Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 14 - Evidence for October 30, 2001

OTTAWA, Tuesday, October 30, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-7, in respect of criminal justice for young persons and to amend and repeal other Acts, met this day at 5:10 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this ninth meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now convened to continue our deliberations on Bill C-7, in respect of criminal justice for young persons and to amend and repeal other acts.

We have before us, from the Ontario Crime Control Commission, Mr. Joe Tascona, and Mr. David Tilson.

Please proceed.

Mr. Joe Tascona, MPP, Co-Chair, Ontario Crime Control Commission, and Parliamentary Assistant to the Solicitor General of Ontario: Honourable senators, I wish to thank you for the opportunity to appear before you today on this proposed legislation.

Ontarians have made their views crystal clear: The Young Offenders Act is woefully inadequate. A CTV/Angus Reid poll released in 1997 found that 72 per cent of respondents have little or no confidence in the Young Offenders Act. Over the past decade, we have seen disturbing trends in youth crime. According to a 1999 Statistics Canada report, the rate of violent crimes committed by young people rose by 38 per cent from 1989 to 1999. According to the Uniform Crime Reporting Survey, in the year 2000 alone, the number of violent crimes committed by youth increased 7 per cent over the 1999 number. Again according to Statistics Canada, "Nearly all categories of youth violent crime increased in 2000: sexual assault, up 18 per cent; assault, up 7 per cent and robbery, up 2 per cent."

Even more troubling, violence among female youth in particular has jumped dramatically. Between 1989 and 1999, the rate of female youth charged with violent crime increased by 81 per cent. According to Statistics Canada's Juristat, the increase in the rate of female youths charged with violent crimes was 61 per cent and was more than double that for male youths, which was up 25 per cent.

The proposed youth criminal justice act is not only a timid replacement for the Young Offenders Act but in many ways it is weaker. For example, under this legislation, there is no guarantee that a violent young offender will ever be tried and sentenced as an adult.

The Ontario government tried to speak out against this weak-kneed legislation. Attorney General David Young, Solicitor General David Turnbull and Minister of Correctional Services Rob Samson formally requested to appear before the House of Commons Standing Committee on Justice and Human Rights. Ontario's elected officials did not even receive the courtesy of a reply.

On May 29, the youth criminal justice act passed the House of Commons in Ottawa and on May 30 it was introduced in the Senate for your consideration and sober second thought. We think your sober second thought is especially important with respect to Bill C-7, the proposed youth criminal justice act. We understand that part of your mandate is to hear from persons who did not have an opportunity to address the House of Commons committee. The Ontario Crime Control Commission asked to appear before you to bring the concerns of Ontarians to your attention.

Ontario Attorney General David Young asked us to uncover the views of Ontario residents on youth justice and to get their feedback on the proposed amendments to Bill C-7 put forth by the Attorney General. That is why, over the past five months, the Ontario Crime Control Commission held hearings across Ontario. We appeared in Scarborough, Aurora, Huntsville, Sudbury, Kitchener, Guelph, Niagara Falls, Brantford, Stratford, London, Brockville, Willowdale, Barrie and Ottawa on the proposed youth criminal justice act. We heard three overarching comments again and again across the Province of Ontario.

First, both the general public and those who work with youth, including police officers, teachers and community and social workers want it known that most youth they work with are becoming law abiding, productive citizens and adults.

Second, they want it known that, for first-time minor offences, police officers and the courts should have wide discretion to correct behaviour without incarceration.

Third, they want violent and repeat offenders restrained so that the public is protected. In the words of Irene O'Toole of the Community Safety and Crime Prevention Council to our hearing in Kitchener, Ontario, on the fateful date of September 11: "We don't believe in slaps on the wrist for murder."

We fear that the youth criminal justice act will tend to perpetuate the contempt in which violent and repeat young offenders hold the Young Offenders Act. This very small segment of the youth population does not respect the Canadian justice system, and we think that is problematic.

Mr. David Tilson, MPP, Co-Chair, Ontario Crime Control Commission and Parliamentary Assistant to the Attorney General of Ontario: Honourable senators, I wish to thank you for allowing us to speak about some of the things that we have heard throughout the province.

Further to what Mr. Tascona said, we believe there are other problematic areas with respect to the bill before you. It was pointed out to the House of Commons Standing Committee on Justice and Human Rights that Bill C-7, the youth criminal justice act, fails to take account of the cost burden this proposed legislation asks the provinces to take on. Some critics have suggested that Ontario should not concern itself with what is an area of federal jurisdiction.

As I said when we toured the province, it is provincial Crown attorneys, police officers and social workers who must explain to the victims and their families why a violent young offender received only a slap-on-the-wrist sentence. It is provincial Crown attorneys and police officers who must explain to victims and their families why a violent young offender could not be tried and sentenced as an adult.

As administrators of the Criminal Code, the Government of Ontario, and indeed every province, is asked, in effect, to take on a larger financial burden as a consequence of the bill before you.

The federal government provides funding to the provinces to assist, primarily, with programming costs. This is done pursuant to a cost sharing agreement between the federal government and the provinces and territories. In Ontario, the ministers of community and social services and correctional services negotiate the funding.

The agreements from 1985, 1986 and 1989-90 saw the federal and provincial governments share the cost of youth justice in equal shares. Since April of 1990, the federal share has been capped at 1989-90 levels. Ontario spends approximately $254 million on youth justice annually, while the federal agreement covered a maximum of $68.8 million this year. At present, the federal government is bearing approximately 25 per cent of the costs. From speaking to Crown attorneys and police officers and others around the province, we anticipate that Bill C-7 will increase the overall burden and the federal share of that burden will continue to shrink.

Bill C-7 contains an elaborate, complicated procedural scheme intended to emphasize the rehabilitation of young persons charged with criminal offences. To promote that idea, the bill offers a significantly expanded array of sentencing options designed to address what the bill considers to be the underlying causes of youth crime. The bill seeks to address these issues in as comprehensive a manner as possible, while focusing on the needs of the individual youth. In total, the bill contains 20 different types of sentences. The Young Offenders Act has 13.

As well as providing for flexibility in the sentencing of young persons, the proposed legislation gives the appearance of enabling provincial governments to choose whether to offer certain types of programming required for some of the proposed sentencing options and extrajudicial measures.

In theory, each province should have the ability to tailor the implementation of the proposed legislation to reflect its own policy perspectives and initiatives. Unfortunately, many of the program options within Bill C-7 depend upon the availability of substantial financial resources with the result that, without federal funding, provincial governments will simply be unable to implement the bill as the federal Attorney General intended. Consequently, judges and prosecutors will likely be hamstrung at sentencing hearings, unable to impose or recommend sentences that may well have significant rehabilitative or corrective potential, but are financially beyond reach. The flexibility of Bill C-7 will remain illusory unless the federal government can promise, and deliver, the necessary resources to make it reality.

I wish to thank honourable senators for the opportunity for Mr. Tascona and I to appear on behalf of the Crime Control Commission, and I thank your clerk for facilitating our appearance.

Mr. Joe Wamback, Consultant, Ontario Office for Victims of Crime: Honourable senators, I am a consultant with the OVC, but I am a father and I am a Canadian who was a victim of crime. I would rather be anywhere else tonight than before this committee. I would rather be sitting at home enjoying life with my family, my community and the fruits of my business, but that is not the right thing to do. The right thing to do is to be here to address you and to bring to the attention of the Senate issues that are of vital importance in relation to Bill C-7, the proposed youth criminal justice act.

I am here because of a violent, vicious swarming that was perpetrated upon my son who was then 15. My son spent three months in a coma and his mother and I lived with him in the hospital for those three months and an additional seven months after that.

During that time, I was interacting with the Crown, the police and the judicial system and I started to learn about the Young Offenders Act. I was frustrated by the complete lack of accountability within that legislation and the difficulties and procedural problems that exist within the Young Offenders Act to hold violent people to account in this society.

When the federal government proposed Bill C-3, the precursor to Bill C-7, I reacted with surprise. I was thrilled that a new piece of legislation was being drafted because I was told it would be a panacea, something that would cure all of the ills of our society. I read Bill C-3 and I became more frustrated. Along with the Office for Victims of Crime, I presented a brief to the House of Commons and members heard my voice, but they did not listen to me.

I have circulated in communities across Canada and I am the only witness who will appear before this committee that can claim to represent over 1 million Canadians, mothers, fathers, police officers, lawyers, judges, social workers and ordinary people who are fed up with the system the way it is. They want change. They do not want retribution or revenge. They want positive and substantive change. They do not want more process or technicality. In three simple words, they want clarity, accountability and certainty - something that is totally lost in Bill C-7.

I ask the members of the committee to look beyond the anecdotal prejudice through which victims are viewed and beyond the statistics which are so glibly thrown out before the Canadian public, which, on second examination by that very Canadian public, we recognize to be erroneous and false.

I ask the committee to recommend that the Senate return Bill C-7 to the House of Commons to produce a piece of legislation that Canadian mothers and fathers deserve. We deserve better than the bill before us today. We deserve more than process and technicality. We deserve more than a law that will benefit criminals and those who will be hired to defend them.

This bill is complex, convoluted and filled with cross-references and definitions that are non-existent. I am not a lawyer, but I have spoken to many brilliant minds in this country about the bill. I believe that if the bill is passed, it will be years before another violent young offender is ever brought to justice in this country.

Ms Priscilla deVilliers, Consultant, Ontario Office for Victims of Crime: Honourable senators, as a result of my family being victimized ten years ago, I, as President of Canadians Against Violence Everywhere Advocating its Termination, CAVEAT, have been involved in public policy debate on a variety of issues over the years. During that time, I have learned that there is an infinite capacity for change and for addressing areas that previously were not even on the radar screen. I am speaking particularly of victims and victims' issues.

I am bringing a victim's perspective to you tonight, the perspective of a victim of crime, of a victim's role in the system and of those who do not want to be victimized, but find themselves crippled, traumatized and affected by crime although they have not been the primary victims. It is with that lens that I have examined the bill and tried to give an analysis with integrity, credibility and honesty.

I have been involved for most of my career in CAVEAT with youth issues. The vast majority of my work was with youth.

According to one Juristat, students have the highest rates of personal victimization. These are children in schools and in the community. What is not reflected there is that all the young people around them then become part of this victimization; they find themselves infected with the effects of crime. We are considering a much broader area when we deal with young victims than we are, necessarily, when we deal with adults.

The same Juristat talks about rates being higher. It indicates that young people aged 15 to 24 were 21 times more likely to be victims of violence than those in the 65-plus age group. That may be one of the reasons that society is so deeply concerned and so critical of youth justice.

We have learned, over the years, that we do not necessarily have to be tough. What we need is timely, effective and honest responses to youth crime and to youth victimization.

