Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10, Evidence - May 14, 2014
OTTAWA, Wednesday, May 14, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-394, An Act to amend the Criminal code and the National Defence Act (criminal organization recruitment), met this day, at 4:18 p.m., to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we are continuing our study on Bill C-394, An Act to amend the Criminal Code and the National Defence Act (criminal organization recruitment). This bill amends the Criminal Code to make it an offence to recruit, solicit, encourage, coerce or invite a person to join a criminal organization. It establishes a penalty for that offence and a more severe penalty for the recruitment of persons who are under 18 years of age. This is our second meeting on Bill C-394.
Our first witness today is appearing by video conference from Winnipeg, Manitoba. This is not his first appearance before the committee, and we appreciate his willingness to make a contribution to our deliberations. Please welcome the Honourable Andrew Swan, M.L.A., Minister of Justice and Attorney General for the Province of Manitoba. Welcome, minister. We will begin with your opening statement. The floor is yours.
Hon. Andrew Swan, M.L.A., Minister of Justice and Attorney General, Government of Manitoba: I want to thank you for the opportunity to present to the committee this afternoon. Greetings from the Woodsworth Building in downtown Winnipeg close to the Manitoba legislature.
It is a pleasure to speak to you about Bill C-394. In a nutshell, Manitoba supports Bill C-394. We do believe that it could be made even better and even more effective by a couple of, we think, rather minor amendments that I will speak to in my presentation.
In my time today, I would like to give you a bit of background from Manitoba's perspective, recommend these two amendments and then, of course, try to respond to questions that senators may have.
We did send over a written submission. I'm hoping that has made it into your hands. I won't read through it word for word, but I'm hoping it will be useful to the committee in following along.
I'm very pleased to hear that George VanMackelbergh, Vice-President of the Winnipeg Police Association, will also be presenting to the committee on this bill. We attended together before a House of Commons committee, and I think it's very helpful to have not just the Attorney General's perspective but also a police perspective on some of the challenges of protecting our young people.
I'm joined here in Winnipeg by Donna Miller, my Deputy Minister of Justice; Glen Lewis, the Executive Director of Policing Services and Public Safety; and Heather Wilde, my special assistant. If you do have difficult questions, I may be whispering off camera to get some additional support.
Put simply, we are very interested in doing everything we can to create a hostile environment for organized crime and gangs. We know how much damage is done to our communities, and we know how much chaos is caused by organized crime. At the same time, we want to do everything we can to build a safe environment for our citizens, especially our youngest citizens, who we know can be at risk for becoming involved in gang activity.
Organized crime operates everywhere in Canada. It disrupts the peaceful, safe and secure society that we work hard to achieve and enjoy. Criminal organizations engage in a wide range of illegal activities that victimize citizens, take on our positive social structures and indeed threaten the stability of our communities. We know that organized crime and gangs are very involved in destructive activities, such as prostitution and drug trafficking. We know that they use weapons, violence and intimidation to accomplish their goals. We also know that organized crime and gangs depend on a constant intake of young people to be able to carry on their illegal and damaging activities.
In Manitoba, we believe the best way of trying to take this on is a balanced approach of prevention, intervention, suppression and increased consequences to address organized crime. I've spoken before on Manitoba's prevention initiatives. We're very proud of things like Lighthouses, which is a youth crime prevention program that now provides 71 safe locations for children and youth to meet and engage in positive activities. We have Neighbourhoods Alive! which is a community development program that assists some of the more challenged communities in Manitoba to use local expertise and local knowledge to help build stronger communities. We have many other supports and programs that we have put in place to try to prevent things from happening in the first place.
We also believe in intervention. When young people become involved in illegal activities, we know there's a benefit to trying to change their pattern, to not have their behaviour escalate. We have the Turnabout program that works with children under 12. As you know, children under 12 cannot be charged with a criminal offence, but we don't believe that the state's obligation should end there. We work with families or guardians and the children to try to make changes in those young people's lives because if we don't, we know they will return to the criminal justice system as they get older.
We believe strongly and we invest in intensive supervision for repeat offenders and targeted intensive supervision of some of the most challenging offenders, such as chronic auto thieves. We have other programs, some run by Aboriginal agencies, to try to provide specific programming to help people because we think these are all the right things to do.
We also invest heavily in suppression. Our government continues to provide funding for more police and Crown attorneys. We provide more resources for close monitoring of adult gang members who are under court-ordered supervision by street crime police officers and corrections staff. We support integrated police units among the Winnipeg Police Association, the Brandon Police Service and the RCMP to disrupt organized crime in Manitoba, and I can tell you that those efforts have been greatly successful, but we know there's always more to do.
Manitoba is also a leader in the use of civil law measures to create new avenues to respond to organized crime. Things like the Safer Communities and Neighbourhoods Act have made huge differences in communities, including the community that I represent, the inner city west end of Winnipeg.
I can also tell you that Manitoba achieved another key milestone in the fight against organized crime just on February 21 of this year, when Manitoba became the first jurisdiction in North America to establish as a matter of law that the Hells Angels Motorcycle Club is a criminal organization in provincial proceedings. Manitoba created a schedule of criminal organizations under the Manitoba Evidence Act to eliminate the need for Crown attorneys to prove over and over again in provincial proceedings that a particular group is a criminal organization, and we believe that will help us take on the Hells Angels, and as we go forward, other serious criminal organizations that create so much harm.
We've sought increased consequences from the federal government to implement various initiatives. We're very pleased the federal government has moved on a number of those proposals. There are more proposals yet to go, but we're certainly pleased that the House of Commons has listened to us in Bill C-394, although we do have some ideas of where else we could go.
I can tell you that all of our federal law reforms on organized crime were the product of extensive research and consultation completed by our Organized Crime Initiative, or OCI. Senior provincial justice staff, an advisory committee of police, prosecutors, corrections, constitutional and civil law experts all came together. We consulted more than 120 people on their best practices on how we can take on organized crime, and I'm pleased to tell you that since 2006, the federal government has moved on a number of these items. We've worked with other provinces and territories as well as the federal government to continue to make Canada as hostile a place as possible for organized crime.
Included in our proposals was the recommendation that recruitment into a gang be specifically criminalized. Criminal organizations pose a great threat to the safety and security of Canadian communities. As I've already said, one of the ways that gangs grow in numbers is through the recruitment of youth. Youth form a large market for drug trafficking and activity that frequently forms a major part of the business and the revenue stream for criminal organizations across Canada.
