Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence for October 25, 2001
OTTAWA, Thursday, October 25, 2001
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:45 a.m. to study Bill C-7, An Act in respect of criminal justice for young persons and to amend and repeal other Acts.
Senator Gerald-A. Beaudoin (Deputy Chairman) in the Chair.
[Translation]
The Deputy Chairman: This morning, we have with us three representatives from legal aid in Quebec. They are Ms Diane Trudeau from the Commission des services juridiques of Montreal, Mr. Mario Gervais, Bureau d'aide juridique of Longueuil and Mr. Benoît Gingras of the Bureau d'aide juridique of Quebec. We also have with us today Ms Carol Letman of the Criminal Lawyers' Association and Mr. William Trudell of the Canadian Council of Criminal Defence Lawyers.
I would ask you not to exceed 10 or 15 minutes for your presentations, because we have many witnesses this morning and committee members generally ask a lot of questions.
Ms Diane Trudeau, Commission des services juridiques of Montreal: I represent the Montreal legal services commission. I would like to thank the Standing Senate Committee on Legal and Constitutional Affairs for giving us this opportunity to comment on Bill C-7.
We limited our remarks to three major themes. However, we can answer questions on other aspects of the bill. I will be talking about the difference between the declaration of principles in the current legislation and the one contained in Bill C-7. I will also be discussing how, under the new legislation, it will be very difficult to promote the rehabilitation of young people on the basis of their needs.
Mr. Mario Gervais will discuss the general law on the admissibility of extrajudicial statements as described in clauses 146 and following. Mr. Benoît Gingras will discuss clauses 61 and following, which deal with adult sentences, or what is known as presumptive transfers.
It will be very difficult to interpret the new legislation as one that is not different philosophically and practically from the current one, which acknowledges young persons' needs as regards rehabilitation. In considering how an act should be interpreted, we have to check the legislator's meaning and intent. A number of Supreme Court decisions have confirmed this, including Delisle v. Canada, in 1999, which sheds some light on the way to determine the legislator's intent. This decision states and I quote:
Legislative intent must have an institutional quality, as it is impossible to know what each member of Parliament was thinking. It must reflect what was known to the members at the time of the vote. It must also have regard to the fact that the members were called upon to vote on a specific wording, for which an institutional explanation was provided.
What was this institutional explanation? If we go back to 1998, at the beginning of the renewal process, the government said that the bill was designed to give Canadians a youth justice system that would protect society and teach values such as accountability, responsibility and respect. The idea was to try to prevent an increase in youth crime and the significant consequences this would entail.
There was no change in philosophy when Bill C-7 was introduced. The government said that the bill was designed to provide a system whereby young people would have to face genuine consequences for their acts. Canadians know that this is the most effective way of ensuring that society is protected.
The government also said that the youth justice strategy recognized that the protection of the public must be the main objective of a new youth justice system, and that this bill marks a new approach to youth justice and a significant reworking of the youth system designed to provide for consequences geared to the seriousness of the crime. We think this introduces an imbalance in long-existing case law, particularly the Supreme Court judgment in R. v. J.J.M. The objective of this balance was to have a special system designed to rehabilitate young people rather than incarcerate them.
We must understand that when young persons are sent to a youth custody facility, the intention is to rehabilitate them, not to incarcerate them. We are often criticized in Quebec and told that young people spend too much time for minor offences in youth custody facilities. However, when they are there, the objective is to rehabilitate them, not to incarcerate them. It is very important to understand this distinction.
When we say that the declaration of principle is very different from the one in the current act, we mean that under Bill C-7, it will not be possible to interpret it in such a way as to reach the same objectives and rehabilitate the young person. The principles set out in this bill are based on adult justice principles.
There is reference to just and proportional responsibility and significant consequences - which, in passing, was translated by "perspectives positives" in French and "meaningful consequences" in English - and the long-term protection of the public. These are all principles the judge would use in determining the sentence. The judge must also take into account the young person's rehabilitation and reintegration, but these aspects are not considered at the same time as the protection of society when the sentence is determined. The judge will not be able to achieve the same objectives in providing appropriate sentences. The preamble mentions that society must meet the needs of young persons and help them.
That is a fine-sounding principle. However, even if the law of interpretation states that the preamble is part of an act, the doctrine and case law show that the preamble does not have the force of law. The preamble is for information purposes, it merely sets out Parliament's good intentions. If it contradicts the principles I mentioned, the declaration of principle takes precedence.
I will turn the floor over to my colleagues. I will answer your questions on this subject, and on the Charter of Rights and Freedoms and the 1867 Constitutional Act, and whether or not there is a power to issue an order allowing the provinces to establish an age for transfer, which is found in clauses 61 and following.
Mr. Mario Gervais, Bureau d'aide juridique of Longueuil, Aide juridique of Quebec: One of the major changes introduced by the bill is to the rules of admissibility as evidence of statements made by young persons to police officers. The law relating to the admissibility of statements made by young persons to persons in authority or to peace officers are set out in clause 146 of the bill. To summarize these new provisions, they will give the courts a discretionary power to admit the statements into evidence, even if the rules are violated, first, to the extent that there is a technical irregularity, and second, to the extent that the court feels that the admission of the statement would not bring into disrepute the administration of justice. The legal aid community disagrees with this change, because we think section 56 of the current Young Offenders Act must be maintained. It states clearly the conditions that must be met in order for a statement to be admitted as evidence.
To summarize, in our legal society, criminal liability is set at age 12, because, as a society, it is felt that people understand the concepts of good and evil well enough to know what an offence is, even though the Criminal Code with its list of offences more or less sets this out.
I would like to draw the following analogy: why, in the case of a 13-year-old child, is ignorance of the law no excuse? In some cases, the situation can be quite complex. Under the rules on complicity, it takes a number of lawyers to determine criminal liability in cases where a distinction must be made between passive presence on the premises where an offence is committed and the beginning stages of participation in the offence. Young people aged 13 could never argue that they did not know what the law was. Why are police officers with 25 years of experience entitled to make a mistake, to not comply with the rule that has been in effect for more than 15 years, and to proceed in such a way that it will ultimately be determined that the young person's statement is admissible? What are we trying to protect? The current system has a number of advantages. As a result of clear rules, I would say that we have put an end to the practice of "judge shopping", where people knew that a particular judge was more likely to show more respect for the basic rights of a young person than was another judge. So there was an attempt to get the first judge, because it was known that it would be possible to win, and this would entail some delays. The law is clear and the practice is easy. It is not necessary for a police officer to take three months of training to learn to comply with the conditions set out in section 56.
There are advantages, not only as regards respect for the young person's fundamental rights, but also on an institutional level; unnecessary trials will be avoided by imposing clear rules. When these rules are respected, when the conditions are respected, there will clearly be no choice but to enter a guilty plea. The evidence is overwhelming. There will be no trials. A lawyer could say to his client: "I must inform you that such and such a judge may be likely to withdraw your confession, considering that it brings the administration of justice into disrepute." That is the state of law, this fluctuation that means there is really no interest in establishing new rules that will soften the admissibility of evidence. It is as if the desire were to import that from the discretionary power contained in the Charter.