I must say that, when I first saw this bill in its incarnation as Bill C-3 some years ago, I was initially gratified to see that young victims were included in the broad definition. However, on careful analysis and on reading the fine print, I have found that, in effect, youth victims are not well served by the bill. The extraordinary complexity of the bill will lead to a whole set of new problems when it comes to young victims of crime, who now will be directly involved in youth justice.

During my last period as President of CAVEAT, together with the Office for Victims of Crime, we canvassed opinions from people in the field, case workers, those who dealt with young people on every level, multidisciplinary opinions from right around Ontario. We have included the recommendations that emerged from those deliberations in the Vision report: "Youth Safety Strategies Report 2000, Youth Violence in Ontario Schools and Communities," for your consideration. I urge you to examine that.

Our concerns reflect this rather extensive canvassing of opinion. I am here tonight to ask you to please examine this. Look at the fine print. Analyse the bill and find that it will not, in its current form, serve the young victims of this country in any way, and that it really should have further consideration, refining and greater thought.

Sergeant John Muise, Special Project Team Leader, Ontario Office for Victims of Crime: Honourable senators, it is a privilege and an honour to be here to participate in the democratic process. I will tell you about myself so that you understand from my experiences where I am coming from, and why Bill C-7 troubles me so much.

I am the police officer in the group. I am a 26-year veteran of the Toronto Police Service. I have spent the past three years at the Office for Victims of Crime working on these issues.

Although I am here on behalf of the Office of the Victims of Crime, as an interest group, per se, I have extensive frontline experience. I will tell you a little about that so that you understand why, as it is currently constituted, Bill C-7 must not go forward.

In 1989 we created a community-based unit called the Street Crime Unit in Toronto. We were a bunch of young cops and we were flying by the seats of our pants. We created this unit and engaged in police school partnerships. We were the first of our kind in Canada. In the way we were constituted, we may have been the first of our kind in North America.

It was a community-based model. In doing what we did, we reduced the reliance on the criminal justice system. I think that is a good thing, in particular as it relates to young offenders.

We did that through fairly creative means. We protected victims and reduced opportunities for offenders by using peace bonds and creative bails, and sometimes by following those up with creative probation orders. They worked well. The irony of it all was that going to court and sending someone off to a facility, be that closed or open custody, was something that we often did not have to do. I urge any of you who are curious about whether our model worked to access the Solicitor General of Canada Web site. The Solicitor General had the good sense, in 1994, to write a report about our office. It was called the "Anti-Violence Community School" report, done by a wonderfully practical academic, Dr. Fred Matthews. He found that victims and offenders were helped when cops were connected to them, worked near them, in terms of community safety, school safety, student safety, and offender and victim safety.

As Ms deVilliers pointed out, the reality is that although young people are often victimized through familial violence, more often than not violence involves young people on young people.

We had a significant amount of success. The Anti-Violence Community School report validated that. The reason I tell the story of where it came from is that we did not need extrajudicial sanctions. We did not need legislation about how to administer the law. We did this all by ourselves. Bill C-7 is about how to administer the law and I can just envision what will happen in courtrooms when we have this sort of laundry list of things to go through.

What was done by the Street Crime Unit has been done by police agencies and other agencies across the country, with few dollars, with nothing but commitment to children, both offenders and victims. They are doing it on their own.

I know that you have had other police officers, both chiefs and association representatives, who have told you that they think extrajudicial sanctions are okay. They consider it benign. It is not benign. It will handcuff our ability to respond to children in a creative and proactive way.

Our unit is also able to do our own mediation, resolution and conferencing. Our detectives used to conference gang members to engage them in a geographic truce. We did that all on our own. We did not need a lot of legislation.

Youth violence is getting worse. Make no mistake about it, it is worse. Mr. Newark will discuss the statistics. We know that violent crime perpetrated by young offenders is up, in excess of 100 per cent from 1986 through 1999. Earlier conflicts were with fists and boots. When youngsters jumped in, they jumped in to break up a fight. I am 45 years old, so I can remember that sort of thing.

Now, when young offenders fight, it is not fists and boots, one-on-one, it is groups and gangs. When they jump in, it is with weapons and it is not to break up a fight; it is to carry the fight on. These things are later settled in incidents where young people end up dead, or almost dead.

I am stealing one of Mr. Newark's lines. Why has a bill been written that seems to cling tenaciously to that small number of violent and repeat offenders with which we have so much difficulty? The bill seems to cling tenaciously to "serious adult crimes," and yet brings in these extrajudicial sanctions.

The Young Offenders Act was great when it came to minor players. It allowed us a tonne of latitude. Why are we "bureaucratizing" the operation of police officers and other community organizations that are really getting on top of how to deal with kids? If your counterparts in the House of Commons really want to do the right kinds of things by young offenders and victims of crime, rather than write this kind of legislation, they should do what their counterparts south of the border did: Put the money toward good police in schools partnerships. I was in Washington, D.C. in December where literally hundreds of millions of dollars were spent on cops in schools programs because that works.

I will wrap up by saying that the extrajudicial sanctions are complex. Statement taking is complex. All of this will bog things down in court. We want society to view youth legislation with respect, and the proposed legislation will not work. People will be who horribly disappointed. They will be let down.

If Bill C-7 is proclaimed as it stands, within a week of its being proclaimed criticism will start up again in the media, and it will not go away. Much of that criticism will be legitimate.

Mr. Scott Newark, Vice-Chair and Special Counsel, Ontario Office for Victims of Crime: I do not want to scare anyone with the size of the brief that we produced. Most of it is appendices. I will try to summarize the brief, which is at the beginning.

Unlike many of the other presentations that we might make, we did not offer alternatives to the legislation. As Mr. Wamback said, we are of the view, having reviewed this carefully - and we also testified on Bill C-3 - that the nature of this bill is such that you should at least give serious consideration to whether the bill should be sent back. We tried to point out the instances in which you may wish to exercise what is obviously a remarkable kind of authority to do something like that.

The first area is whether there are issues of constitutional validity in the proposed legislation. Is it overreaching. Criminal law powers now reach inside police vehicles and tell police how to think and exercise discretion. I would be happy to discuss that with you in the provisions of the bill. It is all in our presentation.

However, every component of the justice system is dealt with in the same way, in the way in which it administers criminal jurisdiction to pass criminal law. I have been analysing federal legislation for about 15 years. I have never seen a bill as far-reaching as this.

Second, I would suggest that there is perhaps an issue in relation to clause 12 in the treatment of crime victims. I would suggest that you bring back the minister and ask her or her officials why this bill will force subjective litigable issues on the presumptive transfer of offences rather than do what we have normally been doing about scheduled offence to make determinations. We will force victims to come back to the witness stand to be cross-examined about the nature of harm and injury that they suffered.

I would suggest that raises the potential of clause 12. That may be an interesting issue as to whether those rights exist for people other than offenders. That is something I would urge you to examine.

Another reason is the process. Attached to our presentation are the transcripts from the House committee on the consideration on Bill C-7. As you are aware, there were two half days of evidence. There were officials from four provinces. There are 106 amendments to this bill from Bill C-3.

There were objections raised. The majority of the people on the House committee did not hear the evidence of the previous witnesses on Bill C-3. I have included an extract of an exchange between Ms deVilliers, Mr. Blaikie and Mr. Toewes that I have never encountered before on the subject of refusing to allow an elected official to appear. I would suggest to you that, procedurally, this is a remarkably flawed process to get people here, although I may suggest you take a remarkable remedy.

On the substantive concerns, we just gave examples. As Mr. Muise suggested, examine the top end of offences and what you have to do to be transferred into adult court. With respect, I would suggest that is ridiculously high.

Examine the bottom end in terms of diversion. Consider the length we are going to drive offences out. Consider the way crime victims are being treated by this legislation. I would suggest, as I know others before your committee have, delay and consequential expense will result from this bill. With respect, I would suggest that this bill really should not be foisted on the Canadian public.

We will do our best to answer any questions you may have.

The Chairman: Everyone has said that they were not able to appear before the House of Commons. However, we are here in the Senate, and we are listening to you. You have been welcomed here.

Senator Andreychuk: I wish to thank you for coming and giving us a hands-on perspective of Ontario.

We have heard comments about the severity of the approach in Ontario. I was pleased to hear from Mr. Tascona that, in your study, people are concerned about the victims. You pointed out that you want to use alternative measures. You are concerned about violent offenders and repeat violent offenders, and note that something should be done about them in the bill. I appreciate that perspective.

I wanted to ask Mr. Tilson a question. The Canadian Bar Association told us when it appeared before us, that it was not concerned with the fact that the federal government was using this proposed legislation to force provinces to give social services remedies, or dollars, to be frank, and this was one way of doing it: Exercising federal power to ensure that all of those social things are done for children.

There was a feeling that a crime does not start at 12 years of age or even at seven years of age. Crime is often rooted in early problems that are not corrected, whether they are in school, community, or problems of mental health, fetal alcohol syndrome et cetera.

The Canadian Bar seemed to say that it was all right for the federal government to put pressure on the provinces by using its criminal law authority. Would you respond to that? Would you tell us whether, when you were calculating the costs and how the 50:50 scheme was reduced, were you analysing only the cost for the criminal youth system or do you have figures to indicate cost sharing has gone down in other areas?

Mr. Tilson: The comments that I made are strictly with respect to the youth justice area.

I cannot comment on the remarks of the Canadian Bar Association. I am a lawyer but I have not been one in a long time, so I do not profess to know about those things. All I can tell you is what people in the process have told me, whether they be Crown attorneys or defence counsel.

Defence counsel are salivating over this bill. They can hardly wait. They are looking forward to having this bill. Judicial people have told us that they do not understand the bill. It is very complicated.

We have also spoken to the social workers. Much of the presentation that we are making is with respect to the violent young person. Other areas of the law will also require rehabilitation. We support rehabilitation but not in the way it has been presented. Mr. Newark and others can elaborate more on that.

Social workers are telling us they will need more courses, more knowledge and more bodies. The police are saying they, too, will need more training. The figures that I gave to you cover court processes, judicial processes, as opposed to what happens afterwards.

I do not know whether any witnesses will appear before your committee to speak about those figures. I can only tell you what people have told me at our hearings: It will take more money, money that the Province of Ontario, specifically, does not have.

Mr. Newark: That is an interesting use of the federal spending power, frankly. I reference LaForest's text, which I suggest is the definitive work on this. In my opinion, it will certainly be relevant as to whether there is an intrusion under section 92.14 of the Constitution Act, if there is that kind of an extension and if it is deliberate. I suggest you ask the minister whether the increased resources being offered have strings attached. Will money be given only for specified programs? That again would be evidence of an intrusion. The government is enacting the criminal law but, in the process, intruding onto the administration of justice itself.