Senators will know the range of penalties under the Youth Criminal Justice Act is relatively minor when compared to adult penalties. Criminal organizations are well aware of the YCJA. Some young people are recruited even before they reach the age of 12, an age at which gangs know they can't be charged with criminal offences at all.
We know young people can be easily manipulated. A gang can become, as dysfunctional as it seems, the best form of belonging for young people if we don't provide resources for them in the community. Youth may see companionship, protection, respect and money as incentives to join a gang. Coercion and force are also used to bring youth into gangs, and once they're in, to retain them within the criminal organization.
There are existing Criminal Code provisions intended to address gang recruitment. In speaking with police officers and Crown attorneys, I think it's fair to say the existing provisions are a blunt instrument that doesn't really speak to actions to entice or coerce a person to join a criminal organization. The more targeted provisions of Bill C-394 are greatly welcomed.
We're pleased to see that this bill is consistent with the thrust of our gang recruitment law that we proposed by creating a new indictable Criminal Code offence to prohibit recruiting or encouraging a person to join a criminal organization. We're pleased the new offence will be punishable by a maximum of five years imprisonment and guaranteed consequences, a mandatory minimum penalty of six months if the person recruited is a youth under the age of 18. I would also amend the National Defence Act by including a reference to the new recruitment offence.
The bill will be stronger, though, I must say, if it contains certain other key provisions that have been identified by Manitoba to help target the known dynamics of gang recruitment. The new offence provides for minimum punishment where the person being recruited is less than 18 years of age. This is consistent with Manitoba's gang recruitment proposal. We do believe we could go a step further, though, and extend the provision to the physical location where recruitment occurs.
We believe the amendment should deal with criminal organizations that recruit members in areas where they know children and youth congregate. I believe Boys and Girls Clubs will be presenting to you later today or tomorrow. They are a great example of an organization providing a safe haven for children and a good place for young people to go. Unfortunately, criminal organizations and gangs know where those places are as well, and when a gang targets a place like that and tries to coerce youth who are heading into or out of programming or a drop-in, we believe that should be covered by legislation and attract those guaranteed consequences.
We believe the recruitment in locations where youth are known to gather must attract more serious consequences.
We also believe that Bill C-394 could be amended and become stronger by addressing the use of coercion or force to prevent someone from leaving a criminal organization. As with recruitment, this type of coercion and violence seeks to ensure the longevity and stability of criminal organizations, objectives that we say must be countered as part of any legal response to organized crime in Canada.
There are too many examples of gangs that use force to prevent people from leaving the organization, and the criminal law needs to address the reality. I'm sure that George VanMackelbergh from the Winnipeg Police Association will tell you because I know he's heard from young people, and I've heard from young people and we've heard from youth organizations that gang life, which may look attractive to young people, may grow thin rather quickly. Young people who indoctrinate into gangs find out that the promises of money, opportunity and safety are not the realities of gang life.
Many times, young people tell us that they realize they're putting themselves at risk, they're putting their families at risk, they know they're damaging their communities and they are putting their friendships at risk. We know it's very difficult for young people to leave gangs.
Although we think it's the right thing to do in Bill C-394 to increase penalties and have mandatory minimum penalties for indoctrinating people into gangs, we think it's equally reprehensible where a young person who wants to get out of the gang and return to the rest of us in society can be threatened without there being a similar penalty. So we do believe that would be a change that would be appropriate for Bill C-394. We believe it would strengthen the bill and help agencies in Manitoba and elsewhere across the country do a better job to be able to rescue youth and give them comfort that there will be protections in law if anybody tries to prevent them from leaving the organization.
In conclusion, criminal organizations do operate across Canada. We know they operate in Manitoba. We know they engage in illegal and harmful enterprises that affect our citizens and communities. We know that the threat gangs pose to the safety of our society would be reduced if Bill C-394 was passed and also enhanced. We know that youth are particularly vulnerable, and I can speak on that if you have questions about the realities in Manitoba. We believe that strong laws must be in place to ensure the safety and security of Canadian citizens, especially our youth.
The bill is good. It's in your hands, I would say, to make it better. We urge members of the Senate to protect our youth by passing Bill C-394 with these very important amendments.
Mr. Chair, I'm pleased to try to respond to questions your committee may have.
The Chair: Thank you, minister.
Senator Baker: Thank you. Welcome again, minister, to this committee. I must congratulate you on your proactive measures.
You appeared before the House of Commons Justice Committee. When you gave your presentation before the House of Commons Justice Committee, you recommended that the word "coercion" be placed in the bill, into the section of the bill that is new, section 467.111? You made the same argument about coercion as far as young people are concerned.
The House of Commons committee dealt with that. A government member proposed an amendment, and an NDP member seconded the motion. I'll quote from their committee report, where they say:
. . . we're aware of what Minister Swan told us.
I think he opened up a window in terms of also considering the coercion used to keep young people in the gang. The matter of coercion is not included in the bill.
Then the committee moved an amendment to the bill to include the word "coercion."
My question to you, though, is this: The word "coerces" is not put into the section that deals with those under the age of 18. It is put into the introductory paragraph to that subparagraph. You have "recruits, solicits, encourages, coerces or invites a person" and then you go down to (a) where it says, "in the case where the person recruited, solicited, encouraged or invited is under 18 years of age," and then it goes on to the mandatory minimum.
The committee took your advice on coercion, made an issue of it, and I congratulate you on that. But it appears to me on a plain reading of what the committee has done, they put the word "coercion" in the section not dealing with those under the age of 18. I don't know if the deputy minister has any comments to make about this. It was the intent of the House of Commons committee to do exactly what you requested, to put "coercion" in the bill, which they did. The way it reads now, somebody who would get the mandatory minimum for the person under the age of 18 cannot be prosecuted if they coerced the young person.
Do you have any comment about that, given that it was the intention of the House of Commons committee to do what you requested, but it appears as if they have not done so?
Mr. Swan: Thank you, Senator Baker, for pointing that out. I see exactly the point you are raising. I did not know. I'm pleased to see that the word "coerces" was added to the preamble to section 467.111. It would seem to me to make sense that that word also be imported into (a), which talks about the involvement of those under 18. That would certainly be a strong recommendation for this committee to make.
I do, of course, point out that all of those terms deal with trying to get a young person to join the criminal organization, and we believe the bill would be strengthened by going further to say not just to join the criminal organization but to join or to remain in the criminal organization. That would really strengthen the bill.
The point you raised, that the word "coerces" should also be added to (a), makes perfect sense.