Under section 8 of the Charter, everyone has the right to be secure against unreasonable search or seizure. That is a true statement of the law in general terms. It is clear from that that we must use judicial discretion to determine if a search or an arrest is unreasonable and under what circumstances it is likely to bring the administration of justice into disrepute. That is not how clause 56 was drafted. It states that the young person must be given a caution and informed that he is not required to make a statement. Wording appropriate to his level of understanding and development must be used. In my view, this is not an area where it is necessary to introduce judicial discretion, because the act is clear, well understood and well applied.
Mr. Benoit Gingras, Bureau d'aide juridique du Québec, Aide juridique du Québec: I am going to deal with the transfer by going back over what Ms Trudeau presented. The declaration of principle, when addressing the transfer, means the transferring of a young person to be tried to an adult court in accordance with clause 16. All of the principles are in this chapter which addresses execution or examining the possibility of transferring the young person to adult court. It is a conciliation test between public protection and reintegrating the young person. If this test is satisfactory and meets the principles already outlined in the act, the judge will keep the young person in a youth justice court or transfer him to an adult court.
The presumption applies at age 16, under clause 16 of the act for certain offences. Bear in mind that it is possible in the current act to request a transfer for a young person who is 14 years of age. That exists at present and we feel that the new act, given its wording, when addressing how this provision will apply and what procedures are involved, makes an unnecessary change to something that was fully satisfactory. The test was perhaps a bit complicated in many ways, but it enabled us to examine not only the crime committed, but also the situation of the young person, the specific situation of a child who had committed the crime.
We have the impression, with the new wording, that in fact, the subject and particular crime are being concealed. It is the part of the text that constantly escapes us. This provision in the new wording gives us the impression that we are punishing the crime but ignoring the person who committed it.
I have been a lawyer involved with youth in a special division of legal aid for 12 years. We have developed expertise. We truly have the impression that we now have an accessible act, an act that we can explain to our clients and our parents, an act that is accessible in complicated situations. When we examine Bill C-7, we have the impression that we are facing a complex act due to its language and the way it deals with crime in a less comprehensive, more reductive way, and act that looks at crime from an adult perspective.
As it is, it diminishes the multidisciplinary and versatile nature of lawyers who work with young people. They work with other social stakeholders. We have the impression that all of this expertise that has been developed over the years is being disregarded.
Ms Trudeau discussed clause 61 of the act which provides for an adjustment made with regard to Bill C-3 and C-7 where the lieutenant governor in council may order that young people fall under this provision at age 16. There seems to be a problem with disparity. The act often talks about parity, even in the principles for sentencing, among other areas, whereas there is disparity among the provinces. Where is the stability of an order made by the minister or a government when it may be changed, when the age that is ordered can be subsequently different? That appears quite fragile in fact. It does not have the same effect as an act that must be discussed in the House or in committee.
[English]
Ms Carol Letman, Director, Criminal Lawyers' Association: I do not want to repeat too much of what has been said. The Criminal Lawyers' Association has carefully examined this bill, including the many youth-focused provisions that go a long way to recognizing the special needs and circumstances of young people. A considerable effort has gone into reducing the reliance on the justice system, through the expansion of extrajudicial measures, and discouraging the incarceration of youth, except in the special circumstances as outlined.
The distinctions between violent and non-violent offences are significant. One might have thought that the critics of the Young Offenders Act would have been appeased by the tough sanctions that are available for "serious violent offenders." However, the new bill inspires as much controversy as the Young Offenders Act, particularly from those with a law and order agenda. I understand that will be the focus of other submissions, but it is certainly not mine, and it is certainly not the focus of the people who are here today, who are defence counsel.
The issues that I included in my paper remain of concern, certainly to practitioners. I spend a fair bit of time in the Youth Court in the Region of Peel in the province of Ontario, so I speak from having experience, as well as education, with the implementation of the Young Offenders Act.
One of my major concerns, which I have discussed with colleagues both at the association level and also locally, is with respect to some of the definitions, and particularly the definition of "serious violent offence." I was pleased to note that this definition is rewritten, because one of the concerns with the previous bill was that the catchment could have been expanded considerably to include offences that were not logically classed as violent offences, because there was a risk that bodily harm could have been caused.
However, the fact that it is left as, "attempts to cause serious bodily harm," leaves, at an open-ended level, the question of what constitutes serious bodily harm. That will have to be judicially determined at various levels of court, but it will cause considerable difficulty within the justice system, particularly when Criminal Code defines "bodily harm" but does not go to the extent of defining "serious bodily harm."
The aspect of the presumptive offences in the three strikes rule is very concerning, particularly when it is coupled with this aspect of serious violent offence. The definition talks about a "serious violent offence for which an adult is libel to imprisonment for a term of more than two years." In reviewing the related Criminal Code provisions, there is virtually no violent offence that is punishable by two years or less. Every violent offence, including common assault, is caught by that definition. Describing it as a "serious violent offence" may create the problem in jurisdictions where "bodily harm" may be easily interpreted to be "serious bodily harm."
Recognizing that, under proposed section 42, there is a requirement under subclause (6) that there be a judicial determination of what constitutes a serious violent offence, I believe that, in the long run, that will protract criminal proceedings and add to the sentencing hearings, because it will obviously be an issue that, as counsel, we will have to seriously dispute, given the potential future ramifications for our clients if there is at some point in time a finding that an offence is a "serious violent offence."
Another concern is reflected in other aspects of the proposed act, for example, in clause 61, some of the extrajudicial sanction sections. The sections regarding committees and conferences are all dependent on implementation at the provincial level, and they are all discretionary. The only provision that is not discretionary is the requirement that there be two levels of custody. That is keeping in place the provisions under the Young Offenders Act between "open" and "secure." The fact that the balance of those items that are all left to provincial discretion is a potential problem, particularly dependent on the jurisdictions. Practising in a law and order jurisdiction such as Ontario will likely result in the fact that many of these beneficial and youth-focused aspects of the new act will simply not be implemented. There is an agenda in Ontario to move towards adult treatment of young persons. Anything that will recognize that young people have special needs and perhaps should be dealt with outside of the court system, I do not think will be implemented. That is unfortunate, because the act has gone a long way to encouraging those aspects.
Having reviewed the Statistics Canada reports that indicate the vast majority of offences that are before the youth courts, and certainly practising as well, are trivial in nature and low-end offences and the percentage of "serious violent offences" are few, it would be ideal if many of these extrajudicial aspects were implemented and the decreased reliance on custody were implemented in all the provinces.
The fact that they can be dealt with differently in different provinces will cause considerable stresses and significant applications with respect to the inconsistencies in our courts.
Another concern that I noted and perhaps did not stress, although I did comment briefly on it, concerns the custody aspect. Many of the decision-making processes have been delegated to the provincial director as opposed to the presiding justice. I find that troubling because, in Ontario, it has always been the practice that judges who have heard the case, have looked at the young person and have assessed all the circumstances, have been able to take decisions regarding open or secure custody. In fact, in many cases, they have structured sentences that included both. My concern lies in leaving it to the provincial director, who may be dealing with a large body of young persons falling into that category and who never has an opportunity, except through the probation officer, to have contact with the young person - even at that level, the probation officer may have had contact with the young person - and has not had access to the whole hearing of the case. The provincial director is provided with only a summary of the facts and, if the matter proceeded to trial, may not have a true focus on whether or not the offence was as serious as described.
