and then deal with them?
Senator Nolin: How many people are we talking about? Five?
Mr. Sullivan: Fortunately there are not very may, but I am not sure that that matters. How many young people who commit sexual assault would it take for us to act?
Senator Nolin: Are you convinced 10-year-old children are committing sexual offences?
Mr. Sullivan: We know that there are. I am not saying there are many, or that this is a huge problem.
Senator Nolin: How many people are we talking about?
Mr. Sullivan: Not very many.
The Chairman: How many? Three, four, five?
Mr. Sullivan: There is no reporting for it, so we do not know.
Mr. Rosenfeldt: There is no way to know, no way to track those numbers.
Senator Nolin: I personally have a problem using a federal law to force a province. I think if we are pretending to be in a partnership in criminal matters, it is up to the province and the federal government to organize it properly. It is not by amending the bill that we will achieve that. The answer will be, "Give us more money." We have all heard that many times.
Mr. Sullivan: This is a last resort. Young people have been through the social services and there is still a problem. The provincial social services systems are simply not working.
Senator Nolin: For 10-year-olds?
Mr. Sullivan: For 10 or 11 years old.
Senator Nolin: If you have additional information and documentation, would you please provide it to us? I am not convinced.
Mr. Sullivan: Because these children are not going to a youth court system, there is no tracking of them; there are no numbers to say that in Saskatchewan there are this number or that number. If I had those numbers I would provide them. I do not think there are very many but that should not guide how we treat these young people.
Mr. Rosenfeldt: There are some.
Senator Nolin: At least we know that, and we have federal officers who will come and testify after you. Under the age of 12, in 1977, there were four murders committed by the under-12 age group; in 1991, five; and in 1996, two. If they were able to find that, maybe there is more information. Before I agree with you, however, we must explore that more thoroughly. What you are asking to us do, I definitely cannot support at present.
Mr. Sullivan: I would also point out that the House of Commons justice committee made this same recommendation in 1997.
Senator Nolin: I know. I read that. That does not convince me either. For me to be convinced it is not enough to hear that the House of Commons committee recommended that. Give me more evidence.
Senator Joyal: In the performance of your responsibility, have you dealt with Aboriginal people, and, if so, in which proportion, vis-à-vis the goal of your organization?
Mr. Rosenfeldt: In our organization we deal with many aboriginal people, yes. My wife is aboriginal. Throughout the years I think that a fair number of aboriginal people probably have been attracted to our organization because of my wife's heritage. My wife used to work as an alcohol and drug abuse counsellor at Poundmakers Lodge in Edmonton, working with native people. She has had a lot of experience. She is no longer with the organization. She is Chair of the Office of Victims of Crime for the Province of Ontario. However, we still do deal with quite a number of Aboriginal people.
Senator Joyal: Would you say that generally they are in worse condition than the average young offender when you have to deal with them?
Mr. Rosenfeldt: We are dealing with the victims of their crimes. I think that most aboriginal people experience many of the same problems, but probably to a greater degree, simply because of isolation, in many cases. They do not have the knowledge or the ability to get information, in many cases.
Right now we are dealing with a woman whose son was murdered here in Ottawa and she is from the Northwest Territories. Our organization and the Office for Victims in the Province of Ontario are trying to provide her with the ability to come and attend the court case of the person charged with murdering her son.
However, in most cases, we do not have resources to permit that. Aboriginal people often suffer in silence in their own communities. They do not make the effort, like she did in that case, to contact us. We were able to provide assistance to her. Many of them do not have contact with resources simply because they do not know those resources are available to them.
In the last few years we have seen Aboriginal people becoming increasingly knowledgeable about their rights as victims. They have participated in the process in more recent years.
Senator Joyal: Mr. Sullivan, can you comment insofar as your organization is concerned?
Mr. Sullivan: We have little involvement; few Aboriginal families contact us. We are a very small organization with two employees. We are in Ottawa. I think the majority of Aboriginal victims would not know that we exist.
The Chairman: Thank you very much, gentlemen, for appearing before us. You have put a personal face on victims of crime. I thank you for that.
The Chairman: We have with us now Mr. Roy Jones, the Director of the Canadian Centre for Justice Statistics. Mr. Jones, you have given us a lot of reading material here. Perhaps you will lead us through it.