Senator Baker: So you've gotten halfway there with your recommendation. It's indeed unfortunate, Mr. Chairman, that an error was made because the intent of the committee was to apply it to young people under the age of 18. That was their obvious intent, and unfortunately they put it in the wrong section. I don't know if legally — we have an expert here from the Department of Justice as to the consequences of that. Anyway, we'll leave it at that.
I'm out of time, minister, but again, I've congratulated you before on your initiatives; just keep up the good work.
Mr. Swan: Thank you, senator.
Senator Plett: Thank you, and welcome, minister. It's always a pleasure for me when you and I can be on the same side of an issue, and we are indeed on the same side of this issue. I appreciate your being here.
Minister, I have just a few questions, if I could. In the other place, the main criticism of this legislation by the Liberals — and, of course, we know the NDP supported it — was that mandatory minimums are not a deterrent. To me, this simply just doesn't make sense that mandatory minimums aren't a deterrent, especially in a situation like this.
The use of children in gangs has shown precisely that gang members are considering and weighing out the consequences and are using children for a very specific reason, as you have already pointed out, that there will be very little or no consequences for the criminal actions of these young people. Knowing that gang members consider lenient consequences as a reason for taking advantage of the law, it is unreasonable to think that they would not be influenced by a harsher penalty. Gangs know the law.
Having said all of that, our concern, as is yours, is always with the perception or the wishes of the people in our country, in your case, the province of Manitoba, my province as well. I'm sure you have talked to stakeholders in Manitoba. What's the mood in our province towards legislation like this?
Mr. Swan: Senator Plett, it is good to see you.
Look, the unfortunate case is that young people who enter gangs are opening up themselves, their families, their friends and their community to great danger. To those who say that they don't believe in a guaranteed consequence for someone who indoctrinates a person into a gang, I think the answer we have to give them is that joining a gang should not be a life sentence. It is difficult for young people, once recruited in, to get out safely. Unfortunately, there are too many tragedies with youths who become involved with gangs. Their behaviour escalates, and they find themselves unable to escape. I know we agree that it's a matter of grave seriousness for young people.
As you point out, gangs know the law. That's why they will have kids under the age of 12 acting as the lookouts or running drugs, because they know there isn't a consequence. That's why they will have certain gang members under the age of 18 take on certain responsibilities within the gang because they know the penalties are very different.
Will this bill, if amended as requested or passed as is, prevent recruitment? No, it will not prevent recruitment, but it will cause gangs to change their patterns. It will make it tougher for them to feel confident going about their recruitment activities. We think the amendments we're asking for will also make it difficult for them to go to places where they're going now to try to recruit people, from Lighthouses to Boys and Girls Clubs, from faith groups that are doing all the right things. All those changes will provide better outcomes for our young people.
I think it will also give more comfort, with the amendment we're asking for, to those groups doing everything they can to provide a positive way for young people to escape gangs. I think those are all very important things that should be considered by the committee.
Senator Plett: Member of Parliament Parm Gill, the sponsor of this bill, spoke about the increasing gang activity in his area of Brampton and Toronto. Can you talk about the gang activity in Manitoba and the increase in gang activity? You've certainly made great strides with the Hells Angels and so forth, but could you talk about the gang activity in Manitoba?
Mr. Swan: It's very difficult to get a firm handle on the level of gang activity. We know that rates of violent crime are declining in Manitoba and elsewhere. In our correctional system, managing the number of inmates who have gang affiliations continues to be a challenge. It is a constant struggle — I'll be honest and use those words, "a constant struggle" — for our corrections system to make sure that staff and inmates are safe — very difficult dynamics, dynamics that can, frankly, turn on a dime because alliances and loyalties are constantly changing. It continues to be a threat in Winnipeg and in many northern communities, and I expect it's a threat in cities and communities across Canada.
Senator Jaffer: Thank you, minister. I appreciate your always making yourself available to us. I certainly appreciate your wanting to tell us about the challenges that you face in your job and what we should be looking at.
I was in Winnipeg with the Human Rights Committee looking at the challenges off-reserve Aboriginal people are facing on the streets of Winnipeg. To see that they had a potlatch of young people that you know — I won't name them — where a five-year-old, because they happened to be in the wrong, place got killed because of gangs, seeing that was an eye-opener. I very much respect the challenges you face.
You have been clear in talking about the vulnerable youth, the Boys and Girls Clubs and the Lighthouses. I feel you are very responsible in looking at how we can keep our young people safe.
The challenge I have with this bill is we know that a young person in a juvenile court could be tried as an adult. Will that young person face the mandatory minimum penalty?
Mr. Swan: Generally, youth who are tried as adults are usually those who have committed the most violent and serious crimes, such as murder, manslaughter, and I suppose if a youth was charged with a serious drug trafficking offence, the federal Crown would try to raise it to adult court.
In my view, it's unlikely that a recruiting offence would be sufficient to have a Crown attorney seek to have it raised to adult court, and I expect it's unlikely a judge would agree. Generally, those cases are for the most serious and violent crimes. Recruitment is a serious crime, but it's not one I would expect would result in youth being raised to adult court.
Senator Jaffer: You mentioned very frankly in your presentation that there are even 12-year-olds who are used as recruiters. Would that person face the six-month mandatory minimum?
Mr. Swan: I'm sorry. If it's someone who is under the age of 18, no, because the Youth Criminal Justice Act would apply; there would be different factors for sentencing and the guaranteed consequences in this bill would not apply.
Senator Jaffer: My second question is about mandatory minimum sentencing. I'm very concerned about the mandatory minimum sentencing we are seeing in almost all legislation in front of us. From the research I have done, I have not seen that it is adding in any way to protecting the public. I don't see that mandatory minimum sentences are a step in the right direction to protect the public on a long-term basis. What is your opinion on that?
Mr. Swan: That is a very big question. We believe there are a number of crimes that are serious enough for public safety that having guaranteed consequences is necessary to deter individuals. We believe that guaranteed consequences can play a role in making sure those individuals aren't back on the street and committing the same offence. We believe a deterrent factor is involved.
In a bill such as this, again, the recruitment of young people is critical to criminal organizations that are in it to make money. It's agreed they do not care whom they hurt and which communities they affect. Again, given what I know about the activities of gangs and what I expect you'll hear from the police, this bill would change the way that criminal organizations and gangs operate.
I don't know if this is the place for a bigger discussion about mandatory sentences. Manitoba has actually called for and we've been pleased the federal government has moved on guaranteed consequences for a number of gang-related crimes. We think that's the right way to go. We've also called for guaranteed consequences, for example, for shootings that are gang-involved. Unfortunately, there has been too much violence in Winnipeg and other cities across Canada, and there are definitely reasons why, in certain cases, guaranteed consequences are appropriate.