The fact is that the judge who has heard all the evidence has had the training to make those assessments and to direct his or her mind specifically to the sentencing provisions included in the act. The element of putting it into administrative hands is somewhat questionable and likely will be open, again, to adding to the judicial demand, because the decision of the provincial director can then go back to court to be reviewed. We may end up adding more court proceedings simply by the administrator making decisions that then must go back to be reviewed by a court.
The last area I will deal with relates to statements. I would focus primarily on the question of technical irregularity. That is something that has not been codified in the Criminal Code.
We do not talk about certificates of analysis with respect to the impaired driving matters as being eligible to be admitted into evidence if there is a technical irregularity.
Having practised in the youth court and dealt with section 56 for many years, it springs to mind that the first technical irregularity will be that some one forgot to turn on the video; that there is no tape in the machine; or the tape recorder or the video did not work. I can guarantee that will be the first technical irregularity to be challenged. Is that what is meant to be caught here? Frankly, I think the clause is open to abuse.
Young persons are clearly recognized through the act as being in need of some special protection. We all recognize that their maturity levels are not the same as those of adults. Coupled with that is the research that indicates through social science that they do not always understand the complexities of the waiver to begin with. Many adults do not even understand the right to counsel when it is thoroughly explained to them. To allow technical irregularities to allow those statements to go in opens the door to abuse, will add to the court challenge, and simply seems to be an appeasement to the police forces who find it too difficult to comply with the rule of law.
Those are the areas that I wanted to focus on in my oral submissions. My paper focuses on some others.
Mr. William Trudell, Chair, Canadian Council of Criminal Defence Lawyers:On behalf of the Canadian Council of Criminal Defence Lawyers, I am grateful to be able to appear here today to assist, if we can, in relation to this bill.
This bill is not perfect, but not much is. We feel that this bill is a new approach, an enlightened approach, and goes a long way to working out a balance in youth justice in this country.
I may disagree a bit with my friend Ms Trudeau about this, but the Canadian Council of Criminal Defence Lawyers believes that the statement of preamble and statements throughout this legislation are very helpful to keep the courts reminded of the difference between a young person and an adult. In the Criminal Code, under section 718, which does not apply to young persons, the guidance on the principles of sentence are very important, and we go back to them often in court cases to remind ourselves of the guidance that we should have.
I was saddened this morning to read what was released yesterday from the Province of Ontario in relation to this bill. Therein are the seeds of the problem, and I reflect what my friends have said. You have received now, I believe, a paper on behalf of the Ontario government entitled "No More Free Ride for Young Offenders Act." Quite frankly, if that is the approach that the Province of Ontario and the other provinces is going to take, then the discretion built into Bill C-7 is going to fail.
Senator Cools: On a point of information, if you speak about a document, could you share it with us?
Mr. Trudell: It was released on the Internet yesterday.
The Chairman: We will take care of that.
Mr. Trudell: I do not know if the Attorney General will let me back in the province -
Senator Fraser: You are still in the province.
Senator Grafstein: Mr. Trudell, we protect our witnesses. Do not worry about the Premier of Ontario. We will help you.
Mr. Trudell: Thank you. Really, the problem in this act is that if we leave discretion to the provincial authorities, then politics will drive it, and we will have unequal representation and children who are treated differently and have different rights in the Province of Quebec than they have in the Province of Ontario.
The discretion is probably a balance that has been worked out by the legislators of this bill to this point: the "mays", as in "may caution," and the word "discretion" in clause 61. In our respectful submission, the seeds of the collapse of this otherwise solid bill are there. We as defence counsel, are concerned with some of the provisions, and we tried to address them in our paper.
I echo Carol Letman's position about technical irregularities. It is open for those persons who do not believe that young offenders should be treated differently. It happens in our world all the time. Within the last month, I had occasion to be with a police force, with a witness, and after three hours of interviews, I was contacted and told that the computer had not been working and all of the work had been lost. That was an accident, a mistake, but if someone does not believe in the philosophy of this act, then the technical irregularity provisions will be seeds for not following the provisions of this bill.
We do not believe, with respect, that the presumptive sections should be reduced to 14. In our respectful submission they should stay at age 16.
We believe that this bill, with some changes that are reflected in our paper and which will be discussed around this room this morning, is a solid attempt at a new approach. It is a very complex bill, but that is the environment that we live in. That is the world we live in. The Juvenile Delinquents Act was about an inch thick, and it said many of the same things about cautions and warnings. In this thick document, we are back to basic principles, save and except for some of the provisions that we are concerned about, such as the three strikes provision, which we think will be applied differently in this country. We have to be able to get together and say that a young person who commits an offence in British Columbia, in Iqaluit, in Ontario, will all be treated the same way.
The constitutional challenges that await this bill, willdefeat the spirit of it, and we think that spirit is positive.
[Translation]
Senator Rivest: I am concerned with the fact that the new Young Offenders Act seems to be more standardized legislation modeled after the adult system. The bill proposes new principles, and new concepts to define various situations. We all remember the Juvenile Delinquents Act. In this regard, Ms Trudeau reminded us that the Supreme Court had established a relatively safe framework in which everyone could operate despite the irregularities of the existing act. This new bill contains concepts that will be challenged by defence attorneys.
How long will it take before we have another relatively safe framework in which everyone can operate?
Since the government has decided to proceed this way, along the way, young people are the ones who will suffer the consequences. Young people, families, workers and professionals in the field will be dealing with uncertainty. Do you agree with that?
Ms Trudeau: When we look at Supreme Court decisions in the area of interpretation, it is clear that we must always refer to the legislator's intent when the bills were proposed. When Bills C-3 and C-7 were drafted, the main objective was sustainable protection for society, along with significant fair and proportional consequences. It was mentioned at the time that crime was on the rise.
The provincial courts of appeal and the Supreme Court will have to interpret these new provisions. It is clear that there has been a complete change in the text of both declarations of principle. Obviously, we will look at what existed before, and we will now look at the new provisions.
It is very difficult to interpret this new legislation as something that will enable us to take into account the needs of the young person and to promote reintegration in the initial sentencing. If we examine the text of the current bill and the text of C-7, we can clearly see that all mentions of reintegration and rehabilitation are lost in a sea of other considerations that are more important such as fair and proportionate accountability and meaningful consequences. Clause 3.(1)(b)(iv) talks about timely intervention, and I quote:
Timely intervention that reinforces the link between [...]
Not with the young person's needs, but:
[...] the offending behaviour and its consequences.
It is always linked to the crime rather than the individual who has committed the crime. Basically, this bill focuses less on the young person than it does on the crime, as does the adult criminal justice system. And they make a big deal about the fact that the words "reintegration" have been added.
Section 718 of the Criminal Code contains the same words in reference to the adult criminal justice system, i.e. that the sentence must assist in rehabilitating offenders.
Nothing has been added by giving us these principles. Jurisprudence is clear. I refer you to a Supreme Court decision of 1981, Resolution to Amend the Constitution, 1981-1, SCR 753:
A preamble is of educational rather than interpretative value. A preamble is relative in scope. In the current case, the value of the preamble is not truly binding.