Mr. Roy Jones, Director, Canadian Centre for Justice Statistics: Please do not be daunted by the amount of paper I have circulated. I had only planned to refer to some of it. I will try to keep my remarks brief and to the point.
By way of introduction, I should mention that the Canadian Centre for Justice Statistics is a full division within Statistics Canada. We work in partnership with the federal-provincial-territorial agencies and ministries responsible for the administration of justice in Canada and Statistics Canada. We work under the authority of Statistics Canada and within its infrastructure.
The mandate of the initiative is to provide to the justice community and to the public information on the nature of crime and the administration of justice in Canada. Most of the data I will be speaking to today comes from member ministries and departments within that initiative. For the most part, the main sources of data I will be speaking to are the surveys that we control within the Centre. Those are across the three sectors of the justice system. In the Policing Centre, it is the Uniform Crime Reporting Survey. In the Court Sector, it is the Youth Court Survey. In Corrections it is the Youth Custody and Community Services Survey.
To provide a more complete picture of justice and crime in Canada, the Centre also uses other source data in its publications and analyses.
For example, where we are assessing the characteristics of crimes not reported to the police, we would use the Victimization Survey that was run most recently in 1999 through the general Social Survey Program. This survey covered a representative sample of Canadians in all provinces of 15 years of age and older, to give us estimates of their experiences of incidents of crime according to definitions you would find in the Criminal Code but not across all crimes.
We have also launched a number of longitudinal surveys, which we are very pleased to see launched. The most important of which, in this context for justice, is the National Longitudinal Survey of Children and Youth. This survey includes delinquency behaviours and victimizations for children as young as 10 who are self-reporting these activities. As the panels go through the collection of information over the years it will provide a very rich database against which we can analyze family contexts and experiences - not just within the justice system but also in schools and at home.
So we are pleased about the development of that area of statistical development and the support we have been receiving from other departments both federally and provincially to undertake that.
I wish to refer to the handout material that I brought with me. I brought two copies of Juristat as reference material for your use when you listen to other testimony later in the process. The first of these is the Annual Release from Youth Courts Survey, which was released in May 2001.
I also brought a copy of "Children and Youth in Canada," a profile that includes a broader and integrated set of data, some of which has been derived from surveys outside the Centre for Justice Statistics. Finally, I brought an issue of Juristat entitled "Problem Behaviour and Delinquency in Children and Youth." This is one of the first analyses we have dedicated to the justice area that takes advantage of the data collected through the survey I referenced on the Longitudinal Survey of Children and Youth.
If we could turn to the first figure with the title, "Trend in the Rate of Youth Charged, Canada." There is a small text box at the bottom of that chart that I would like to refer to first.
In 1999, youth within the age jurisdiction of the Young Offenders Act represented 8 per cent of the total population in Canada. Projections using a medium-growth model of birth and immigration suggest that this population - specifically, the population 14 to 17 - will increase slightly over the next five years, peaking in 2006, and then will begin to decline slightly thereafter. That provides you with the general frame of where the population at risk is going.
Turning to the graph itself, the youth crime rate is commonly measured by the rate of youth charged with Criminal Code offences. As you can see from the graphic here, we have a trend that dates back to 1985. At the end of the graphic for the total Criminal Code line, you see a very slight increase in 2000 to just over 4100 youth charged per 100,000 youth in the population. You will note that the rate decreased annually since peaking in 1991 at a level of 6300 per 100,000. Throughout the 1980s there was an annual increase in the overall rate.
It is somewhat difficult to see on the scale of this graphic, but the youth-charged rate for violence offences has been fairly similar in that pattern. It did increase in 2000 by about 7 per cent, having declined from 1995 onward. That increase at the very end of the time period is predominantly driven, in the case of violent offences, by common assault.
At the other end of the scale for violent offences, we have homicide. That point came up earlier in terms of the numbers that we are dealing with in terms of youth jurisdiction. These numbers have been very low historically, and continue to be low. They fluctuated between 41 homicides attributed to youth in 2000 to a maximum of 68 in 1995. We really are dealing with a relatively rare event.
Turning to the property crime rate, you will see from the graphic that it has dropped in 2000 as well. The rate declined beginning in 1992 after having increased throughout the 1980s. In terms of compositional offences, property crimes account for nearly half of the overall youth crimes. Nearly 22 per cent are violent offences. This is a change from a decade ago, when only 12 per cent were charged with violent crimes and almost two-thirds were charged with property offences.