Senator Andreychuk: If the money comes with a precondition that 80 per cent is to be used for non-custodial activity within youth criminal justice, would that be an example of what you are talking about?

Mr. Newark: That is exactly the example that I am giving. Absolutely.

Senator Andreychuk: Mr. Wamback and Ms deVilliers, you have made a good point that victims' needs must be addressed. Do you see a difference in the approach envisioned by Bill C-7 - I appreciate it is much more legalistic - and what is actually happening under the Young Offenders Act? In other words, are judges allowing victims to come forward?

Mr. Wamback: In my comparison, I see Bill C-7 as removing rights that victims have held since time immemorial in this country. They are removing rights to private prosecution. There are procedures that will be set in place if this legislation is passed that will virtually eliminate victim participation in extrajudicial sanctions. It is a regressive step.

Ms deVilliers: We have a list, by the way, of all the areas of the bill that we have flagged as having serious impacts on young victims. I will not read through it now.

One of my overriding concerns is that, although victims are mentioned in the principles, they are conspicuous by their absence in many other clauses which are carefully detailed when it come to young offenders. Clause 4, for example, is a very important clause but it makes no mention of victims whatsoever. Does that mean they are not included there? I suspect that, on analysis, victims could easily not be included.

Clause 6 and clause 8 permit or, possibly, mandate not laying charges where a crime has occurred without input from the victim. Each of these clauses must be analyzed. On each of these areas from which victims are excluded or where they are included but in a problematic way, we must have serious thought. This bill will have an enormous impact on victims.

I speak from sheer and bitter experience. Look at this bill. If implementing this bill costs what I fear it will cost in terms of training, resources and all the rest, victims will once again be left, as orphans of the system, trying to deal with all the various complexities where they have been left out.

This bill has a very serious effect on what appears to be recognition of the victim as part of the bill.

Mr. Newark: I urge you to examine our documents and then call the officials or the minister and ask them whether we are right in our analysis. There are two huge steps backward here. The first is the notion of not using scheduled offences to determine if someone will be eligible for presumptive offences. We are talking about the worst kinds of offenders.

Instead, we have chosen, for some reason, to use individual subjective terms, such as "serious bodily harm." The offences must include that. That means we must call people to give evidence. That is a terrible thing to have to do. As you know, in other legislation, we use scheduled offences all the time.

Surely to goodness, if someone is convicted of aggravated sexual assault or armed robbery that should be good enough. We should not have to say, "Tell me about this charge."

Equally, in the definition, we are taking a step backward in the meaning of "serious harm." The Budreo case examined a bill passed years ago, Bill C-45, that expanded the definition of "serious harm" to include psychological trauma. That is not in this bill. The courts may have to ask, "Well, when you were raped, were you cut?" Serious harm and trauma are included and that is a retrogressive step that has no place in legislation like this. It is badly drafted.

The Chairman: I wish to point out to Mr. Tilson and Mr. Tascona that we have already heard over 60 witnesses on this bill. We are not cutting short our deliberations whatsoever. We have made an effort to hear from every part of the spectrum.

Mr. Tilson: I am pleased to hear that. I referred to the House of Commons committee.

The Chairman: That is its problem, not ours.

Mr. Tilson: That was the purpose of the comment. You are doing an outstanding job, senator, and we appreciate it.

Mr. Newark: You just may want to take that into account and you may wish to send it back.

Senator Beaudoin: Mr. Newark, the federal spending power does not include the right to attach circumstances or liens that go too far, obviously. It is more difficult from a legal point of view. This bill is based on the criminal law power of the federal authority in the Constitution Act, section 91.27. However, Quebec is challenging in the court the question of the possible intrusion in the field of 92.14 and, to a certain extent, family law, although some aspects of family law are federal and others are provincial.

Your argument is interesting. Perhaps it is going too far under the criminal law power. On the other hand, it is very difficult to foresee the reaction of the courts because of the ancillary powers of the federal and provincial legislatures.

Your remark is interesting. I have it in mind. Do you want to elaborate on that?

Mr. Newark: I am not sure that it really makes much difference if one has a perspective of this bill as being good or bad. That was always the irony. Some people from Quebec, for entirely different reasons, agreed with some people from Ontario that this is not a very good bill. That is why we have law and the entire constitutional framework.

The point is the intrusiveness. No matter how you foresee that intrusion being manifested, there is a common anticipation of intrusion by exercise of the federal criminal law power. I provided a couple of examples. The brief contains details.

From that perspective, it is worth asking whether the bill is simply overreaching? Has the bill not gone so far as to actually be unconstitutional? It is not a normal question to ask, but there is such a remarkable and extensive intrusion that I suggest it is very much an issue for the committee to examine.

Senator Beaudoin: Perhaps it will be challenged on that ground that there is a certain intrusion. However, is it to the extent that it is ultra vires. This is of great interest to me. Your remark is interesting.

My other question is directed to the last four speakers. You feel very strongly against the bill and I would like to know more about your reasons for that. The bill is complex, but this is not the first time that we have complex bills before us. I maintain that it takes time to draft a clear-cut bill.

Do you have something in particular in mind when you say that? Would you prefer no bill than a bill that is complex? Would you suggest that we are invading the rights of young people?

Mr. Wamback: I have spent two and one half years examining what happens to the lives of not only the victims and their families, but also the lives of the offenders and their families. To introduce additional complexity will destroy the very concept of what justice should be - quick. There should be dispatch, shortening of the time frame between the offending behaviour and the consequence. Any consequence becomes meaningless in the life of a young person who is growing up. I will talk about my son's case. It was over two years from the time of the arrest until the time of the conviction. Two and one half full school terms went by. These children were returned to school. The consequence was not immediate and, certainly, has not been final. It is very difficult. We, as society, owe young people, the victims and the accused, speedy justice.

The proposed legislation, according to experts with whom I have spoken, would introduce an additional 13 hearing stages and will create trials within trials. We will not reduce the amount of time necessary to seek justice, or to seek consequence if that is to be sought. Extending that time will destroy the public's already diminished faith in the judicial system in the country.

I have spoken to people from coast to coast. My wife and I have personally spoken to over 8,000 people in the last two years. The lives of those individuals have been affected by violence. Without a change in the system to reduce the amount of time that is required to bring young people to justice, we will do them a tremendous disservice.

Senator Beaudoin: Thus far, I am impressed with the alternative measures. The justice system for young people should be different from the justice system for adults.

Mr. Wamback: I agree.

Senator Beaudoin: If we consider the alternative measures - and I am not an expert in that field - it seems that they work. I am inclined to believe that this is the proper way to proceed. We cannot be harsher in the bill without running the risk of people saying we have created a system that is very tough and nothing else.

Of course, it is not that simple. You may say that you do not like such a system because it is not fair and it is very complex. What then are we to do with the bill?

Mr. Wamback: Senator, I will answer the rest of the question that you asked. I believe that the current young offenders legislation is far superior to the proposed legislation.

Ms deVilliers: There are so many things to talk about.

To deal with the alternative measures, absolutely, this is something that has been developed over time. Certainly, with first-time, non-violent young offenders, it is enjoying much success. I am doing a research project at the moment and I met with the people responsible for the Ontario community boards, who are showing great success.

Going back to my original statement, I am looking at this through a victim's lens because we have fought long and so hard for victims of crime to have some consideration within the law. As I said, youth victims, in particular, need that consideration. They are so impacted within their community, schools and so forth that, if there is to be confidence in the system, or any sort of reparation, consideration must be there. My concern with the bill and its complexity is that there are many areas for potential disservice to victims.

For example, there is one mention in the bill that is of particular concern: the absence of bail condition, restricting offender attendance at school of victim and witnesses. This is a bill that deals with minutia, and yet, a full 63 per cent of victims of youth violent crime are under the age of 18 and almost all of those are acquaintances of the victims. We find that there is a phenomenon of forcing the victim to endure the continued close and unsupervised presence of the attacker within the schools. This issue is not addressed in the bill.

Senator Beaudoin: Does the bill respond adequately to the International Convention on the Rights of the Child?

Ms deVilliers: That depends on your definition of the "rights of children." I must say that usually the law is biased very strongly toward the rights of the young offender. We must ensure that it responds adequately to the rights of the young victim because they are included in parts of the bill.

I am asking you to draft this complex bill carefully. Let us consider all these issues, close the loopholes and address these problems. Then we will have a good bill. At the moment, important areas have either been left out or are inadequately addressed. That is my concern, not the complexity, per se.

Mr. Muise: I try to consider the bill in a practical way. As a front line police officer, that is what I must do. Concerning statement taking, section 56 of the Young Offenders Act, I was reading the testimony of witnesses who have appeared before the committee and I smiled because someone from the Canadian Association of Chiefs of Police and someone from the Canadian Police Association, CPA, talked about the seven-page waiver form that was written by the Street Crime Unit. We created that form many years ago because at court we were trying to get statements put before judges under section 56 of the Youth Offenders Act, and we were failing miserably. We could not get them in. We wrote that thinking that we could get all the right answers to the questions we asked in this seven-page document because we were a specialized unit and we were able to fight and go four hours overtime. You may laugh, but getting stuff done within a ten-hour shift is hugely important in these times when are only so many dollars in the jar. My concern with Bill C-7, in the statement taking section, is that perhaps the seven-page document will grow to ten pages. It has not become any easier to take a statement from a young offender. From a complication point of view, it is similar but different.

On the subject of information sharing, I read the presentations by the school board folks. The one time that I have been consulted in an appropriate way was before the legislative changes to the YOA in 1996, in terms of information sharing. The Department of Justice got it pretty much right in terms of allowing more information sharing. The department spoke about how it wanted a "shall," and if it was a "shall" rather than a "may," it was prepared to accept the legislation. I do not altogether agree with the department, but I would say that rather than this horribly complicated thing, we should simply provide the resources to those of us who are in the field doing the job.

Senator Beaudoin spoke about how these things might be able to be solved at the local level. If we had the resources to do that and if the right kinds of things in terms of training could be done, the school boards would be getting information. I can tell you that at the Street Crime Unit, every single principal in charge of every single school with which we were connected knew every single bail condition and every single probation order and every other order that related to the school. We had a partnership and there was information sharing.

This is big picture. The complexity does not help us. It bureaucratizes what we already do very well. Give us tools, more bodies and the money. That is what we need. We do not need an "overbureaucratization" of conferencing and mediation and resolution.

Senator Joyal: Mr. Tascona, I understand that last week the Ontario government issued its decision about using clause 61 to reduce the age from 16 to 14. Could you confirm that for us? A two-page document was circulated. Perhaps Mr. Muise has seen it. It gave the position of the Ontario government on the use of clause 61, which says:

61. The lieutenant governor in council of a province may by order fix an age greater than fourteen years but not more than sixteen years for the purpose of the application of the provisions of this Act relating to presumptive offences.