Mr. Gervais: Your question really speaks to me. It is not only the declaration of principle that incorporates complex data that is difficult to apply, but the entire act. Each time the opportunity arises, I repeat the following excerpt from the Supreme Court's decision R. v. M. (J.J.) where the Court states:
The Declaration of Principle represents an honest attempt to achieve an appropriate balance for dealing with a very complex social problem. Judges and the other professionals who work with young persons who violate the criminal law require a complex and balanced set of principles like those found in the YOA.
How many acts of the Parliament of Canada have received such high praise from the Supreme Court?
You must think about that before replacing the current act with this bill and declaration of principle. I have mentioned the complexity of the act, but I would say on the other hand that what we are seeing is the most unpopular act in Parliament, the Corrections and Conditional Release Act, being imported into the youth justice system. That is even more insidious than the transfer. If the transfer means sending children into the adult system, bringing in the conditional release system is like introducing the adult system into the youth justice system along with the complexity that it entails and the difficulties with enforcement that will run counter to the treatment objectives.
In Quebec, we have found that detention is part of reintegration. Custody is not a substitute for detention, for depriving someone of his freedom. It is a treatment measure and it is being jeopardized with the incorporation of part of the act that is perhaps the most unpopular one adopted by Parliament; that is currently what is happening with Bill C-7. This complexity, both in terms of the declaration of principle and some specific provisions, will result in uncertainty that will last much younger than we may have anticipated.
Senator Rivest: Reintegration for adults is one thing. But when we talk about young offenders, once we have determined that the young person has a particular problem, we do not necessarily talk about reintegration, but training and the young person's needs. That was our philosophy, our approach, not reintegration. Reintegration will obviously follow. Canadian society has chosen to place emphasis on the young person and not the crime or what the young person will do in 10 or 15 years. The young person needs help, training and education because he is a young person. We do not have the same concerns with adult offenders.
Mr. Gingras: You focus on the young person himself, as he is, with his needs in terms of re-education and rehabilitation. I find that interesting. You put reintegration after re-education and rehabilitation. That is fundamental. We agree on that.
Senator Rivest: Yes, that is taken from the old act.
Mr. Gingras: I would like to draw your attention to your previous question on clause 38 in Bill C-7. The text, as amended, reads:
[...] meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, therefore contributing to the long-term protection of the public.
We get the impression we are in muros, trapped in a framework where we are reminded that what is important is long-term protection of the public. What takes precedence? How will the courts interpret all of that? The Supreme Court has brought down important decisions on the notion of needs, on how needs and public protection should be interpreted when examining a young person. Madam Justice L'Heureux-Dubé wrote in the R. v. T. [1992] decision:
[...] There is a fundamental tension in the YOA between such competing ideals as due process and treatment;
in some situations, the act gives precedence to due process, though in exceptional circumstances treatment may be emphasized at the expense of due process [...] There is no single, simple philosophy [...]
So, while there is no single philosophy, I venture to say that there are individuals with unique problems who deserve a specific type of treatment -
[...] and no single type of program that will "solve" the problem of youthful criminality.
Senator Joyal: Your presentation focuses on the interpretation to be given to the principles contained in the legislation. You simply mentioned that, in your opinion, there were differences between the Charter and the Constitution Act. Can you explain in greater detail what you have in mind?
Ms Trudeau: I could answer questions on the legislation in terms of the Charter of Rights and Freedoms and the Constitution Act. I did not say that there were problems. Can we, in clause 61, adopt a provision that allows each province to have its own system? Is this constitutional or does it violate the Charter? I can answer that.
Senator Joyal: I would therefore ask you the question: does this violate the Charter?
Ms Trudeau: No, it does not violate section 91(27). In R v S(S) (1990), 2 SCR 254, I v The Queen (1990), 57 CCC (3d) 254, and another Supreme Court decision, S v The Queen (1990) 57 CCC (3d) 92, there are discussions of this issue, of the whole system we are referring to, of extrajudicial measures, of alternative measures, in the context of section 4 of the Young Offenders Act. Under section 4, each province is able to adopt a program of alternative measures by Order in Council.
In some cases, in a number of provinces, no alternative measures program was adopted. Young people were charged and sentenced. At that point, they argued that this provision violated the Charter, because it did not allow them access to alternative measures in their province. It went against section 15 of the Charter.
Two questions were asked in the Supreme Court ruling in R v S (S). Was the delegation of powers in the initial legislation, the Young Offenders Act unconstitutional? Each province was authorized to set up its own program. The answer given by the Supreme Court was no, it was constitutional because the Young Offenders Act refers to a program authorized by the prosecutor, the Attorney General, since section 2 of the Criminal Code is referenced. This is a lawful delegation of the Canadian Parliament. The power to implement or not to implement a program of alternative measures is a power that is ancillary to the legitimate power given to the Attorney General.
There were questions as to whether or not this violated section 15 of the Charter, which guarantees equal treatment. The answer was no, and the court went quite far in its reasons. It ruled that the division of legislative power between the federal and provincial governments not only allowed for different treatment depending on the province, but even encouraged the recognition of regional distinctions. Section 15 could not be successfully challenged on the sole basis that the legislation creates distinctions from one province to another.
The court also ruled that it was not discrimination in that it was not based on the offender's personal characteristics, but simply on the place in which the offence was committed. After reading this decision, I wondered whether the Supreme Court's reasoning was based on the powers of the Attorney General and whether it was linked to this. Were there not other decisions which recognized that, from one province to another, criminal law could be applied differently, even to the point of provinces imposing different sentences?
Indeed, in R v Ellesworth, R v Alton and R v Jackson, the judge said that it was R v Valiette under the former section 234(2) which, in the case of people found guilty of drunk driving, stated that if they agreed to a stint in rehab or to treatment for their alcoholism, these people could receive a conditional discharge in certain provinces.
The case went to the Court of Appeal and the case was made that if a person received a conditional discharge in some provinces but not in others, this violated section 15. It was argued that the fact that the former section 234(2) was not applied consistently across the country did not contravene section 15. The court ruled that the inconsistent application of the Criminal Code from one province to the next did not, per se, violate section 15. A violation under this section had to be something stronger than the inconsistent application of an article. You would need to prove discriminatory treatment based on age, religion, gender, race or ethnic origin. These principles are contained in the Turpin and Alcan decisions.
The court ruled that under section 15, the section need not be applied consistently everywhere. On the contrary, it went so far as to say that, in the application of section 15, the courts had the duty to recognize the federal system of the Canadian government, which is based on the recognition of regional disparities.
In the Turpin case, one party had argued in favour of trying cases for murder without a jury in Alberta. But again, it was counter-argued that this violated section 15. However, the court decided that the former section 430 was not discriminatory and was in compliance with the Charter.
Equality does not mean - as is stated in R v SS (Secretary of State)- equal treatment. Society may deal with different people in different ways. A law which makes this distinction is not in violation of section 15.
[English]
Mr. Trudell: My friend is quite right about what occurs in the interpretations of sections of the Criminal Code across the country, but we are faced with a different philosophy going in. In other words, what we must recognize in this country is that children are children. We do not give them the same rights as adults. They cannot vote. We restrict what they do in terms of what they can access, unless they turn on the television and see whatever they want. They are not equal. They do not come into the system with the same sorts of rights as adults.