If we had more time, we could get into all kinds of ideas about diversions, drug treatment courts and mental health courts. There are off-ramps and diversions that can be used where appropriate, but I do believe that guaranteed consequences for what I think is reprehensible, recruiting young people into a very dangerous life, are appropriate.
Senator Batters: Thank you very much for appearing before our committee today again, Minister Swan. First of all, in my province of Saskatchewan, we have similar gang issues as Manitoba does, of course, so I appreciate your support of this important bill. I appreciate you indicating in your opening statement that there is a current provision but it's not being used, and particularly that's your experience in Manitoba. Can you let us know why it's not being used and why this one is needed instead? You were saying it's needed to be a more targeted and explicit provision, and that's what this provides. Could you expand on that a little bit?
Mr. Swan: I'm going to have to rely on the advice that police have given me and the advice that Crown attorneys that prosecute these cases have given me. I am aware there have only been a handful of successful prosecutions under the existing provisions in Manitoba. I expect there will be similar results across the country as well.
The benefit of Bill C-394 is that it makes it much clearer what the offence is. Again, in this case, as Senator Baker has pointed out, recruiting, soliciting, encouraging, coercing or inviting a person to join a criminal organization, as I understand it, is a much clearer definition of the offence than currently exists in the Criminal Code.
Senator Batters: Thank you. When you spoke about the proposed amendment you would like to see about where they recruit, how would that add to this particular bill? The bill already deals with recruitment and imposes a mandatory minimum penalty where the person being recruited, solicited, invited, et cetera, is under 18. There's already a mandatory minimum penalty in this bill for that no matter where it occurs. How would your proposed amendment dealing with where the recruitment takes place strengthen it?
Mr. Swan: The section that's contained in the proposed bill right now requires proof that somebody has actually encouraged that person to join a gang. I believe that what we're asking for would also make it an offence to be out there recruiting in a place where young people are known to gather, whether or not the person is successful at coercing or inviting someone to join the gang. It's a very clear statement to gang members to stay away from places such as Boys and Girls Clubs or a Lighthouse. We want these to be places where kids are safe to be kids, and we think that change would be a significant enhancement to what's contained in the bill.
Senator Batters: Inviting would imply it's not necessarily a successful attempt to get that person to join a gang, but the invitation has been put out. It's not necessarily that that person has joined the gang, but they've been invited to. That doesn't go far enough?
Mr. Swan: No, we think that making it an offence to be at those places where we know young people gather will be even more of a clear signal to gangs, but it would also make it easier for police to gather the information they need and Crowns to determine that they have a reasonable likelihood of a successful prosecution.
Senator Joyal: Welcome, minister. I would like to return to the two proposals you suggested to improve the bill, as has Senator Batters. I tried to understand what kind of offence you're proposing to add. Is it essentially an aggravating circumstance for the fact of the recruitment having taken place close to a school, a playground, a games arcade or any other location that we understand youth gather? Or is the fact that the offence took place at that location an offence itself? You understand, of course, the difference legally between one and the other. One is on the sentencing aspect, and the other one is an offence on its own. In your presentation, I don't read where you are heading with your proposal.
Mr. Swan: Either change would be an improvement. If the will of the committee was to say that recruitment outside of a Lighthouse or a Youth for Christ centre in Winnipeg is an aggravating factor in sentencing, we believe that could be a very useful tool. If it's the will of the committee that simply the fact of recruiting at or outside a place like that would in and of itself give rise to consequences, we also would see that as being positive. I leave it to the committee to decide which approach would be the most useful.
Senator Joyal: I was thinking when you were making those comments. In this committee, when we discussed the issue of drug trafficking taking place within a school or within a playground or any of those locations, then of course it would be an element to be taken into account in the determination of the responsibility of the offender. The chair might remember the discussion we had, as well as Senator Baker. I was thinking of something similar to that to try to be consistent in the code. As Senator Baker mentioned, when we amend the Criminal Code in so many sections, the Criminal Code gets thicker and thicker, and there's always a problem with the concordance of the code. I raised section 6 earlier on, and I don't want to raise it with you again today. It would be the same with this offence where you suggest that we should take into account where it takes place because, if we want to be effective, targeting those areas might be a worthwhile element.
I come back to your assertion that the bill will change the way to recruit. When we want to fight some criminal behaviour one way and we try to take into account all the impacts of the initiatives we take, it's like pushing your hand on one note and another note appears. In your experience, what would we create as an unintended consequence of the adoption of this bill? How do you think the recruitment would rematerialize? In other words, are we just changing one thing for another? I know it's a difficult question to answer, but I understand that you're aware of it because you mentioned it yourself.
Mr. Swan: We believe that this bill will make it more difficult for gangs to recruit, and that in and of itself is positive. We expect that the passage of Bill C-394, hopefully with some amendments, will make it more difficult, and that will result in fewer youth being brought into gangs.
I said at the outset that part of what we want to do is to make Canada a hostile place for organized crime and gangs to take place. We know that whatever action we take, whether it's seizing the Hells Angels clubhouse or a major drug bust or protecting a child from being indoctrinated into a gang, that's not going to make organized crime go away, but it will make it more difficult for them to operate. It will increase their cost of doing business, if I can call it that. Doing that helps to suppress gang activity. We believe very strongly in a balanced approach. We want to be as tough as we can on the suppression side. We also want to be intervening in young people's lives. We also want to be preventing crime. Part of that is offering positive places for young people to belong and go.
Yes, I believe that if this law was passed, gangs would try to figure out better ways without putting themselves at risk of a serious penalty. I don't think they would be as successful as they are right now. It would make it much more risky for gang members to put themselves out there to try to recruit other people to join gangs. That in and of itself is a public good.
Senator McIntyre: Thank you, minister, for your presentation. If I recall, Manitoba has been looking for this legislation since 2006. As a matter of fact, at the ministers' meeting in 2006, Manitoba put forward 14 proposals regarding organized crime. My understanding is that most of these proposals have been implemented by the government, except for Bill C-394. This Bill C-394 really is music to your ears, and isn't it part of the 14 proposals?
Mr. Swan: Yes, it is. And, again, Glen Lewis, who is on my staff, played a big role in providing the evidence and gathering information for us.
There are still a couple of pieces that we're working on. I mentioned briefly in my comments the scheduling of criminal organizations. We've done that with the Hells Angels for the purpose of provincial laws. We want to support the federal government if they plan to move ahead with the scheduling of criminal organizations for criminal law. That's a big piece, and I expect I may be back presenting in support of a bill, if that comes forward.