Mr. Tascona: I would have to check that. I am not aware of that.

Senator Joyal: Mr. Tilson, you made an interesting presentation about costs. We have been wrestling with that as well. The witnesses that we have heard have evaluated the efficiency of the objectives of the bill on two grounds. The first is the buying in, or general acceptance, by the province on the objectives of the bill, and the second is the money that should be flowing for implementation.

We have been told that there was an additional envelope of $250 million, of which two years were already covered. In other words, that additional amount of money would have been already distributed among provinces on the basis of two years. That means that there are still three years to go.

I would like, if possible, to get from you the Ontario share on the basis of the last two years, and what the three further years would represent in terms of your budget and the costs that you have determined for implementing this bill.

Mr. Tilson: I cannot tell you that. I do not want to mislead you, but I seem to recall that the figure given was $270 million across the country for three years. That is not the point. That amount is across the country. On your question, specifically what is Ontario's share of that, I do not know. We can try to get that for you.

I simply emphasize what I said in my prepared presentation. Just on the type of proposed sentencing options, considering the myriad of them, with the current stretched resources, I do not know if this can be done. That is something that you must consider. Resources are stretched to the bone now. Perhaps you do not accept the fact that it will cost more for every part of the system, whether it be judges, Crown attorneys, police and on down, and then there is the sentencing part and where we go from there. Every player says the money is not there.

The federal government must provide substantial funding. This funding that you are speaking about, if I understand your comment, is one-time funding. That is it. After that we will be back to 25 cents on the dollar.

I do not know the answer. Frankly, we must ask, once we get back into the routine of 25 cents on the dollar, if that will be enough. It sounds like you have heard, extensively, more witnesses than I have, but I expect that you have heard the same type of comments. That is not there.

Senator Joyal: If you can provide us with additional information, we would certainly appreciate it.

Mr. Tilson: I will do my best, sir.

Senator Joyal: This is an issue that we have been examining carefully.

Mr. Tilson: I will do my best to provide that.

Mr. Newark: If I may add one thing about cost, the relevance in practice is that if something is too long and involves too much cost, there is a disincentive to use it. For example, on transfer hearings, whether you accept our analysis and suggestion that they are biased or they are not as efficient as they otherwise could be, if we are right about the net effect B that they will take longer because we have expanded the right of preliminary inquiries and that the criteria by which judgments will be made and all of these kinds of hearings - that means it will be dramatically more expensive to actually use these most serious provisions. Mr. Muise is currently a police officer and I am a former prosecutor. I assure you it means we will not use them. We will consider the cost involved. You must keep that in mind because that is what is put forward as the answer to the serious crime. If it is too expensive to use, it is illusory. That is the killer about costs. It is not just dollars, but also the effect on overall integrity and confidence if we do not use the stuff because it is too expensive.

Senator Joyal: I expect that you will be able to provide us with additional information. The point you raise is valid.

For my next question, I would refer to page 5 of Mr. Newark's brief. My colleagues, especially Senator Grafstein from Toronto, have previously raised this subject. I would like to read the first part of the second paragraph that refers specifically to the constitutionality of the bill in relation to section 15 of the Charter.

I quote:

Additionally, while the SCC ... has refused to find a s. 15 equality rights Charter breach where a province did not implement an alternative measures program, the fact that C-7 will permit a province to apply different rules of applicabil ity is almost certainly relevant to a determination of whether the legislation is constitutional.

This issue has been raised by Senator Grafstein with other witnesses. As you know, it is part of the third question that has been raised by the Quebec government, in its reference to the Quebec Court of Appeal.

I do not know whether you have additional arguments sustaining that, but we have heard testimony from a group from Quebec representing alternative measures. One of the witnesses argued with a certain list of references from the previous Supreme Court decision. We remember that one of the decisions of the court reserved the issue of age as a factor to be considered when there are different initiatives taken from various provinces. Clause 61 deals with differences of age, which would confirm the point that you make. Any kind of additional information would be beneficial.

Mr. Newark: I have a very limited constitutional law library in my house where I was writing this, although that is why I wanted to go to law school originally. What jumps out about this, of course, is that you are not dealing just with an option of something, the way you can deal with someone. It is a fundamental eligibility that the mechanisms of the act will apply differently. That, to my knowledge, which is not extensive, will trigger a different analysis of section 15 and its applicability. I suspect that is what will be unique about it because, literally, it will be that, depending on which side of the river you live, you will either have this bill apply to you in one way or a different way. I think that is new. Whether it is unconstitutional, others more learned than I will determine. It is certainly new.

Senator Joyal: Mr. Tilson, would you consider it appropriate for you to ask for the status of intervenor in the Quebec Court of Appeal to support that view?

Mr. Tilson: The attorney will be here tomorrow, and I think he will give as vague an answer as I will give today. It is under consideration. To say now what we are prepared to do, I cannot tell you.

Senator Joyal: Of course, I do not have to stress that the decision would be positive in terms of its unconstitutionality that would apply across Canada.

Mr. Wamback, I read an interview that you gave to the Edmonton Sun on September 10 in preparing for the understanding of this bill, which is complex.

I have listened carefully to what you and Ms deVilliers have to say about the involvement of the victims. I share your opinion that it works both ways. It might be positive for a young offender to try to seek repentance with the victims. I think part of the process of rehabilitation is to realize the damage and the consequences of his or her gesture. At the same time, I share your views totally. It can be very traumatizing for a victim and, as you said, sometimes psychologically more than anything else.

I have seen in your brief some specific elements of that. If there are any priorities that you would have to take in terms of improving this bill with respect to rights of the victim, which ones would they be?

Mr. Wamback: It will take a long time for me to explain my position about where I think improvements can be made. I am an engineer by profession. My beliefs are deeply rooted in my training, in my education. When I am presented with a design that is flawed, that I know will not work or will create more problems than it will solve, my advice is always not to try to manipulate, change or rework what is already flawed, but to start again and do it right the first time.

In terms of victims' participation with their aggressors, it is a different scenario to bring together a victim and his or her aggressor in cases of extremely violent crime due, specifically, to psychological trauma as well as physical trauma. I am talking about a victim who has survived a violent attack in the specific case of my son and about other young men we have met in the past two years.

My wife and I are doing the work that we have done in this country, travelling and speaking to people, of our own volition. We are not funded or supported by any organization, philosophical, political or otherwise. We receive no money from anyone. We do it because it is right and we do it because we believe that solutions, although it is a very complicated problem, are not that difficult. It takes political will to do the right thing. In our opinion, the right thing is to treat violent criminals in accordance with the Criminal Code that already exists in Canada and to treat non-violent criminals, young men and women who make foolish mistakes, outside of the judicial system. We are not trying to make things tough. We are trying to do the right thing to protect society from violent and repeat offenders. There are young people who, at the tender age of 12, would terrify you. This system is not designed to deal with those people.

Ms deVilliers: Let me say two things. First, I believe there must be consistency. We must examine all the areas that deal with victims and ensure that they are consistent throughout. Second, we spoke about extrajudicial measures. This would seem to be the perfect place, if we consider the principles of restorative justice and so on, for victim-offender reparation, where, I might add and emphasize, the victim so wishes.

Yet, in clauses 4 and 5, there is no mention of the victim. It seems that it is inconsistently addressed. One might say that it appears at the beginning in the principles. However, this is the one place that you think there would be some mention of victim participation.

What bothers me most, and Mr. Newark spoke to it - I was also involved in the Wray Budreo deliverations and the agonizing about the fact that you have to prove harm - that children have to prove harm basically, particularly in serious violent offences. What probably stands out in my mind as the most retrogressive step in this whole thing is that one could ignore that principle and show that the victim now has to prove in court that there has been harm. We established in 1996 that it must be accepted that there will be serious psychological harm, and that you do not have to show the wound. That I find extremely difficult. We have a number of others and we have listed them.

Of paramount concern to me and to the Office for Victims of Crime, is that the bill needs serious, honest, step-by-step analysis to determine where victims have been included and what the results of that might be because there may be some extremely detrimental results. We have named instances. In other cases victims are conspicuous by their absence, whereas they should really be included. I feel that this clause has not been properly thought out.

The Chairman: Ms deVilliers, paragraph 5(d) says:

(d) provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation; and

Senator Beaudoin: Paragraph 5(b) is also pertinent.

Ms deVilliers: I will make a correction, I was referring to clause 4, under "Principles and Objectives."

Mr. Newark: Victims are also excluded from decisions in relation to any of the diversion decisions. They are excluded from the youth justice committees, except insofar as they participate in the context of offender reconciliation. The rights in relation to pre-screening programs will, I assure you, be very different. As to whether or not they have the capacity, I do not happen to agree with the decision not to lay charges. The historical ability of, "If I do not agree, I will lay a private information," is not included in the bill.

There is a long list of items that we have provided. I would suggest you examine that list and ask questions in that context. There certainly are some spots where victims are included. My suggestion is that those areas are functionally not very important and they are missing two big areas: The retrogressive steps and the principles.

One place where we did offer an alternative is in a statement of principles for the bill that we think is fuller and more balanced. That is in the brief.

Senator Joyal: Mr. Muise, you mention in your statement that you were part of the consultation of the department in 1996. If you were part of the consultation, do you find in this bill some reflection of what you proposed, taking into account your experience in the field as an officer dealing with young offenders generally?

Mr. Muise: What I was referring to was in reference to the specific clause about information sharing, where the section was actually enhanced in 1995 or 1996. I was involved informally with people from the Department of Justice. I received a phone call at the last minute saying, "Would you live with this?" Based on the vast improvement from the previous section 38 in the Young Offenders Act, I said, "Sure I could live with it."

In terms of the wide-ranging consultations that have been ongoing for years, I was involved at one meeting in the city where there were 30-odd people in the room and I was the only police officer. I have thick skin, but that was not what I would refer to as a consultation. I left knowing full well that the person in charge did not accept things that I had to say. That was my experience and it was a very negative one. I did not feel that my views were being listened to. I was consulted in two ways, formally and informally. My informal consultation around the information sharing was positive. The formal consultation I found to be negative. That is life.

Senator Fraser: Mr. Tilson, I was struck by your comments about added cost, which I took to refer not only to longer court proceedings, but to the entire elaboration of extrajudicial measures.

I am from Quebec. My province is, by any measure, poorer than your province. Its fiscal capacity is substantially less. Quebec is a "have not" province. Ontario is right up there on the "have" list.

Years before the $270 million came along, my province made a political choice to establish an elaborate system of alternative measures for children. It did so because that was the right thing to do, in its political judgment. There is never enough money for anything on God's green earth, and those measures could use more money. However, to the extent that the government could possibly do so, it made doing so a priority. That suggests to me that we are talking about provincial political choices.