To deal with the problems of impaired driving throughout the country, the Province of Manitoba may institute one thing and the Province of Ontario may institute another. The problem is we must go into this legislation saying that we are all on side with one basic principle, that children are not adults. Even children who commit heinous crimes are not adults. They might need to be treated differently than a child who commits another kind of crime, but that is the philosophical problem.
We must convince the provinces that one must start from principles first and that is why I, on behalf of the council, say that the discretion must be taken out of this legislation. We know all the hard work you put into deciding what to do with this bill will be undone as soon as it hits the floor in certain provinces because of that attitude that that some provinces has about getting tough on the kids. Some provinces believe that they are getting away with too much.
The philosophy has to start, and then different programs and applications can be put into the administration of justice. How it works in various provinces can be different, but the first principle has to be adopted. That is the big problem. In other words, we think clause 61 should not be there. The age is correct at being 15 or 16. We believe it should be left as it is. If you give provinces the right to lower it, you are immediately offering inequality to a kid from Iqaluit. We urge the provinces to mandate cautions. Say you have to do it. Mandate that you do not go to jail unless and then provide adequate funding.
Therefore, if the philosophy is the same in Manitoba as it is in British Columbia. That philosophy is that we do not like crime but the future of our world depends on how we treat our kids. We have to adapt certain things to our children's environment. It will be different in Iqaluit than it is in Toronto, and it will be different in Calgary than it is in St. John's, but if the philosophy is the same, if the first principle is there that they are not adults then they law will be applied properly. Law and order campaigns are just politics. That is where we must start. Then the Supreme Court of Canada will look at it and say that the spirit of this act is the principle as set out. That is what we find. Then we can go on to see whether or not it affects it constitutionally.
Our biggest challenge is to get everyone to believe that kids are kids.
[Translation]
Ms Trudeau: I understand my colleague's concerns. The constitutional foundation in criminal law varies from one province to another. We do not agree with the presumption of reference, because even a decree from our province may be changed.
Let me take this moment to make a suggestion. We pointed out to you the problems with this bill. The Minister of Justice, in her brief on this bill, raised several interesting points such as, for instance, a more active role for victims. The extrajudicial measures proposed for the other provinces should perhaps be a little more specific. In our view, the alternative measures are good. Some elements could also be used in Bill C-7 to amend the current Young Offenders Act. We would not want the philosophical underpinnings of the current act to be changed. Given the statement of principles contained in Bill C-7, I do not think we could keep on doing what we are doing now.
There is also some confusion - as presented in the department's documents - between rehabilitation and incarceration. As it now stands, with regard to youth custody facilities, a judge cannot remand a young offender into custody if the young offender has committed a less serious crime. The judge must resort to probation, a warning and other such extrajudicial measures.
However, it may be very useful in the case of a young offender who should be placed in custody for three or four months. As the law now stands, the goal is not to punish, but to rehabilitate. In other provinces, I realize that there are various problems in terms of the administration of justice and that there are no youth custody facilities. From the outset, people have said that we need more of them. You cannot change the philosophy of a piece of legislation to solve a problem which is not caused by it.
Senator Nolin: We heard from a criminologist yesterday - he was very familiar with the bill - who said that one of the objectives of the bill was to reduce the rate of youth incarceration. Perhaps the term "incarceration" has a different meaning for each of you. Let's agree that it is the absence of freedom. This could mean that a young offender is in jail, eats three meals a day, and so on, but this is not the kind of thing you have in mind. In your view, the absence of freedom must be an opportunity for education. A young offender is kept in custody because society wants to rehabilitate him.
Canada has the highest rate of incarceration and of taking away young people's freedom of any developed nation. That's why Canada is held up as an example of what not to do. The authors of this bill want to bring down that rate. But you have to look beyond that fact and examine under what conditions you want to deprive young people of their freedom.
Mr. Gervais: There is therapeutic detention.
Mr. Gingras: That's an important point. The public has to understand that in dealing with young offenders we want to rehabilitate them. Ms Trudeau mentioned this briefly in our brief. It may seem strange for me to say this, since I am a defence attorney. Under section 39 of the bill, a young offender who appears before a judge for a first offence, such as drug trafficking, will not be sent into rehabilitation, even if his profile indicates that this would be the right thing to do, for the reason that he hangs out with other young offenders, that his family environment is inadequate, that his parents are not around, et cetera. This comes back to what we were talking about earlier.
Senator Nolin: When you talk about rehabilitation, does this mean it takes place in an environment where freedom is restricted?
Mr. Gingras: The young offender's freedom is taken away because he must acquire social skills to become a well-adjusted adult. That is the first step.
Ms Trudeau: He must learn to live in an environment which imposes limits and where there are authority figures. The root cause is often a lack of family structure.
[English]
Mr. Trudell: This proposed legislation is interesting because it challenges us to stop thinking about therapeutic detention. The bill says that detention cannot be used for other reasons and that these matters should be dealt with in the community. On a daily basis I work with police officers that would love to think that every detention is therapeutic. This bill does not point towards the use of jails. Rather, the bill speaks to conferences and the principles that our Aboriginal people have taught us about dealing with problems in the community, as opposed to separating the young person from the community.
If you take a young person and put him in a building and tell him it is for therapeutic reasons, he is denied his liberty and will not understand. He will think you are the enemy. This bill directs the young person to be put in a community conference. This will work if the will is there from the provincial government.
Senator Andreychuk: I cannot resist getting into this debate. My understanding is that the Quebec model is not to put people in custody, but rather to work on their problems and not send the young people to the courts if it is felt that you can work on their behaviour to preclude crime.
The Quebec courts have persuaded me that children are not incarcerated as much and that is the benefit of the way you have been handling these matters. Quebec looks at the child holistically and does not just look at the crime, but at the young person and what that child needs to stop him from committing a crime. If he is in custody, we will continue that philosophy. We will still try to look at him holistically in custody. If the child is violent, he needs custody for his own protection as well as society's. Society needs deterrents, et cetera. That is why it is a rehabilitative model.
We have heard today that you want to get the young person into custody to give him rehabilitation. That is what I thought the Juvenile Delinquents Act used to do. We would take kids and say, "We do not care that you committed the crime, but we will make Johnny a good boy." It had nothing to do with the crime. That is why I thought we went to the Young Offenders Act.
I thought that the interpretation of the Young Offenders Act by Quebec was the best. Your last answers troubled me, because it looks as if you are trying to push young people back into custody.
[Translation]
Ms Trudeau: I understand what you mean when you talk about holistic intervention. We in fact use a holistic approach. When we have to decide whether a young offender should serve his sentence in the community, we do not only look at the crime or the seriousness of the crime, we also look at the young offender, his needs and his psychological and social problems. Each case is different.
If a young offender is arrested for possession of a narcotic, and if this person's parents are drug traffickers or if he does not live in a well-adjusted family which imposes limits, we have to solve his social problems.
That is what we mean when we talk about community work within society or the process of getting together, such as remedial measures in terms of meeting with the person, and that is impossible. I am all for extrajudicial remedial measures, but you have to address the offender's personal problems. The offender has to be in a position to respond to those measures. As it now stands, these measures are contained in section 717 and the ones that follow under the adult legislation and it drives us crazy. Just ask around.