We see this as one of the major pieces still outstanding. We know that if we can reduce or cut off the supply of young people for criminal organizations, it is much more difficult for them to carry on their activities.
Senator McIntyre: Another quick question: In the memo that you gave us, you referred to a process called OCI, your Organized Crime Initiative, whereby officials from your government met with stakeholders, police forces and others in Canada and North America. I understand this was huge, and I further understand that this process played a big role with respect to organized crime federal law reforms in Manitoba.
Could you tell us a little more, minister, about OCI?
Mr. Swan: It was a very big project taken on by some officials in my department, and they met with more than 120 organized crime experts in a bunch of areas — policing, prosecutions, corrections and law reform — five provinces, many federal departments and agencies as well as American jurisdictions. The OCI was intended to try to identify gaps. We know that criminal organizations get good advice. They find ways to get around and exploit our laws, and the OCI was intended to come up with proposals for strengthening the Criminal Code and other laws, again, to make it more difficult for criminal organizations to carry on their activities.
You're right. That resulted in a 14-point plan presented at the federal-provincial-territorial meetings back in 2006. I am pleased that the federal government has moved on a large number of those proposals. This would be another piece of the puzzle. We know there is more work to do. We also know new challenges are arising, and we work hard in Manitoba and across provincial boundaries to keep coming up with good ideas for making this hostile turf for people who hurt our communities.
Senator McInnis: Thank you very much for appearing before us. The question I had has been dealt with, the criminal organizations going around specific places.
With respect to the fact that Manitoba has established, as a matter of law, that the Hells Angels Motorcycle Club is a criminal organization in criminal proceedings, is that the case in other provinces? Do you know?
Mr. Swan: No. Manitoba is the first jurisdiction. We passed scheduling legislation, and to give you a little highlight of how that occurred, what has to happen is that an application is made by the director within the department, and a lot of material is gathered. With respect to the Hells Angels, there were many binders of documents, court cases in Manitoba, across Canada and also in the United States, evidence of what police found when they have taken down Hells Angels chapters. That information was compiled. An independent committee reviewed that material to decide whether there was sufficient evidence to prove the Hells Angels to be a criminal organization. They concluded there was. As minister, I concurred with their conclusion, and our cabinet agreed to schedule the Hells Angels.
That means we can use various provincial laws to make it as difficult as possible for the Hells Angels to carry on their activities in Manitoba. For example, I was speaking about the Safer Communities and Neighbourhoods Act. If we become aware that somebody is wearing their Hells Angels colours at a home or apartment, that will in and of itself give rise to the ability for our provincial unit to take action under that act.
It will make it much easier for us to make sure we are denying business licenses or liquor permits to individuals associated with the Hells Angels. We can only go as far as provincial law. We cannot use that in criminal proceedings. We are hoping that by partnering with the federal government, that will be something the federal government is able to do, but there are much bigger constitutional issues and much more work that has to be done on the federal side.
It has been another big step in making it clear that Manitoba is simply a place that organized crime ought not to be. We work closely with other provinces. The criminal property forfeiture area is another place we have been successful, seizing more than $7 million of criminal property. We have a memorandum of understanding with many other provinces across Canada. We share information and resources and are now sharing in the successes of hurting organized crime where it hurts, in the wallet, and we can take the money we are taking away from organized crime. We're returning it to victims, victims' services and also to law enforcement to give them better equipment, training and tools to continue to keep all of us safe. It's a very positive story.
Senator McInnis: I would have thought other provinces would have taken your lead.
The Chair: Thank you, minister. We appreciate your contribution.
For our second panel today on Bill C-394, please welcome, from the Boys and Girls Clubs of Canada, Rachel Gouin, Director, Research and Public Policy; and Marlene Deboisbriand, Vice-President, Member Services; from the Canadian Safe School Network, Stuart Auty, President; and from the Winnipeg Police Association, George VanMackelbergh, Vice-President.
I understand we will begin with Ms. Gouin and move across that way for opening statements. The floor is yours.
Rachel Gouin, Director, Research and Public Policy, Boys and Girls Clubs of Canada: Thank you very much for having us speak to you today. We're honoured. Boys and Girls Clubs of Canada is an organization that has 99 member clubs. They're across the country. We serve 200,000 children, youth and their families each year. We know from our clubs that gangs have a disproportionate impact on certain communities. Clubs in Winnipeg, Calgary, Toronto Scarborough, Battleford and Vancouver have told us first-hand and experience first-hand the devastating effects of gang activity and violence in their communities — the trauma, the grief, the loss of potential.
An example from our Winnipeg club was used when this bill was presented, which compelled us to have a good look at it and to contribute to the discussion.
At the Winnipeg club, at one of their sites, gang members wait in the parking lot across the street from the club, and, as young people walk by, they're accosted. They try to draw them in and build a relationship with them. Luckily, the club is there. They have strong relationships with the staff at club, and it's a good place for them to be, a safe place. The club works with the police to ensure that the gang members are scattered, but it's a recurring problem. We understand that this bill will give an additional tool to police officers to intervene in such cases, and we think that's a positive step.
We also hear from clubs that, in fact, recruitment is not always that obvious. The Boys and Girls Clubs in the Vancouver area talk about the impact of homelessness on youth, how they end up staying here and there and then are staying, without their knowledge, at the house of a gang member, who asks that they do a certain activity. Young women are particularly vulnerable to sexual exploitation. Those are not as obvious and plain to the eye, but they are also ways that young people are recruited into gang life, taken advantage of because of their vulnerability.
While this bill will provide additional tools to police, it won't be enough to address all of the problems and the ways that children and youth are targeted by gangs or lured into those kinds of activities because it does fulfill some of their need for belonging and safety and opportunity. We can fulfill those needs in other, more productive and positive ways.
We heard from some of our clubs in the area of Regina that children sometimes have little choice as to whether or not they are part of a gang. If someone is in a family where there are gang members already, they are assumed to be part of the gang.
Our Battleford club shared the experience of being in the park before programming started. One of the young people had a treat, and a staff member asked, "Where did you get that?"
"My brother's friend gave me some money to go buy myself some food." The staff member knew that this person was gang-affiliated. They are not talking about recruiting them into the gang. They are just building a relationship with youth, and the Boys and Girls Clubs want to build relationships with youth and keep them close to responsible adults.