The Province of Ontario has judged, and I take it from what you say, will continue to judge that this is not the right way to go.

Mr. Tilson: I cannot tell you what the story is in Quebec. You obviously know that. I can only tell you about the people with whom I have spoken, professional and lay people, who are familiar with what goes on in the system.

You are right, there is never enough money, no matter what province you are in, no matter whether you are talking about ten years ago or ten years in the future. I agree with that. Concerning the processes that are being suggested, whether in the court system or the proposed types of sentencing options and what the police are required to do, I do not have any statistics on that because it is crystal ball gazing. I do know that people are saying, "This is what we have now and we are having a tough time doing these things." The Crown attorney, the police and the social worker dealing with the sentencing issues cannot do the things that are to be added.. That is what they are saying.

I cannot believe that is not being said in the Province of Quebec. I cannot believe that the people in Quebec are saying, "We have enough money."

Senator Fraser: The people in Quebec are saying, "We need more money."

Mr. Tilson: Darned right they are.

Senator Fraser: Their concern about the bill consists of a fear that we may be limiting Quebec's capacity to engage in extrajudicial measures.

Mr. Tilson: That is a philosophical difference. I am not familiar with the Quebec reference that has been referred to. However, with the small understanding that I do have, I believe it is a philosophical difference. It is probably different from what the Ontario people are saying. The Ontario people are saying the bill is too weak and the Quebec people are saying it is too soft.

I am talking about the resources. Regardless of which side you take, my comments specifically referred to resources without getting into the political lines that arise in Quebec or Ontario. There are not enough resources.

Senator Fraser: I was talking about how one chooses to use the resources that one has.

Mr. Newark: Mr. Bellehumeur, MP for Berthier-Montcalm, has expressed his concerns about the increased costs as a result of this bill that specifically expand the potential for people to make preliminary inquiry applications. More preliminaries can occur.

Senator Fraser: The witnesses before us did not raise that issue.

Mr. Newark: Mr. Bellehumeur raised that issue in the House of Commons about the expanded costs arising from that directly.

Senator Cools: Clause 25(10) relates to recovery of costs of counsel. To the extent that there are Ontario members before us, I should like to know why members or the Government of Ontario would possibly want a clause like this. Essentially the clause says that:

(10) Nothing in the act prevents the lieutenant governor in council from establishing a program to authorize the recovery of the costs of a young person's counsel from the young person or the parents of the young person.

Why would the government of Ontario or members of the provincial Parliament of Ontario want such a clause? Perhaps nobody told you gentlemen that this clause was there.

Mr. Tilson: I will let Mr. Newark answer that question.

Mr. Newark: As you know, this is a bill passed by other than the Government of Ontario. I suspect it would be quite different if it were the Government of Ontario passing it.

My understanding from anecdotal discussions is that there are circumstances where there may be people, amply able to afford to pay for counsel for their kids, who are able to avail themselves of the provision of publicly funded counsel. I have been there for three years, but I have never heard anyone say that the Ontario government wanted to get everyone to pay for all his or her own counsel. My knowledge is confined to that small area.

Senator Cools: It says that nothing prevents it. If nothing prevents it, why is there a statutory provision saying nothing prevents it? If nothing prevents it, then nothing prevents it. There is no need to say in law that nothing prevents it.

Mr. Tascona: To consider it as it reads, it is obvious from the reading what it says. This permits the province, through its lieutenant governor or his or her delegate, to do such things. It provides an option to deal with that. Whether the lieutenant governor puts that in place, it is basically a tool that the province is allowed to use. That speaks for itself. Whether it will be used is unknown. It is not just for the Province of Ontario; it is for the entire country.

Senator Cools: It is not. It does not allow the provinces to do that at all. It is not an enabling provision. This bill is thick, heavy and cumbersome, and filled with dozens of clauses that could easily be removed and nobody would notice the difference.

Mr. Tascona: Your point is well taken. The clause did not have to be put in there.

Senator Cools: If nothing prevents it, then nothing is needed to say that nothing prevents it.

Mr. Tascona: It is directory. The proposed legislation directs by saying "This is what you could do."

Senator Cools: It is not.

Mr. Tascona: The provinces do not have to.

Senator Cools: It is not an enabling clause at all.

Mr. Tascona: It is a matter of how one interprets it. The language is to say that is not being taken away from the province. It is a very directory bill.

The Chairman: I am curious about the Ontario Crime Control Commission. What is the makeup of this commission? Is it made up of members of Parliament in Ontario, Mr. Tilson or Mr. Tascona?

Mr. Tascona: It is made up of three members of the Province of Ontario. Mr. Wood, from London, is the other member. He is a parliamentary assistant to the Minister of Correctional Services. Mr. Tilson and myself are members. We have a staff and we report to the Premier with respect to different matters of safety and justice.

The Chairman: There are no opposition members on this commission. Is it a one-party commission?

Mr. Tascona: This commission is only made up of members of the government, yes.

The Chairman: Was no one else invited to serve on it?

Mr. Tilson: It is a commission appointed by the Premier of the province.

The Chairman: Thank you very much for appearing before us. This has been an informative session.

Honourable senators, we have before us the Honourable Gord Mackintosh, Minister of Justice and Attorney General of Manitoba, and Mr. Chris Axworthy, Minister of Justice and Attorney General for Saskatchewan.

The Honourable Gord Mackintosh, Minister of Justice and Attorney General of Manitoba: Mr. Bruce MacFarlane is the Deputy Attorney General and we ask leave of the committee to allow him to sit at the table.

I thank you for the opportunity to make a presentation on the issue of youth justice in Canada.

Manitoba has long held the view, which comes from our particular experience in the west, that this issue is certainly one of most significant concerns facing Canadians today. I want to make one thing clear: The Province of Manitoba is in agreement with a number of provisions of the proposed Youth Criminal Justice Act. For example, we fully endorse the concepts of increased use of community justice and greater accountability of a young person in accepting responsibility for his or her actions. Of course part and parcel of our respect for community justice and the need to develop community justice is our respect for the role of the victim in the criminal justice process, which we think can be better assured in the community justice model.

Having said that, Manitoba is actively exploring ways to develop community justice in that province. We are concerned that this bill does not go far enough to ensure effective and meaningful response to youth crime that is capable of protecting society.

We have had these discussions in different quarters in Manitoba, and our approach is based in part on an analysis that we should have less reliance on that arbitrary factor of age in considering how the criminal justice should respond to criminal wrongdoing. We think that age, when used to develop a system, is always necessarily arbitrary. There should be increased reliance on individual assessment of both the offence and the background of an offender in assessing how best to deal with a young offender.

We have many concerns with the bill. However, as we have gone through the journey with this legislation, we have come to realize that we must focus on some key messages, and that unfortunately is at the expense of some issues we have with the legislation. We will emphasize a few key areas in order to make a strong point. We will discuss our view on how this can affect public confidence. We want to discuss the complexity in the proceedings and in the drafting. We will talk about the negative impact for victims that we perceive and our view on how offenders under the age of 12 can better be dealt with, and we will speak briefly about management of sentences. My role is to express concerns and provide advice on policy direction, not to provide technical advice on particular sections.

In terms of public confidence issues, in our view, the problems that first led to criticisms of the Young Offenders Act have not been cured by the YCJA, and, in fact, the public will become even more critical of the youth justice system if this bill is brought into force. The bill has been portrayed as providing a more effective balance between more effective accountability through community justice for lesser offences and more meaningful consequences for more serious and most violent offences. That was the characterization presented to Canadians. When we scratch behind that, we find at the serious end, the more violent offence end, we in fact have the opposite of the public pronouncements.

The proposed act provides for maximum youth sentence of three years in cases where an adult could receive a sentence for life. For a crime for which an adult would be liable to less than a life sentence, a youth could be sentenced for up to two years. Therefore, the two-year and three-year maximum penalties are the same penalties that currently exist in the Young Offenders Act.

Second, the YCJA further provides that the final one-third of a custody and supervision sentence is to be served in the community, under supervision. The result is that a three-year sentence means two years of custody followed by supervision for one year. The maximum period of custody that can be imposed under the act for these types of offences is therefore actually less than under the Young Offenders Act.

The effect of this change is simple. For a serious offence, such as sexual assault at knife point, the actual custody time available as a maximum sentence is reduced from two years to 16 months. The biggest public criticisms of the YOA are that the sentences the courts can impose are too short and that the youth justice system is far too lenient in dealing with the most serious violent crimes. Custody sentences should be increased for serious violent offenders, not reduced. As a result, the public must be concerned with this new legislation.

The sentencing provisions will undermine confidence in the court system because they do not afford adequate protection to the public from the most dangerous young offenders and they give a misleading impression of the length of the custodial sentence imposed. The point is that with the new legislation the release of many youths will be automatic without regard to whether they have sufficiently progressed in programming within the custodial institution and without regard to the risk they represent to the community on their return. This fact alone is unlikely to inspire confidence in the new act. For many Canadians, this will be the first they will hear of the new operation of our youth justice system. I submit that the indiscriminate and mandatory approach to release will serve to erode confidence of the public in the proposed statute.

There are new provisions that might be available for the retention of youth in custody until the end of sentences, but, in the view of the department, they are far too stringent and will result in few youths being held until the end of their sentences.

Similarly, the ability to go beyond two-thirds of the sentence for selective offences is too restrictive and, as a result, of little effect. An offender convicted of home invasion, for example, will serve, at most, two years in custody. That is the maximum youth sentence available in the YCJA. Practicably, this offender cannot be ordered to serve more custodial time.

The statutory release of young offenders after two-thirds of their sentences is completely arbitrary since it is not linked to the reduction of risk of the offender to the community.

Manitoba believes that the early release of an offender should be dependent on the behaviour of the offender while in custody, successful completion of programming, risk reduction strategies and the capacity of communities to reintegrate young offenders and manage their risk in the community.

One other concern Manitoba has regarding public confidence in the proposed legislation relates to changes made to the preamble and the statement of principles that either eliminate or reduce in importance the issue of protection and meaningful consequences for behaviour. These are significant issues that should be prominent in this legislation.

We recommend that the declaration of principles be modified to include denunciation of criminal behaviour as a clearly articulated principle. We say this with recognition of the background of this legislation, but it is our position that where an adult could be sentenced to life imprisonment the maximum youth sentence in the proposed legislation should be increased to five years less a day. That proposal is certainly much different from what is in the bill. As well, the mandatory release of offenders after two-thirds of their sentence is served should be removed.

On the drafting of the bill, the complexity of the proposed act is the first thing that strikes someone who attempts to read it. The complexity has two undesirable consequences. It will make the act exceedingly difficult to understand and it will create delay and court backlogs.