For the last two years, there has been a pilot project in Toronto. Even adult offenders find it hard to respond to the process, to acknowledge their responsibility and to follow through.
Do not forget that it is very different for young people. They are still in the process of becoming who they are. The root of their delinquency often lies with their family. They act out their frustrations outside of home. Extrajudicial measures are not a bad idea on the condition that they are not automatically imposed. Under the current legislation, a person who commits a lighter crime receives an extrajudicial sentence to be served in the community and a person who commits a serious crime is given a much more severe punishment.
We are importing the less desirable aspects of the adult criminal justice system. This is the subject of complaints in the adult system, and the measure of custody in the community, as well as all sorts of other measures, were developed in order to get away from these constraints. We already had these measures. We are going to take this and throw it away, and then go on to something else.
The holistic approach that you talked about interests me, and I agree. However, what we have now is in fact a holistic approach. We look at the young people in their surroundings, and we try to determine the best way to rehabilitate them.
Senator Nolin: Does it work?
Ms Trudeau: Yes, it works.
Mr. Gervais: Canada is criticized for its high rate of incarceration. I believe that Canada will be criticized more severely if it passes a law that plainly violates the Convention on the Rights of the Child. This is very clear; there are obligations.
The purpose of the international Convention on the Rights of the Child is to promote the best interests of children. Canada is a signatory to this agreement, which sets out an obligation to establish an institutional network to promote the rights of children. Article 39 requires that the States party to the agreement must take all appropriate measures to promote physical and psychological recovery and social reintegration of a child who is a victim of any form of neglect, exploitation or abuse.
When a young person commits a crime, however, we must remember that there is always a story behind the crime. Essentially, this is a child who was a victim of negligence or abuse, and who went on to act according to a code of criminal behaviour.
Some of Canada's commitments will not be respected. There are formal commitments regarding the judicial process in sections 40 and following, which, once again, call for the setting up of an institutional system for young offenders.
How can we, on the one hand, claim to adhere to a philosophy that mainly advocates setting up these specific resources, and, on the other hand, introduce a presumptive transfer for certain offences for offenders aged 14 and over. There is an assumption that the system is deactivated for certain children who are 14 years of age and older, who have committed certain offences.
This clearly violates the Convention on the Rights of the Child. Currently, there are two decisions in Canada that are important: the Baker decision of the Supreme Court, and a decision of the Quebec Appeal Court, which is currently being appealed to the Supreme Court. Up to this point, we have never gone so far as to invalidate a law, but we have obtained commitments, and the desire of legislators, to promote the interests of the child in order to reverse some decisions. Bill C-7 goes much further.
Senator Nolin: I am sorry that I provoked this debate.
The Deputy Chairman: It is a fine debate that we had to have.
[English]
Senator Andreychuk: Your point is clear.
I believe that the Young Offenders Act clearly balances the needs of young persons with the safety of the public. That thread seems to run through the act. It also contains the delegation to the provinces to determine resources. The determination of the definition of "closed" and "open" was also left to the discretion of the provinces. Consequently, a lack of resources resulted in creative interpretation of what was open and what was closed. That raised the custody numbers to high levels because there were not appropriate resources.
I am having a great deal of trouble determining what the philosophy of the new bill is. It seems to contain competing philosophies. I cannot disagree with the declaration of principles in clause 3, but the sentencing principles no longer seem to include the needs of the young person and the safety of the public as the overriding concern. Accountability now seems to be the overriding principle in sentencing.
Throughout the bill there seem to be competing philosophies. Various witnesses have indicated that this bill was politically cobbled together to satisfy competing groups. In doing that, they have satisfied no one because they have ended up with a contradictory bill. It would have been better to have one clear message than all of these contradictions.
What will this bill change if the discretions are left with the provinces, which seem to have a lack of resources? I am speaking not of Quebec, but of all other provinces.
Will we not end up with each province doing the best they can? Even worse, this bill seems to take away some discretion from judges, caseworkers and police, and in turn is imposing a bureaucratic structure on them. Is that really helpful?
Ms Letman: I indicated that I had that concern, particularly with placement being put into the hands of the administration and provincial directors and taken out of the hands of the judiciary. The obvious conflict is there between the law and order and protection of the public mentality and the child-focused rehabilitation and reintegration aspects.
I do not see an easy answer because both philosophies are very politically driven and they will be reflected in different ways in different provinces across the country.
With regard to the shortfall in resources, my main concern is that the impact of that will be felt in the court system because there will be more time spent in two different levels of court dealing with the fallout from many of these provisions. First, the judicial determination of serious violent offences will add to the time element in the court system. Second, the demand created by this presumptive offence, the three strikes category, will add more young persons into the mix of the superior court, which will be dealing with more young persons.
With regard to once a young person has been found guilty and a disposition has been imposed, there are things in clause 38 that we consider to be quite beneficial for young persons. One thing is the concept that young persons should not be dealt with more harshly than adults. The Statistics Canada summary that suggests that for certain offences, young people are dealt with more harshly is useful information to communicate, particularly if we are arguing in front of a judge.
Senator Joyal: I do not wish to contradict the witness at all, but I think it would be important for us to get a copy of the agreement between the federal government and the provinces with regard to the transfer of money in order that we can know where the money is going and what obligations the provinces sustain when they sign the agreement.
The Chairman: That is it a good suggestion.
Mr. Trudell: Senator Andreychuk, the bill is a complex one. However, I would feel comfortable standing in front of a court with this bill in hand. Clause 39 reflects the new philosophy because it states:
that a young person shall not be incarcerated unless...
That, together with clause 3, promotes the philosophy. I agree with what you are saying, however, where clause 38.(2) states:
...shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
The stick has to be in there some place, but I can argue, that the philosophy remains.
Clause 39 is very important. I am concerned about the meaning of "exceptional cases" in 39.(1)(d), and whether that means "exceptional circumstances." Then you look at clause 42, which allows a judge to reprimand. The expansion of the judges' discretion is quite expansive.
Senator Andreychuk: One moment, please. What will the judge do with clause 39 if there were no programs available for the child? I think custody would be beneficial because then he or she would be able to receive some counselling.
Mr. Trudell: The judge will look at the other clause, and he will be in a dilemma, because there is another clause that says you cannot use custody for ulterior purposes such as education and public welfare.
It is a problem that we face now and in the future, except when you find out where that money goes and how many conditions that are placed upon it. We have to come back. A judge may err on the side of the philosophy of this act, and therefore, the child will not go into custody. However, the judge may decide instead, to put the child on all kinds of probationary terms. The judge, in doing that, may be trying to get a message out. It is a real problem.
Senator Andreychuk: Yes, and then the judge puts him on probation and the child is before him again for the violation of the probation, and, as a result, there will be two new offences.
Mr. Trudell: I did not say the judge should let him go out the door. I said that the judge put him on probation with strict terms, or try to fashion a remedy to assist the court. That is where defence counsel and the Crown come in.
There is another scenario, whereby the judge could put the youth in custody, when he really does not belong in custody. He would be considered to be there for an ulterior purpose, and then, the person next to him could graduate him, and at that point, we may lose him.
Senator Andreychuk: So you have faith in the words "shall not" as opposed to the young offenders who said that custody was the last alternative.
Mr. Trudell: I love the inclusion of the words shall not.