Part of what I want to do is talk about actions over and above Bill C-394. We have three recommendations that we think will really make a difference. We need to address homelessness in a more comprehensive way. We need to have programs available to youth to bolster their sense of worth and belonging and to make them less vulnerable to gang recruitment because, as we heard from Minister Swan, gangs will find other ways to recruit young people. So this is a good measure, but we need to be mindful and help young people lead good lives that have strong and positive role models. Also, we would favour a restorative justice approach to give young people a chance to make amends and lead a better life and repair the harm they've done.
To get into it a little bit, as for homelessness, we think low-barrier housing options for youth are very important. Our Okanagan and Calgary clubs are working in that area. Okanagan has a drop-in shelter for youth 13 to 18 years old. They offer a safe place to hang out and to sleep, support, adults who can listen and a shower and all those things that youth may be looking for, but also skills training and getting them interested and hooking them back into school or a job. The Calgary club set up a phone line that is used by police officers, counsellors and schools when a youth is either homeless or vulnerable to homelessness. They are able to respond within 24 hours to reach the young person, offer them shelter and also try to reconnect them with their family, if that's possible, or to find long-term and permanent solutions to their homelessness. These are programs that will make these youth less vulnerable to gangs.
In terms of youth programs, we know that even the most at-risk youth and those who are on the verge of getting into trouble can be reached through high-quality after-school programs. We can reduce violence and also reduce the victimization, so it fulfills the needs, as I was saying, for safety, belonging and opportunity.
Those programs, especially when we're in neighbourhoods that are affected by gangs, need to be reliable and long- term. It takes six to seven years, clubs tell us, to build a relationship strong enough with a young person that will pull them out of a tough situation and where they will be confident enough to turn to you if they're feeling drawn into gang life or need your support.
The relationships take a long time to build, and so we need stable funding. That can come from the Youth Justice Fund or the Youth Gang Prevention Fund. Those are great programs. Often they're not long enough, so they're a pilot project or the project ends with too short a timeline, so that's a challenge.
The Youth Employment Strategy — we can do a lot with youth employment programs as well. But again, in high- risk neighbourhoods and youth who face great barriers, we need more time to get them into a job, especially if they have had encounters with the criminal justice system.
The Chair: I hate to interrupt, but how much more do you have?
Ms. Gouin: The last point is restorative justice. We think young people who have made poor life choices should have the chance to make amends. There are restorative justice programs in our clubs. We welcome youth, work with police, they're referred to us, and we find a way for them to learn about what they've done and do community service work and get back on track. We know that people who have had encounters and experience with the justice system can also, with the right accompaniment and mental health supports, be great mentors to youth and recruit youth into a more positive life.
George VanMackelbergh, Vice-President, Winnipeg Police Association: I would like to say how honoured I am to be here to represent my organization, and I would like to thank the committee for all their good work. I'd like to thank the Honourable Parm Gill for bringing this forward, and for all the great work done on this bill so far.
I'm here to represent the 1,943 members of my association. I have 25 years as a working police officer, working mostly in the inner city of Winnipeg, one of the busiest and most challenging jurisdictions in the country. Along those 25 years, I spent 6 years as a gang investigator, working strictly on organized crime, and all aspects of it. That included the recruitment of informants and moving those informants up to agent, or working extortion to attempted murder.
In my jurisdiction, gangs as we know them have been around for 30 years in the context that we refer to street gangs now. We have multi-generational membership in these gangs from within families. It's important to understand the draw of what we're dealing with.
The WPA supports this legislation, as we would support any legislation by the government of the day that attempts to stymie gang or organized crime activity. This is a real threat to our culture and citizens on multiple levels. I believe that Bill C-24 contextually spoke to the recruitment of gang members but did not specifically address it, and that's why I'm happy to see this bill here.
We would like to see greater sentences if recruitment occurs in areas where youth feel secure: schools, community centres, playgrounds or anywhere they congregate. If we want to stop gangs, we have to stop them before they get in. This bill talks about a crime that is predatory in nature. In its true nature, this is predatory. They seek out the most vulnerable and offer them a facade of security, a facade of acceptance, a facade of family, which isn't there once they're in. Once a 13-year-old is brought into this gang and starts to sport tattoos on his face, has his family close to the gang, his options are limited. It is tough for a 16-year-old youth in Winnipeg to get a job with "B-Side" tattooed across his face or neck, and that's why we need to intervene.
Gang recruitment is targeting younger and younger persons. I'm sad to say we have 15-year-olds involved in murders in Winnipeg. This is at the hands of gangs who understand our judicial system.
As has already been said, once a youth enters a gang it is very difficult to leave. He faces severe beatings, threats to his family, and there are all sorts of deterrents that you don't hear about. It is insidious, whether it's the owing of money or threats. I have seen tattoos scrubbed off with wire brushes. It is not a pretty sight.
Over the years I have personally watched gang activity in my city move to the more affluent neighbourhoods. This is no longer just for poor kids, and we're seeing it in the middle and upper classes.
I would like to see, if this bill is accepted, that there be support for this bill so that we don't make the burden of proof so onerous that it's unwieldy by smaller departments. Once again, it's important that it doesn't become so onerous that it exceeds the capacity of police agencies.
An example would be the Lindsay and Bonner case with the Hells Angels, when they tried to prove criminal organization and the number of experts they had over a simple extortion charge. I would hate to see that happen, because this is a great bill.
I think to be successful in prosecuting these types of charges the Crown will rely partly on documentation that has to be gathered from the shareholders in the criminal justice system, who all have silos of information. The support we would need is to see some sort of conduit that would allow these stakeholders to share their information. We need to see a combined database accessible to all law enforcement.
Gangs continue to exist in Canada, and what's important to understand is that it's like the NHL. They have a feeder system of gangs. The big boys on the block watch youth come into their gangs and they watch them progress in the bigger gangs. This gives them the opportunity to weed out potential informants and creates greater insulation for them. Once they are indoctrinated into this lifestyle, they get deeper and deeper into it until they have no options.
We also see the larger gangs using the smaller gangs as insulation to do business, and it's insulation from prosecution.
Making recruitment an offence provides law enforcement with yet another tool. It's not perfect, but I think it's a step in the right direction if we can keep gang members from recruiting kids out of schools and clubs and keep their recruitment to prisons. I think that's a step in the right direction.
I would say in closing that I'm very encouraged by this, both as a citizen and as a police officer. I'm very encouraged to see government bringing forth legislation that protects the greatest asset this nation has, which is our youth. This legislation will help to protect the investment of resources that all levels of government have put forward and give youth options and opportunity.
Legislation such as this and a victims' bill of rights bring balance to the justice system and remind Canadians that crime is not victimless.