To give some examples, this bill would lengthen the act from the 70 sections in the Young Offenders Act to the 200 sections in this bill. It enlarges the legislation from 86 pages to 171 pages. Clause 42, with regard to sentencing, has 17 subclauses and 38 paragraphs. It refers to 89 other provisions of this bill and other statutes. It is nine pages in length. It is a rat's nest.

Professor James Robb of the Faculty of Law at the University of Alberta and a member of the National Judicial Training Institute recently met with a group of provincial and territorial officials to discuss the proposed legislation. Professor Robb advised that the National Judicial Training Institute views the YCJA as extremely complicated legislation that will take the courts two to five years to interpret. I suggest that is modest. This is exactly the opposite of what should be taking place as we move together to replace the YOA. The YCJA should be easily understood and should not require interpretation to be effectively used in addressing the issue of youth crime.

A close link in the mind of a young offender between wrongdoing and consequence is critical. That must be a fundamental objective and principle of the youth justice system, which should be reflected in the legislation. At a time when we should be simplifying the youth justice system and bringing home the message on a timely basis - and timeliness can sometimes be as important as the consequence itself - this legislation goes the other way. It creates something very complex and I am afraid that it will worsen youth court backlogs. It establishes an elaborate rat's nest of police warnings, referrals, Crown cautions and extrajudicial sanctions. Justice committees can be consulted to obtain information regarding the appropriate action, conferences can be called, and the offender is entitled to counsel throughout each process.

While the bill, in its present form, enables the production of rules that can govern the use of conferences that are not court ordered, there is no ability to manage its use in the judicial setting. The concept of conferencing is well understood in the youth justice system but, as conceived in the bill, will substantially add to delay. Further refinement of the concept is necessary and I stress that the concept of conferencing with regard to community justice, in itself, is supportable.

The bill introduces preliminary hearings to a significantly higher number of youth court proceedings. The result is to further complicate the youth court process by adding another round of litigation. The need for preliminary hearings in youth court is highly questionable in light of the increased disclosure obligations now placed on Crowns. Moreover, the fact is that the Young Offender Act and the Juvenile Delinquents Act operated for decades without any identified need for preliminary hearings. Consideration must also be given to the recent trend in adult court to limit the use of preliminary hearings. In fact, at the latest provincial-territorial meeting of ministers responsible for justice, we strongly asked for reconsideration by the federal government of eliminating preliminary inquiries entirely from the criminal justice system. We will have additional costs for legal aid, prosecutions and courts necessitated by the extension of the preliminary hearing. This has not been adequately taken into consideration.

The YCJA is written in a manner that makes it difficult to follow, and that is an understatement. Throughout the bill, terminology is difficult. The clauses are too long and there are too many clauses and subclauses. Some plain language principles were observed, but the efforts fall far short of producing legislation that can be understood by Canadians. Someone started writing and could not stop.

I think the act could be redrafted. It could be reduced in length by as much as one half with simpler wording, more meaningful cross-references and parenthetical notes. The whole bill reminds me of the words of Churchill, who said, "I sent you a three-page letter. If I had had more time, I would have sent you a one-page letter."

This legislation has been working its way through Parliament, but I do not think we have spent enough time to draft it in the way it should be drafted.

A key point is this: Victims have a lot at stake in having legal processes move along expeditiously so that they can get on with their lives. If the evidence is stronger, the cases can be stronger.

The YCJA contains many things that will result in significant delay, which is a disservice to victims. While the principles speak to victim treatment, minimum degree of inconvenience and respect for dignity and privacy, the bill, as currently structured, does not support those principles. Delay and increased court backlogs accompanied by multiple court appearances will be the norm, in our view.

I will deal now with offenders under the age of 12, an issue with which Manitoba has been very concerned. We are getting a better understanding in Manitoba of the number of criminal offences committed by children under 12, and it is not a relatively great number.

When there is such an occurrence, a referral to parents or child welfare authorities may deal with the problem. However, where a child under 12 is repeatedly involved in criminal offences or commits a serious offence, the public is frustrated to learn that the youth court system is powerless to do anything. The options available by way of court supervision are not in the criminal justice system.

A second concern is that a person less than 12 years of age who is accused of committing a serious offence has no mechanism to allow a full hearing of circumstances, to allow responsibility for the behaviour to be determined or for clearing of the name of the young person. The law, through due process, ought to grant young people and children the same due process safeguards as adults in this regard. I fear the day when a Canadian child under the age of 12 is accused of a murder, for example. The wrath of the nation will be significant. If that young person denies the crime, what mechanism is there to test that? What balances will be available?

It is not just a matter of consequences; it is also a matter of due process. We think that the proposed act should be amended to permit the prosecution of offenders under age 12, in exceptional circumstances, on an individual application basis by the Crown. The test of whether a charge could proceed would perhaps involve consideration of several factors. We propose that the nature of the offence or offences would be at the very high end of consideration. Other items that should be considered include the circumstances of the offender, including the history and maturity of the individual, whether it is in the long-term interests of the offender to have the matter dealt with through the courts, with due process in the interests of the accused, the truth of the matter and the interests of the accused.

I will speak briefly about management of sentences. With respect to the management of custodial sentences, various procedures are created to govern decisions with regard to the level of restraint to be imposed, early release, conditions to be imposed when release is granted, et cetera.

The complicated procedures result in a variety of problems and represent the most intrusive elements into areas of traditional provincial responsibility for the legislation. From our perspective, Ottawa should not manage a sentence imposed by the youth court in Manitoba. Manitoba is in the best position to manage youth sentences in a manner consistent with our unique social, demographic and cultural makeup and community values.

The bill should be amended by removing the need to establish different levels of custody and by simply sentencing a youth to custody, as in the adult system. The bill should be amended by removing the need to establish different levels of supervision in the community. The type of supervision should be left to those who assess the potential risk posed by the young person.

I would like to add one other point. There has been discussion and arguments from the education community about the availability of records. In circumstances where, clearly, there could be a risk to others in the school, or to educators, there should be reconsideration of that provision in the bill that is only enabling in terms of sharing of information.

To conclude, while Manitoba recognizes that the issue of financing the youth justice system and the potential date for the proclamation is outside the mandate of this committee and the Senate itself, we urge you to consider a couple of points. Funding of justice used to be on a 50:50 basis between the federal government and the provincial government. Over time, this cost sharing has changed to the point that each province carries most of the burden. The additional costs created by the YCJA for each jurisdiction are expected to rise significantly, and the federal government apparently has not considered this factor.

In Manitoba, we expect prosecution costs alone to rise by $750,000 a year. I have seen the line-by-line study of this prediction. Costs for legal aid, corrections and court costs are also expected to rise significantly. Until the inequity in cost sharing is resolved, this bill should not become law.

There is another reason to not push forward with the legislation at this time and for which we think that the legislation should be sent back. Recent world events have caused jurisdictions to re-examine our security arrangements. These issues are pressing and immediate. The replacement of a faulty youth justice system with another that will be more costly, more difficult to understand and implement, and with which all jurisdictions take issue, should be re-evaluated.

If the legislation proceeds, Manitoba requests that the Senate take the necessary further steps that it can to address the serious deficiencies identified in our submission concerning the YCJA. Manitoba recognizes the steps taken thus far and the changes made in Bill C-7 from the previous versions, Bill C-68 and Bill C-3. In fact, we like to think that we had a role in influencing movement of these issues.

Much more work must be done. We want to work with the federal government as a partner to ensure that the renewed youth justice system will be able to provide timely, effective and uncomplicated approaches for dealing with offending behaviour by young people.

These improvements are necessary to improve public confidence in our justice system, hold offenders accountable in meaningful ways and, very importantly, ensure that victims have a meaningful role in the resolution of criminal cases and to improve public safety. Reform is absolutely needed in the youth justice system, but please give us time to rework the issues to the satisfaction of the jurisdictions.

The Honourable Chris Axworthy, Minister of Justice and Attorney General of Saskatchewan: It is a pleasure to be here this evening with my colleague from Manitoba. If he finds the bill complicated, imagine how I find it.

We share many of the same concerns so I will try not to make duplicate comments. We come with support for the objectives of the legislation, but we have concerns on a number of fronts.

I have supplied the committee with copies of submissions made by the Deputy Minister of Justice of Saskatchewan in April 2001 to the House of Commons Standing Committee on Justice and Human Rights. As you will recall, the committee would not let ministers attend the committee, so deputy ministers attended. Those submissions are available to you. They are much longer than my comments.

I will start with the implications for the administration of justice in Saskatchewan, following on from a point that Mr. Mackintosh made.

There is need for the federal government to provide sufficient time and resources for the provinces to be ready to implement the bill. It is not possible to do a whole lot until the bill is finalized in terms of implementation. Obviously, we can do some things, but it will take time - we think a year - to be ready to implement the legislation and to develop extensive training plans across various sectors including police, youth workers, Legal Aid, court staff, community-based organizations delivering youth services, aboriginal court workers, educators and health providers. All will need specific training in the new legislation.

In some cases, perhaps in all cases, these justice partners must unlearn the processes that they have been familiar with under the Young Offenders Act and replace that knowledge with knowledge of the more complex processes of the new act. There will also be a need to develop and implement various program and operational changes. That means expanding our various alternative measures, extrajudicial sanction programs and a number of other provisions.

We must upgrade our information services. Ours are not in very good shape and will probably cost around $10 million to fix.

We will have to amend provincial legislation such as our Child and Family Services Act to accommodate changes, not only in terminology but also to the approach contained in Bill C-7. All those things will take time to ensure orderly implementation of the proposed legislation, and, something that is of particular interest to us, to increase public confidence that this piece of legislation will respond more effectively to the issues of youth committing crime. Our view is that if implementation is hurried, credibility, in the minds of the public, will be damaged.

Along with other jurisdictions, and echoing what Mr. Mackintosh said, we continue to be concerned about the cost of implementing this bill and the lack of adequate federal funding. Provincial politicians always moan about money when they come to Ottawa, but this is a serious issue. It is a serious problem when the federal government implements changes without responding much to our concerns and anticipates that we will have significant sums of money available to do our bit in that implementation. There has been money made available, but in all areas the funding offered by the federal government is inadequate to meet the real demand. For example, $9 million has been earmarked for systems development. For this, the provinces and territories estimate a total cost in the range of $40 million.

In regard to implementation costs, we anticipate the changes to cost in the range of $12 million in one-time costs and approximately $11 million in annual operating costs. If the changes are implemented too quickly, it will cost more because of the need to more quickly respond to training and systems costs. These are relatively significant costs for us. We ask whether this is the most effective way of spending money in this area.

Aboriginal youth are overrepresented as youth victims and offenders in the Saskatchewan justice system, as in the West, Northern Ontario and many other parts of the country. This is an area where federal funding should be provided, bearing in mind the federal government's constitutional responsibility for Aboriginal people.