Senator Andreychuk: Do you believe that will stop what is going on now?
Mr. Trudell: No, it will not, but it will make us look at the philosophy of this bill. They will ask the Crown to come back next week and tell them why they are faced with this dilemma. What is the province doing to reflect the philosophy and the clear language in this bill?
[Translation]
The Deputy Chairman: Mr. Gingras, do you wish to add something?
Mr. Gingras: Yes. A few minutes ago, an example was given of a young man who was in real need, who was living in a situation where his parents had abandoned him. We should not forget that the current legislation provides that other considerations be examined and weighed, before a young person is committed to custody, in order to meet the young person's needs in keeping with a rehabilitation model.
All of the factors listed in section 24 must be considered. This section states that the judge must not make a decision that would be a substitute for other, reasonable measures already available, in other words, for other services that are available under another law, in particular the Quebec Youth Protection Act. This is important, the decision is not made in isolation.
Earlier, Ms Trudeau was talking about a holistic approach. A number of disciplines must be involved in reviewing the young peoples' needs. You have heard from criminologists, psychologists, educators and psycho educators who evaluate young people. All these people testify before the court and present reports on the young person's individual personality.
If we adopt a different approach, such as the one put forward in Bill C-7, unfortunately, we will lose a wealth of evaluation expertise that has developed over the years. Jurists will have to take an interest in all these disciplines to develop the expertise required to represent children and teenagers.
[English]
Senator Grafstein: We have heard your overlapping and conflicting philosophies. We have heard two messages here and I want to know if there is some concurrence. I have one direct question: Will the new bill increase the number of incarcerations for young offenders?
Mr. Trudell: If the bill is followed the way it is drafted and if clause 39 is followed, the answer is no. However, if the governments and the provinces do not build the infrastructure, it will not work.
Senator, if the new philosophy is that we do not send people to jail, then less people will go to jail.
[Translation]
Ms Trudeau: In our view, not having incarceration is a problem: we do not incarcerate, we rehabilitate. We put individuals into reception centres and rehabilitate them.
[English]
Senator Grafstein: Will the new bill increase incarcerations? Mr. Trudell said that, if it is operating properly, it will not.
Ms Letman: I agree with Mr. Trudell. I have a problem with the concept of putting people in centres and re-educating them. I am sorry, but that is custody in my opinion. If the extra-judicial sanction clauses are implemented in the provinces, as described, then yes, we will have less incarceration.
However, if they do not implement those clauses, I am not sure that I can rely on the words shall not. It is a strong statement, and it is good ammunition to use in submissions. However, if a judiciary still believes that a prior failure to comply with probation should go to jail, which seems to be why many young people are incarcerated now, that is not precluded by clause 39.(1)(b).
Senator Grafstein: That is Senator Andreychuk's point. If that loophole is not closed we could end up with an increased number of incarcerations.
Ms Letman: It is because of the three strikes aspect that you could increase the number of incarcerations and if you implement the extra judicial sanctions.
Senator Grafstein: We are trying to come to a mutual understanding of your position. I am finding your testimony confusing, Mr. Trudell.
You say the new philosophy in the new bill is good, and yet you say that the old bill also had a very good philosophy. However, this bill, by its preamble and some of its provisions, will shift the line to extrajudicial or alternate measures of treatment. Would it be fair to say that if, in fact, the Young Offenders Act were amended with some of these provisions, the two of you might be more in sync?
Mr. Trudell: It depends on what the amendments are. I am not saying the Young Offenders Act is a piece of legislation that should not be changed dramatically. What I am saying is that the 16-year-old presumption ought to stay.
Senator Grafstein: We will come to that in a moment.
Mr. Trudell: I am in favour of this act, subject to the caveats that we have set out, because it is a new way of thinking. It clearly sends the message that we are not going to use jails. I do not believe, with respect, that just tinkering with the Young Offenders Act as it is changes it enough. This is a whole philosophical attempt to start thinking in a new way.
[Translation]
Ms Trudeau: I do not like this aspect of Bill C-7 at all. The message that detention will not be used is not clear. There is a clear message for those who commit minor crimes. Young people will not be rehabilitated, because they will be doing community work to compensate the victim, rather than trying to understand the problems that led them to commit their crimes. They will reoffend. Once they exceed the limit established by the act for detention to apply, these young people will be sent to detention. The principle of long-term protection of the public is very different from what we have at the moment.
[English]
Senator Grafstein: I think we are clear on your position. I wanted to see if there is some common ground and I see that there is not on that point.
I want to come to the fundamental issue on which you both agree. Do you both agree that the reduction of the age in the hands of the Governor General in a province from 16 to 14, clause 61, is not helpful?
Ms Trudeau: No.
Senator Grafstein: You say that one must seriously question the underlying motivation to treat 14-year-olds in the same fashion. All your briefs say exactly the same thing. You are all unhappy with clause 61.
Ms Letman: Yes.
[Translation]
Ms Trudeau: As I said earlier, we did not think there should be a presumptive transfer for 14-year-olds, or for young people of any age. That is what we claim for the young people of Quebec. The same should be true for young people throughout Canada. However, it has been held that clause 61 is constitutional and is not in violation of the Charter.
[English]
Senator Grafstein: You do not think clause 61 does?
Ms Trudeau: I think clause 61 is constitutional and it does not go against the Charter.
Mr. Trudell: I am concerned about an apparent inequality from clause 61, where a 14 year-old in Ontario would be treated differently from a 14 year-old in Quebec.
Senator Grafstein: The focus is on the Charter. For me, the Charter is one of the three problems with clause 61. We have heard very articulate arguments yesterday and today about clause 61 offending the UN Convention on the Rights of the Child. That is one issue. We have heard, contrary to what Ms Trudeau has told us, that Charter 15 is a problem vis-à-vis the change from age 14 to 16, in regard to unequal treatment.
My own argument, about which I am trying to get some views, is the question of the criminal power being clearly and exclusively in federal hands, and no one, including the Province of Quebec, has ever challenged that. That has never been challenged.
The question is whether or not this is a delegation to the Governor General of a province that in effect delegates, ultra vires, the criminal power to a Governor in Council, and the end result will be a patchwork of criminal standards across the country. Have you looked at that question?
Ms Trudeau: That is not what the Supreme Court said. It does not say that it is at all ultra vires. It is intra vires, the power of the...
[Translation]
... The federal Parliament can delegate certain authority. This delegated authority is constitutional. This issue was dis cussed in three decisions of the Supreme Court. The Young Offenders Act provided that the Attorney General should receive this power regarding proceedings as a delegated authority from the Parliament of Canada. For example, if there is a presumed transfer, or in this case, an alternative measure to take proceedings or not against a 14-year-old, there is a power to apply a presumption to a young person aged 14, 16 or whatever. This is an ancillary power to the initial delegation, which has been recognized by other Supreme Court decisions.
The power of Attorneys General to decide on the type of proceedings was recognized in the 1983 Supreme Court decision PG Canada v. National Transport.
[English]
Senator Grafstein: When I look at those cases clearly there is no question in terms of the decisions, that there can be different administrations of justice in each province in terms of treatment and alternate measures. There is no question about that. That is based on the diversity of the country, its resources and where you are living in the country. No one can quarrel with that. The courts have not recently dealt with the question of a clear delegation of criminal power from the hands of the federal government to the hands of the Governor in Council. That is not clear. Have you looked at this question, Mr. Trudell?