Stuart Auty, President, The Canadian Safe School Network: Thank you for the invitation to be here today. This is an important issue for the Canadian Safe School Network, as we've been involved in this type of issue for quite a number of years. A bit of background of who we are: We're a national charitable organization with a mandate for early intervention and prevention. That has been our focus and continues to be so.
We grew out of Ontario's Safe School Task Force in the early 1990s, so we've been around for quite a while in this world. We know that children's behaviours and attitudes can be modified early. Research shows that. We, as an organization, have in fact done it.
My personal experience is that of a former high school administrator and founder of the Vanier School for Young Offenders. I say that because I've been in the jails, I've been with kids. I administered the Vanier School for several years in Brampton, just over on McLaughlin Road, for those who know the area. We built that school in a warehouse. I administered for several years, and what I found was that these kids weren't any different than the kids in the high school I had just come out of. They were the same. But they came from families who didn't have direction, and they didn't have direction. It was largely the fact as well that they had never been told "no" in many cases. They ended up where they were in some cases, they felt, by accident. I have an understanding of that world.
I agree with the intent of this bill to further protect our youth. I agree there needs to be a balance, as the gentleman from Manitoba mentioned on a number of occasions, between creativity and prevention — I should say reaction and prevention, of what this bill might provide, so balance is necessary.
I agree with the intent to further protect our youth. We need to do that as adults and as a protective society. I agree that research shows that gangs are increasing. They've been increasing since we started this organization back in the early 1990s, at an exceptional rate. They've just been multiplying. I agree with all of that.
Of course, I agree that youth are vulnerable. They're vulnerable. We all know that. Our goals are the same but our pathways are different.
Mr. Gill provided the example of a 19-year-old who had been recruited into crime. He could have had a successful, law-abiding life. That young man had a negative lifestyle that he grew up with. It was an anti-social lifestyle. He needed to understand a pro-social lifestyle. There are programs out there that are pro-social that teach these kids how to change their behaviours. The Canadian Safe School Network is one of the organizations that have in fact done that, to a successful degree.
The question to me is, do we focus on catching the recruiters, with the associated cost of mandatory incarceration, or do we focus on reducing the recruiters' clientele, the mass of clientele? Should that not be our focus?
The problem is that supposedly this legislation will enable police to catch and incarcerate more recruiters. That's the goal here. The problem is, we don't know the cost. We do know that the cost is open-ended. It always is with a police program — very open-ended. I do not know of a program over the last 30 years where massive amounts of money have been put into community programs. I don't know of one of massive amounts. I do know of a number of police programs where a massive amount of money has been put into policing. I work in partnership with the police. I understand their needs. I understand how the community's reaction is to supporting the police, and I'm in agreement with that. Where's the balance? This is what I'm talking about. This is what a lot of my position and our position is today.
The concept that mandatory jail time is a deterrent is questionable, particularly when compared with reality. I don't know of any studies that say mandatory jail time is in fact a deterrent. Maybe it's out there. It could well be out there. But I do know that mandatory jail time is a massive failure in the United States. Just take a look at California. It's a mess, and they know it and they're trying to get out of it. We seem to be moving in that direction, for some unfathomable reason that has never been explained to me.
The Boys and Girls Clubs have their programs, and so does the Canadian Safe School Network. We have a program called SNAP — Stop Now and Plan. We finished four years of programming where we serviced something like 6,000 at-risk kids in the Greater Toronto Area, five school board partnerships. The cost of doing that was the cost of one person essentially serving jail time for his life in a Canadian jail. One person. We serviced 6,000 at-risk kids. Now there's a comparative in how you spend your money.
Simply put, funding is out of balance for community programs versus reactionary programs. By the way, I'm not against this bill; I'm against the mandatory sentencing aspect of the bill. We recommend that the government undertake a comparative cost study of mandatory minimum sentencing versus diversionary programs with a preventive focus, number one. Just go find the facts. This isn't a belief.
Number two, create a funding structure that would facilitate the continuation of successful federally funded pilot programs — they're out there — in partnership with provincial ministries of education. There is no structure. We faced a four-year, $4-million program funded by the federal government, very successful. The Ontario Ministry of Education wanted to continue the program in partnership with the feds and couldn't do it. There was no structure. The will was there, but there was no structure. So what did they do? They kicked in $200,000 just to get another couple of months out of the program. It was terrible that that actually had to happen. I'm sure the Boys and Girls Clubs have similar stories regarding seed money successfully put in by the federal people.
Ladies and gentlemen, I could rattle on about this, but that's largely it from our perspective. Minimum sentencing is proven to be not successful in other jurisdictions; preventive programs are proven to be successful; a balance is needed, which has been said repeatedly this afternoon. A balance is needed. We don't have the balance, so let's go find the balance.
Senator Baker: We certainly enjoyed and appreciated the presentations here today: Mr. Auty, excellent; Ms. Gouin, excellent.
I would like to ask a question of George VanMackelbergh. You've been in the field 25 years. You've had six years working against criminal organizations and gangs.
Mr. VanMackelbergh: Yes, sir.
Senator Baker: One of your messages that hit home to those of us who read case law is you said, "Don't make the burden of proof too onerous."
Mr. VanMackelbergh: Yes, sir.
Senator Baker: I was reading a moment ago, the British Columbia Supreme Court 2007, BCSC 1671, paragraph 65: This legislation does not make it an offence to be a member of an association that has been labeled a criminal organization. In order to run afoul of 467.111 of the code, a person must knowingly participate in an activity of a criminal organization for the purpose of enhancing its ability to commit an indictable offence. Mere membership is not a crime.
Also the Court of Appeal of Saskatchewan this year said approximately the same at paragraph 19 of 2014 Carswell SASK 2, as far as knowingly instructs is concerned.
So we have "knowingly participates" in section 467.11. "Knowingly instructs" is in section 467.13, and section 467.12 is actually doing the offence but you have to prove not just that they belong to the criminal organization but what the purpose of the organization is, that they participated knowing what the organization was all about.
So the onus on you — granted, you have to admit, this is an extraordinary area of the code. You can put on a telephone tap without proving that you've used other methods of investigating. You can keep it on for up to a year or three years, I forget the amount, and life imprisonment for the most serious crime under this particular section.
You'll be happy to know that the drafters of this legislation — and I think Senator Plett had a lot to do with it — left out the word "knowingly "so you wouldn't have to prove, the way this reads, that they knew the organization was conducting indictable offences and that they were in fact participating in an action for which there would be some return. Then I suppose the problem arises, is it going to be constitutional?
What is your reaction? You've been in the force for so long. You know offences are taking place, and we here make it so darn difficult for you to lay charges.