We have significant concern about the impact of implementation on the public in general and the public's view of not only criminal law, but of youth criminal law in particular.

Our charges involve around 6,000 youths every year in Saskatchewan. Our guess is that the cost of implementation is about $4,000 per young offender. We ask rhetorically whether this is the best way to support youth in conflict with the law. Before we move forward in comprehensive ways, we should have a cost benefit analysis of what we are doing. Will this be the most beneficial use of limited resources across the country if we move in this direction?

We agree with the basic principles and directions set out in the bill. We think they could have been achieved under the Young Offenders Act with adequate resources and will. Quebec is rightly seen as model for that kind of reform. To a large extent, we followed Quebec's approach when we introduced our youth services response in the spring of 2000.

By focusing on legislative reform rather than enhanced program funding, it seems that the federal government is using the wrong tool to promote meaningful change. Provincial and territorial jurisdictions will be forced to divert scarce resources to meet implementation rather than programming needs. That skews our priorities because we are forced to do things we would otherwise choose not to do. It is sometimes useful to be skewed in that way because public opinion is not the most tolerant and visionary in this context. Plainly, it moves us in directions that we would not necessarily choose.

We did ask for amendments to the Young Offenders Act and there has been some response to that. In particular, we were concerned with dealing more effectively with serious, violent and chronic offending youth who make up maybe 12 per cent or 13 per cent of all young offenders. Some of these proposed amendments are in the bill, such as the potential to reduce the presumptive age to be subject to an adult sentence from the current 16 to 14. We accept the age of 14.

We must carefully examine changes that could be made to reduce the complexity, increase the clarity and do no more than is required to provide a framework for an effective youth justice system. The bill is incredibly complicated and bureaucratic. We wonder if it goes too far in that regard. It would be useful to simplify concepts and processes. We would be better off to make it simpler, in particular as the proposed legislation affects the public. The public finds it hard to understand that we have done what it want us to do, and that is multiplied when people cannot understand what we are doing that we cannot explain effectively to them.

As an example, clause 19 is a new process that allows judges and others to convene a conference at any time during the court process for the purpose of making any decision, under the proposed act. There is no clear criteria as to when these conferences will be called, or why, or how the costs of the conference time, travel, et cetera, will be dealt with. There is no ability on behalf of the province to control the use of conferences by judges or justices of the peace. There is the potential to deal with these costs with regard to other actors in the justice system, but none with regard to judges or justices of the peace. Therefore, it is not hard to imagine a judge who could make extensive use of clause 19 and generate significant costs on the province.

It is not clear to us what the purpose would be. There does not seem to be a judicial function for these conferences. Judges can already obtain assessments, predisposition reports, sentencing circles and so on. It is hard to see what extra benefit this will generate. Proclamation of this clause could add to the confusion of implementing the bill and we would prefer it be deleted or have proclamation delayed.

There is a significant lack of clarity and a real potential for confusion and loss of public confidence as a result of the bill's use of categories such as "non-violent," "violent" and "serious violent offences." Not all offences fit easily into those categories. Where does a drug dealer, a pimp or drunk driver fit into these categories? What confusion or inconsistency will these terms generate?

Confusion and inconsistency do not lead to an increase in public confidence and public support for the legislation. Naturally, more confusion leads to more cost, in terms of litigation appeals and so on.

One of our primary requests for reform, early on, was recognition in the legislation that the primary purpose of youth criminal justice was for public protection. Bill C-3, the predecessor to Bill C-7, went part way to addressing that concern by stating that the principle goal of the youth criminal justice system is to protect the public. Bill C-7 does not do that. Indeed, Bill C-7 talks about long-term public protection as flowing from the preventive rehabilitation of youth.

Attorneys general have difficulty dealing with that issue. The public does not see the rehabilitation aspect in anything like the way more tolerant and progressive people do. Our goal often is to maintain a balance between the public's clamour for protection and useful interventions on the part of youth. We feel strongly that, unless there is a greater emphasis on the purpose of this legislation being for the protection of the public, the public will find it more difficult to provide support for the kinds of interventions that form the basis of this legislation.

I will not speak for Mr. Mackintosh, but public support for useful measures in criminal justice is very hard to come by. If you do not provide a clear indication that protection of the public is an important goal, support is even more difficult to come by.

In other areas, it seems that balance in the bill is not terrific either. The sentencing principles, for example, avoid any reference to denunciation and deterrence. We would not want to overemphasize the denunciation and deterrence elements of sentencing and punishment in general. It is relatively clear that they may have less impact on youth than on adults, but even the Supreme Court has recognized their importance in youth sentencing. Yet there is no reference to those elements in this bill. I think the public will find that hard to accept.

Similarly, the public will find it hard to accept the presumptive release for the final one-third of a custodial sentence. Under this legislation, youths will be sent back to the community with one-third of their sentences left to be served, no matter whether the individual is well behaved or responsive to programming or whether there is any risk of re-offending. None of those things will have much impact on whether the young offender is released into the community for the last third of the sentence.

The issue of the kinds of offences that youth might be expected to commit is also seemingly not relevant. The public, as we all know, deals not very well with repeat car thefts, repeat criminal harassment, drug dealing and other things. Those activities might be expected from a young offender who is about to be released into the community, but the person will be released anyway. That does not serve to respond to the public's concerns about its own safety and security. Neither does it really say very much about how effectively a young person might be rehabilitated and reintegrated into the community.

The last set of witnesses mentioned the extent to which this piece of legislation intrudes into provincial jurisdiction. That is one of the themes of Quebec's case. The bill does plainly interfere with provincial child protection priorities and with the administration of youth justice constitutional responsibilities.

Let me give one example. Clause 35 allows a court to refer a matter for a child welfare assessment. There are no criteria set for that referral. There is no clear judicial purpose for such a referral. There is no attempt to consider the parameters of provincial child welfare legislation. There is no clear limitation for such referral to official child welfare authorities; the referral could be to anyone that the judge deems appropriate. In our view, that may be inappropriate and may lead to inappropriate demands on provincial resources.

This referral does not seem to be necessary. Most jurisdictions have provisions requiring the reporting of any child suspected to be in need of child protection. It would not seem necessary to have a judge also refer for that purpose. All ministers of justice, provincial and territorial, and all ministers of child welfare have asked that this clause not be proclaimed. There is fairly significant intrusion into provincial jurisdiction.

We support the general direction of the bill, but we think the legislation is not very clear. It is complex; it lacks clarity and balance. There is a risk, in this reform, of further losing public confidence in the existing law. No reform will be effective if not supported by adequate federal resources.

This bill fails to achieve an appropriate balance between the needs of youth, on one hand, and public protection, on the other. It interferes with the ability of provinces to effectively administer youth justice. It generates significant new costs and new processes. If it required implementation right away, it would not provide adequate implementation time.

The Chairman: Thank you very much, Mr. Axworthy.

Senator Joyal: Mr. Axworthy alluded, as did Mr. Mackintosh, to the federal intrusion into provincial jurisdiction. This is a fundamental issue. How do we strike a balance in a system defined by a federal statute but implemented by provincial governments under their constitutional responsibilities?

I asked the previous witness if there was an intention on the part of Ontario to seek the status of intervenor in the Quebec reference. It seems there is a shared appreciation of that element of the bill. Is it your intention to carry your view to the Court of Appeal of Quebec so that the ruling would be more acceptable, having had input from other provinces?

Mr. Axworthy: I could probably answer that question tomorrow. We have not really considered that question yet. It is likely that some of our concerns will be not exactly the same as Quebec's. It certainly makes sense to consider that option carefully. I lean in favour of that action at the moment, but I have not fully considered intervention yet.

This is an important issue for us because, as I said, the intrusion really threatens to skew our priorities. It does not necessarily skew our priorities, but it does not allow us to decide what is best for the young people in our province. There is a significant likelihood of provinces intervening.

Senator Joyal: The other opportunity would be to formally write to the Attorney General of Quebec to ensure that your concern is raised in the Quebec factum. It would be put before the court, which would then make the ruling. We would have a better chance of getting that through the court. In the process, if it goes to the final adjudication, there would at least be a pronouncement on your point. Is it possible for Mr. Mackintosh to comment on that?

Mr. Mackintosh: It is very unusual for Manitoba to intervene in challenges at the appellate level. To provide support in this circumstance would be guided by the particular consideration that the interference has been in what has been a provincial jurisdiction, the area of management of sentences. It is not in the area of law itself, or the bill, it is with regard to one particular area.

Along with Mr. Axworthy, I can say that we have not had a consideration at my desk about getting involved in that challenge. However, we could consider it when we go back, and we could ask constitutional law for advice. It would have to be kept in mind that our concern is narrow: The issue of the management of sentences.

Senator Joyal: My next question is about the status of Aboriginal youth. We have previously had representatives from Saskatchewan groups involved in alternative measures and, of course, assisting rehabilitation processes. We have also had before us representatives of the legal profession raising concerns about Aboriginal youth. We are well aware of overrepresentation of the Aboriginal in the youth justice system, with which I am sure you are familiar.

You have mentioned in your brief, and Mr. Mackintosh has mentioned as well, that there is nothing in the bill that specifically covers what the Supreme Court has defined as considerations that should be present in the sentencing of Aboriginal people. As you are well aware, sometimes the prison or the penitentiary is not the best school of rehabilitation. Often, it is better to have communities deal with those youths, provided there is a minimum of assistance involved.

Could each of you elaborate on this, because you mention it in passing but not in a substantive way, taking into account that this is a major social issue in both your provinces?

Mr. Mackintosh: In Manitoba we have a very practical report that contains recommendations that will be helpful to move ahead to deal with challenges in the area of Aboriginal justice. The report is called the Aboriginal Justice Implementation Commission. We are now putting together our formal response to those recommendations.

Aboriginal justice, by and large, means greater community justice and more community control, whether that be policing and community justice to provide consequences or sanctions, providing greater victim satisfaction, providing probation on a local basis or even providing bail supervision locally. The more emphasis that the criminal justice system can put on enhancing community justice, the stronger the message is to the offender that someone has been harmed and he or she must right the wrong. The justice system has to provide stronger messages, and the stronger message comes when victims and survivors are present to express the harm - when they want that. It is their right not to have anything to do with an offender.

It is important that an offender look into the whites of the eyes of a community member who has been hurt. When there is that "making up and facing up" an important delivery of justice occurs. In that way, we will reduce criminal involvement.

That is why I am attracted to the development of Aboriginal justice because, quite frankly, it is about public safety and better messages. Better messages are local, victim and community messages. The best way to reduce incarceration of Aboriginal peoples is to allow them to practice what they say can be more effective justice. By and large, that will be, as we move ahead, for lesser offences. Nip the problem in the bud and provide strong messages right at the beginning.