To account for that, we have seen an increase in youths charged with common assault, being charged formally with offence by police, and a decrease in charges for things such as theft and break-and-enter. That accounts for the general shift in those trends.
Now, a remaining one-third of youth in the total youth charged with offences come under "other" Criminal Code offences. This would include damaging property, predominantly, and mischief, along with administrative justice offences such as violating conditions of release and escaping custody.
For the sake of the scale of the graphic, we did not include the drug charges on here, but I thought I should mention those as well. In the case of youth charged with drug offences, the number of offences and rate of offending have fluctuated quite a bit over the last period of time. However, the rate generally began to increase throughout the 1970s and has reached a point where 7,900 youth were charged with drug offences in 2000. That is a rate of about 300 per 100,000 youth, so you can understand the difficulty of putting it on the same graphic as some of these others. However, it is a number that I thought would interest you.
Senator Grafstein: That is excluded?
Mr. Jones: That is not in here. These are Criminal Code offences, which do not include charges under controlled substances or historically FDA or NCA charges. However, the trend I described depicts a similar pattern, although the drug charges have escalated during the 1990s contrary to this general pattern.
Senator Grafstein: Is there a correlation between the drug charges and the common assault, in other words, the common assault of people that have drugs? Have you a correlated figure between the two?
Mr. Jones: No, we do not.
Senator Grafstein: Or serious crimes and drugs?
Mr. Jones: No, we do not.
Senator Grafstein: Your figures are for youth aged 12 to 17. Our bill is covering ages 12 to 16. For the moment there is an option that goes down from 16 to 14, so it is a graduated scale. If you extrapolated the 17-year-olds, where would the 17- year-old numbers be as opposed to earlier ages?
Mr. Jones: I have a graphic under figure 5 that provides the age-specific rate.
Senator Grafstein: Are Aboriginal numbers included in this chart or excluded?
Mr. Jones: These are all Canadians.
Senator Grafstein: All in?
Mr. Jones: Yes, all in.
Mr. Jones: In figure 2, a chart on youth charged with property offences by gender for 1985-2001, shows the charge rate for property offences has dropped for the ninth straight year in 2000; it dropped 4 per cent in the last year. The relationship between the male rate and the female rate for youth charged is in the latter years roughly a ratio of 3:1.
Similarly, on figure 3, there has been a concern raised about the increasing violence among male and female youth. This chart shows that the rate for male youth charged with violent crime has generally increased in the period 1985-1995 but then has declined between 1996 and 1999.
The rate for female youth charged with violent crime has generally increased between 1985 and 1993. Again there was a hiatus, and then the female rate continued to increase between 1995 and 2000. It is hard to see on this graphic, but there has been persistence in the rates for female youth charged.
The overall rate for male youth charged with violent crime in 2000 was about 1300 per 100,000. That is roughly three times the rate for females.
Senator Beaudoin: Number 4 needs explanation.
Mr. Jones: I will turn to Figure 4 now.
Senator Beaudoin: There is a big difference between the territories and the provinces.
Mr. Jones: Yes. You will see the overall rate for Canada here for all youth charged for all offences is a little over 4100 per 100,000 youth, ages 12 to 17.
The rate in the territories - Nunavut, Northwest Territories and the Yukon - are typically higher than provincial rates. However, because these are rates expressed per 100,000, they fluctuate widely from year to year. We typically do not highlight the rates per 100,000 for the territories, but to put them on the same scale we have kept them on this graphic. Among the provinces, Saskatchewan, at a little over 10,000 youth charged per 100,000. Manitoba is at a little over 7,000.
Senator Andreychuk: Madam Chairman, as the fire alarm is sounding, perhaps we should adjourn?
The Chairman: Senators, do you want me to adjourn this meeting and perhaps call Mr. Jones back if we need to? Then we will have time to have looked at these materials.
I apologize, Mr. Jones. Perhaps you could circulate the notes from which you were speaking from, together with the translation. Thank you for coming. This meeting is now adjourned.
Mr. Jones: May I send the notes to you, because they are handwritten?
The Chairman: Please do. Thank you very much. I apologize for what has happened.
The committee adjourned.