Mr. Trudell: I have not looked at it, but I think that you may have a point in relation to a patchwork bill, with all kinds of discretionary powers, not in the treatment after, but in the front end. That is why I have urged, in my patchwork submissions, which are not very understandable, that the discretion be taken out of it.
Senator Grafstein: You have been very clear about that. You say, in section 7, page 2, that clause 61, which allows each province to alter the age, will create inequality and may create constitutional issues and represents the central problem with this legislation. That is what you are saying.
Mr. Trudell: That is right.
Ms Letman: I will echo, to some extent, Mr. Trudell. I think you are dead on. If we have an act that sets an age framework of 12 to 17 as a federal piece of criminal legislation, then how can we within in it arbitrarily delegate to the provinces the power to change that age with respect to those provisions?
The Deputy Chairman: Obviously, there will be a challenge.
Senator Grafstein: It is important for us to get the weight of the criminal bar on this very important question.
The Deputy Chairman: It is important, but obviously all people need not agree on this point. I agree that it is a very important section.
[Translation]
Senator Joyal: Ms Trudeau, you mentioned a Supreme Court decision that referred to the age of the young person. It stated "provided there is no discrimination as regards age". The decision contained a qualification regarding age.
I am going to reread what was said in today's proceedings.
Ms Trudeau: There are a number of other decisions in which the court held that it was constitutional to treat offenders differently. This act was opened up in this decision, but it is a recurring theme. Many other decisions have held that this was constitutional, and have even sought to have regional differences in the enforcement of the criminal law.
I mentioned the Alberta decision that allowed for trial without jury in cases of murder. So it has been held that there are differences between the provinces, but that this is constitutional.
Senator Joyal: I do not want to start the debate over again.
The Deputy Chairman: Since this is a passionate and important problem, I would like you to give us your list. I have a list, but I think you have two judgments I still do not have. Would you be so kind as to send them to me?
Ms Trudeau: Sure. That being said, allow me to conclude. It is a debate on section 161. Our position is that the legislation should stay the same and build on the provisions contained in Bill C-7 regarding victims and extrajudicial measures, and that you should amend the bill as it now stands.
The Deputy Chairman: Senator Cools has asked to speak, quickly, if possible.
[English]
Senator Cools: I have a small point, before my question, on clause 61, and this is one of my hobbyhorses. Not only is clause 61 offending the exclusivity of the federal jurisdiction over the criminal power, but it is also offending the Royal Prerogative, in that what is being transferred here is a prerogative power, not only a legislative power. It does not say that the provincial legislatures may legislate in that regard. It says very clearly that it will be by an executive order of the Lieutenant Governor in Council, so it is another issue at which we will have to look, and at which I have been looking.
My question has to do with what they call the philosophy of the bill. I find it a little bit astonishing that lawyers are telling me, for a change, that they are relying on the philosophy of a bill, rather than the letter of the law or the provisions.
It is crystal clear to me that the old position of youthful offending, if we can use a general word, has made a dramatic change in this bill. The mere fact that the name of the bill is the Bill C-7, an Act in respect of criminal justice for young persons, and to amend or repeal other Acts. Criminal justice was not a term previously associated with young people.
We have travelled a long distance from the phenomenon of the old Juvenile Delinquents Act that says, essentially, that delinquency was a condition requiring help, guidance and proper supervision. In other words, delinquency was a condition that proved that a child had gone astray. It was a wayward child.
The philosophy that Mr. Trudell is relying on is articulated in what is called the declaration of principle. I am suspicious of the declaration of principles in this bill. I am very suspicious of bills being articulated in this way because it speaks to me of more than one set of intentions within the bill.
Clearly clause 3, which is named the Declaration of Principle, uses the term "youth criminal justice system." That confirms what I am saying about where the bill is going and where the system has gone.
If you go down to clause 3(1)(a)(iii) it states:
...ensure that a young person is subject to meaningful consequences for his or her offence.
That makes it pretty clear where this bill is going. What is the philosophy to say that young people should be dealt with in a more parental way?
Look at clause 3 (2) that states:
This act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).
That reads to me to be an instruction to ensure that a young person is subject to meaningful consequences. Could you comment on that? Mr. Trudell, I had the distinct impression that your concerns with this bill are minor.
Mr. Trudell: They are not minor in relation to some of the things that we have said in the paper.
In terms of the philosophy of the bill, I see the bill as a challenge to start thinking differently. Clause 3(1)(b) states:
...criminal justice system for young persons must be separate from that of adults and emphasize the following:
There is a list of items that follow.
There has to be a stick in here in terms of accountability, or this bill will never go anywhere. In terms of people who commit serious offences, young persons have to be accountable, but accountable, means understanding.
The importance of the philosophy is that young people are moving targets. They are always changing; they are developing. We start from the principle that they do not have the skills. They are still absorbing things, until a certain date when we allow them to vote. Prior to that, they are moving; they are developing.
Therefore, the philosophy is a bit of a patchwork in some respects, because the subject of this legislation is not somebody who is easy to define. They are changing continuously. Their needs are changing. Their environments are changing.
I like the philosophical approach because it allows for some movement, just like young people have movement in their development.
These kids are quite different. I want to tell you that some of them are pretty sharp. I had a young client a few years ago who was very clever. I told him that I had been asked to see him by his parents and that I practised law. He sat down, he grimaced and he asked whether I was just practising or if I was a lawyer. He was a pretty smart kid.
Youth are moving. They are developing, and that is why, frankly, there is some fluidity in the act.
I understand and I am concerned about the accountability section if it is interpreted as protection of society and that in turn means lock-up. However, protection of society means protection of our young people, protection of the offender, and understanding why he got into this mess.
I am not on a white charger for this bill in all its clauses, but I think it is a new beginning. For many years, the government has tried to get us to start thinking differently. I like that part.
Ms Letman: One of the problems that my colleagues and I have seen with the previous act is that it was called the Young Offenders Act. The premise was that we were dealing with offenders right from the start. The fact that this bill does not do that is a plus. Having gone through the system, in many respects we are dealing with young persons charged with criminal offences that we have codified under the Criminal Code. We need to recognize the need for a separate system that is not a child welfare system. Mr. Trudell commented earlier that aspects of the act should not be used to accomplish a child welfare goal. That is a concern when you have been in the family courts, and have in many jurisdictions dealt with the younger persons charged under the Young Offenders Act and who have seen their job as using the act to accomplish a child welfare goal. Irrespective of the fact that they should not be doing that, and you could make that argument, they are now specifically prohibited from doing that. I think that is a plus.
[Translation]
Ms Trudeau: Section 3.(1)(a) of the declaration of principle of the current act, says: "while young persons should not be held accountable in the same manner as adults." We do not need a new law to repeat what already exists. I would keep the title of the Young Offenders Act for the provisions which deal with young offenders. Whereas the Youth Criminal Justice Act outlines a criminal justice system for young offenders, in fact, it is not tailored to young offenders, because the proposed criminal justice system is modeled on the one for adults.
The Deputy Chairman: Thank you very much. We accomplished a great deal this morning.
The committee adjourned.