That is my opinion and my sense of how we can reduce the alarming statistics of overrepresentation of Aboriginal people in our correctional facilities. If you want to lower the sentence population, you lower the crime rate. You lower the crime rate by having a more effective justice system.

Senator Joyal: Would it be possible, Madam Chair, to obtain the report that the minister is alluding to on criminal justice for Aboriginal people?

Mr. Mackintosh: We would be proud and pleased to provide that to you as soon as possible. There are many recommendations that specifically deal with youth justice.

The Chairman: Thank you. When we receive that report, we will distribute it to the members of the committee.

Mr. Axworthy: Senator Joyal, you have actually hit on the essential focus for a province such as Saskatchewan. We have the highest crime statistics of any province. We have now begun to say quite openly that the reason for that is our inability to engage socially marginalized individuals, most of which are Aboriginal people. The issue for us is to recognize that. That requires us to work on many different levels, and the justice system is merely one level.

We, in the justice system, will not solve this problem. It has to be solved as a result of ensuring that people who are socially marginalized move into the mainstream of society. As you can imagine, it is not a simple task, but it is our primary focus.

The point I raised in my submission was relatively narrow. I raised it yesterday with Mr. Nault, and, in fact, we raise the point each time we come to Ottawa: Jurisdiction for off-reserve First Nations and Métis people. It is not that all of that crime is committed off-reserve, but much of it is.

It is our view, and it remains our view, that no matter where an offence is committed, on or off the reserve, it is, in large measure, the responsibility of the federal government to help us resolve it. We do not anticipate the federal government to bear all of the responsibility, but we certainly anticipate a more effective partnership than currently exists. There is the financial issue, which enables us to provide better or worse responses to individuals based upon the resources we have available to us.

In provinces like ours, people who live in First Nations communities move around a lot. They come into the city, go back to the community and go to other communities. While there might be a border on a map, there is no significant social border that says, in any commonsense way, this person should be the federal government's responsibility, or this person should be the provincial government's responsibility. It is a problem we have to resolve. We sometimes talk about putting our constitutional swords down and getting on to the solutions. In the context of youth justice, that working together requirement is not effective because there are not the resources to do what is being proposed, and, in terms of Aboriginal people, there is an added constitutional point to make with regard to funding. That is our main concern there.

Senator Andreychuk: You were a member of Parliament for a number of years, Mr. Axworthy, and you will recall that the Young Offenders Act had a hard time. Many comments addressed the need to exchange the Juvenile Delinquent Act for the Young Offenders Act because of the high cost to retrain and get the system going when the money would be spent on those things instead of on youth. Sure enough, that is exactly what happened, and the act fell into disrepute.

When it fell into disrepute the noise was heard on Parliament Hill. The detractors from the youth justice system at that time said, "Toughen the act." Much of this came from the West. After that, there was a feeling of what I call the other part, from the West and elsewhere, that the rehabilitation model was still important. This bill seems to have tried to put everything together as an answer. You have pointed out graphically that it will cost a great amount to just manage the system as opposed to working with youth. The minister said that nine of ten provinces were in favour of the bill.

I understand why you would want to have a working good relationship with the minister and to continue that relationship. However, it seems to me that the minister has not got a clear message from the provinces. The government may have got the message from the opposition members in the House of Commons, but not from the provinces, that we are really not serving youth well if we go through the exercise again if the resources are not there. The provinces do not have the resources and the federal government will probably not have the kind of money.

Is it not time for the federal government to negotiate with the provinces on a more co-operative model? To deal with your statistics, with respect to the 6,000 young offenders in Saskatchewan, it will cost $4,000 per person to maintain a system without helping the young offenders at all. Would it not be better to take that money to develop community resources for our Aboriginal youth co-operatively? What are we doing here?

Mr. Axworthy: That is a very good question. It would be nice to be able to sit down with the federal Minister of Justice, discuss these things fully and have her appreciate the concerns that exist across the country. There is not a province that would not say privately that it would be nice to focus on the rehabilitation side to reduce crime, improve people's sense of security in their communities, generate a system of justice more respected by those who are most in contact with it, and actually improve people's lives.

There is no doubt that in the West we have difficulty balancing the call for being tough on crime and criminals and being tough on the causes of crime. It is not entirely clear that poverty, social and family dysfunction are causes of crime because not everyone who experiences those things is a criminal. However, there is higher incidence of crime in less functioning individuals and communities.

The examples of alternative measures that we have all experienced are cheaper. They involve a fairly large number of people. They enable the province to decide with the communities how best to address offending, and they generate much better results. Focusing on doing that would be a much more efficient use of money and would generate better results.

I actually attended an alternative measures case that was almost a sentencing circle. It cost approximately $900. For that young person to go to court, when all the costs are added in, would have been something approaching ten times that. That person is now, for various reasons, on the straight and narrow, functioning and contributing to society. Going before a judge might not have generated that.

I will make another point. We now have a Cree-speaking court in Northern Saskatchewan, with a Cree-speaking judge, court officials and prosecutors. This is not a cheap process. Even though it has only been in place a short time, it has received significant support from the communities. The court received a standing ovation in one community. I do not suppose when Senator Andreychuk was a judge she got a standing ovation.

Senator Andreychuk: I did get a thank you once.

Mr. Axworthy: Communities are saying, "This is now an issue of the court and us against crime. Before, it was us against the court and against criminals." A measure which implements change makes your point much more useful than the significant implementation costs to implement what is being proposed here. We would rather get on and do things than prepare to spend money we might not have in the future.

Mr. Mackintosh: It was an excellent question because when one considers, for example, the added costs for prosecutors of $750,000 on an annual basis - a large part of which is due to the introduction of preliminary inquiries into the youth justice system - aside from the broad social economic challenges, and how improving opportunities and hope for young people can make a difference, just with targeted programming we can make a difference. We know what the risk factors are for youth involvement in the criminal justice system.

In Manitoba, we have introduced a program called Lighthouses and we now have 21 sites for school use after hours. We have invested in this great infrastructure of public schools and we cannot afford to have lights going out. Many schools do not have lights going out, but some do - disproportionately in neighbourhoods where there are the greatest conglomerations of risk factors. Sometimes keeping kids busy in the prime crime time between 3:30 p.m. and 6:30 p.m. can make a great deal of difference. We all have to recognize that the justice system is a clean-up system, and if we could have that $750,000 going to lighthouses or stay-in-school programs, recognizing there is a big correlation between dropping out of school and criminal involvement, we will have done ourselves a great service, as Canadians, rather than spending it on prosecutors to have more preliminary inquiries.

Senator Andreychuk: The new bill puts extrajudicial measures in, whereas the current act has alternative measures. The alternative measures, under the Young Offenders Act, were to keep youth out of the court system, to divert them. These extrajudicial measures are rather elaborate, putting an onus on the police and the courts to go through a process that has to be documented. I foresee a bureaucracy. These young people will have to go through admissions, so there will be lawyers. At the end of day, if the process is not successful, he or she may reoffend. What is your view on extrajudicial measures as opposed to the alternate measures in the Young Offenders Act?

Mr. Axworthy: It is important to do as much as we possibly can before a person gets charged, and before he or she gets picked up by the police. That is where we should focus our efforts.

Many of the alternative measures take place prior to charging. We have to persuade our prosecutors to undertake more of that. You remove a specific problem that charged young offenders have, which is a criminal record, so that when they apply for jobs they are not turned down and left with few other devices. We are much better off if we focus on things we can do ahead of time.

I will make a comment not related to this question. We actually spend most of our time putting sick people into facilities whose sickness is acted out in activity we call criminal. I think you can understand that is not a very productive process. I do not mean just sick in terms of fetal alcohol syndrome, which leads to people not being able to understand the difference between right and wrong and the consequences of actions or of rules being broken.

Our whole system is based on that. That is one type of sick person we put in an institution and criminalize. Others are those who are abused sexually or physically. You know the percentage of young people in institutions who have been sexually and physically abused. Are they criminals? They commit acts that we call criminal. It is worth remembering that not all countries that are liberal democracies call these things criminals act, but, in any case, we do, and then we criminalize them. This piece of proposed legislation will not help us one bit in addressing that concern. In fact, it seems to me it will take us on a course that will not enable us to address that fundamental problem with our system.

That does not mean that such people do not do wrong things. It is just that there are often medical reasons why they do those things.

Senator Andreychuk: Could I have your comment on the fact that this bill creates a system that is very complex? One of the reasons given as to why it is so complex is that we are dealing with a less mature person than an adult. Others have said that this actually replicates, within a juvenile system, a more adult-like system. What is your opinion?

Mr. Mackintosh: Bringing preliminary inquiries, for example, into the youth justice system has brought in a questionable, outdated process. It is time to simplify the process, as I said earlier. The community justice options in the legislation are overly formalized, risking community justice itself. Community justice has to be allowed to grow and flourish and develop with local flavour and local traditions. There should be standards, and those can be provided, but they do not have to be in legislation. That touches, in part, what you were addressing. It is the wrong direction, overall.

Mr. Axworthy: That is right. I believe, though, that there are times and young people for whom we need serious measures. It is important to have an adult-like system for persistent offenders who seem to be unconcerned about the anti-social activities they carry on. The public demands that we deal firmly with young people who show no respect for themselves or for anyone else.

That being said, that is not the vast majority of young people. Neither is it the way in which most of us would deal with challenges we face within our families or among the people with whom we deal. If it is possible to negotiate with someone, we tend to do that.

To get back to Senator Joyal's point, this is particularly important when dealing with Aboriginal people, who constitute the largest community at risk. They do not consider a justice system that blames someone as relevant. It is not within their cultural context. However, we focus on blaming people. We find them guilty and we punish them. That is not the way Aboriginal justice works.

We have a large representation of Aboriginal people in our facilities. We should also remember that we have a large number of Aboriginal people who are victimized, because the numbers are very similar. A population that perhaps cares less about Aboriginal criminals should care about Aboriginal victims.

We actually have much to learn from the way in which Aboriginal peoples pursue justice. There is nothing in the bill that indicates we are learning anything from a people who say, "Let us heal the person; let us heal the community, and let us make progress and develop something positive out of an anti-social act."

We should do that instead of constantly reinforcing a system of justice that is simply alien. It is clear that an alien system of justice will never work. It will never be accepted and will never function in the way we want it to function. In other words, it will reduce neither criminal nor anti-social behaviour. That is absolutely evident in small Aboriginal communities.

The Chairman: Thank you very much, gentlemen, for coming from so far and staying so late to help us with our deliberations. We greatly appreciate your time. You can be sure that your remarks will be passed on to other members of the committee who were unable to be here.

At this point, we will continue in camera.