Mr. VanMackelbergh: That's a good question. Probably a better answer is way above my pay grade.
I would say this: I think every law we have on book has the best intentions. Unfortunately, part of the judicial system is the rule of law and the business of law, and that's for greater minds than mine. I just think that when things are drafted, there needs to be a balance to it. Nobody here will argue more vehemently than myself about our Charter of Rights. I've spent my entire adult life in a uniform as a member of the Armed Forces or as a police officer, and I believe in those rights 100 per cent. That's what makes our nation great. However, when we have laws, there has to be balance. There has to be a usable tool in there for police. If we're just going to bankrupt the system because of points of law, it's really not of use to anybody. That's just my humble opinion, sir.
Senator Baker: Well, that's very good. Thank you.
Senator Plett: Thank you. I'm always amazed that when we run out of arguments and reasons for not approving something, or arguing against it, we say "Well, it's probably not constitutional." Since I've been here for five years, I don't think we've ever found one of the laws we've passed to be unconstitutional. I may be wrong on that, but I don't think we have. I suspect this one would be the same.
I have a few questions here, if I could, one to the Boys and Girls Clubs and as well to Mr. Auty. We are not trying to create legislation here that is supposed to be hard on the youth. It's supposed to help the youth. Yet the argument you're making is let's develop programs for the youth. That's not going to stop a gang member from wanting to recruit that youth just because we have a good program for the youth. They will still be out there trying to recruit them, and they will still make things interesting for them.
Mandatory minimum jail sentences of only six months apply exclusively to adults recruiting children. Whether or not the recruiter has had a difficult life in this context I believe is irrelevant.
As I say, this does not prevent other legislation and other programs from taking place — I support your programs — that could deal with those who have already been recruited but rather serves as a valuable tool to deal with one specific, serious issue.
Aside from the fact that we need programs for youth, would you not agree that this legislation is not focused on punishing youth but rather on punishing adults, and whether that isn't acceptable?
Marlene Deboisbriand, Vice-President, Member Services, Boys and Girls Clubs of Canada: I'll answer in a couple of phases. We are actually in favour of the bill. The challenge here is that the recruiter is not necessarily the person that needs to be spending time in jail. The recruiter is often an 18-year-old who's trying to get a 16-year-old, and to put an 18-year-old in jail for six months will actually probably lead him to further gang life, and that's a real concern for us.
The second piece is that someone earlier asked Minister Swan whether he foresees any unintended consequences of this law coming into effect, and we believe that one of the unintended consequences will be that recruiters will be younger than 18. That way, they will simply avoid being subjected to the law. That doesn't mean we're against the law.
Senator Plett: They have to be recruited first.
Ms. Deboisbriand: They have to be recruited first, but they're very talented at doing that. We're not talking gangs or Hells Angels. That's not who our kids are recruited into. They're recruited into street gangs. The problem is we're seeing great increases particularly in young Aboriginal children in some of our communities. The recruiters will become younger, and the recruiters who end up being fairly young, whatever that age is — 16, 17 or 18 — if they spend time in jail, and some will and some should, for some it will mean a lifetime of gang activity as opposed to potentially restorative justice that could lead them in a different direction. Again, it's about balance. I think we've used that term.
Mr. Auty: I'm not aware of any studies that have shown that mandatory sentencing works. Maybe you can tell me if you have one, but I'm not aware of one. Secondly, that's part of the bill, the minimum sentencing. That's number one I cannot agree with, unless it's shown to me that somehow it does in fact work.
The other one has to do with clientele. The clientele are being recruited. There is more bang for the buck, it seems to me, if you reduce the number of clientele that the recruiters are going after, and those of course can be accessed via programs out there — Boys and Girls Clubs have them and we have them and other organizations have them — and they work.
Senator Plett: I encourage you to continue with them.
Mr. Auty: I talked about massive amounts of money. Here is where the nub is. Massive amounts of money have gone into policing. The Guns and Gangs Task Force in Toronto, which was very successful, by the way, drove the gangs out of Toronto to Orillia and other places, as I'm sure you must know. The OPP will tell you that. Their workload jumped when it was successful in Toronto. It shifted. Not that it was a bad thing, but it shifted.
What works is if you change a kid's attitude early on, and seven years was mentioned as a bottom line, and it is. Our program was for Grade 3 children, at-risk kids, 6,000 of them. I mention that because that did reduce the number of people out there that the recruiter is going after.
So where do you spend your money? I'm simply saying, if you want value for dollar, let's go where the real value is.
Senator Plett: I agree. Kids aren't recruited out of churches, so we support you in that. I took particular offence to a comment you made about Mr. Gill's reference to a young man. I believe it was a young man by the name of T.J. Wiebe. T.J. Wiebe did not come from a bad home. He came from a great home. I would like Mr. VanMackelbergh, who knows the case well, to give us a little bit —
Mr. Auty: I wasn't referring to that, by the way.
Senator Plett: Fair enough. I appreciate that.
Mr. Auty: It was another individual that he mentioned in his comments that I read from the report that was sent to me. It wasn't Mr. Wiebe.
Senator Plett: Fair enough. I would like Mr. VanMackelbergh to tell us the story of T.J. Wiebe, and I believe that would give it context.
The Chair: If you could respond briefly.
Mr. VanMackelbergh: Yes, I can. T.J. Wiebe is a great case. I won't get into the details of it. It supports what I said about citizens realizing that youth gang problems are no longer just in the lower class. T.J. Wiebe came from a middle- class family. He was lured by the power and money, thinking that everything would be fine. But what happens to youths, whether it's T.J. Wiebe or some young fellow off Spence Street, is that the lure is over. Once you owe them money and you're in a position that you are of no use to them, you're going to pay. Unfortunately, T.J. Wiebe paid with his life.
That is why this is so insidious. I agree with my fellow presenters. There's no doubt that it's a three-pronged approach to dealing with gang activity in Canada — education, resources for youth, and laws and legislation and tools for enforcement — and we're here to talk about a tool.
Senator Jaffer: Thank you to all of you. I found all three presentations very interesting. I also want to recognize, sitting at the back here, Patsy George, who was the former vice-president of the national Boys and Girls Clubs.
Last Friday, I went to a breakfast in Ottawa at the Boys and Girls Clubs, and I came away very disturbed because young person after young person talked about coming to the Boys and Girls Clubs and that is where they found safety. They said, "We joined the club. We are where we are because this is what kept us safe." It's funny that this bill comes at the same time I went to the breakfast. I get it now, and I probably wouldn't have gotten so starkly how vulnerable young people are saying Boys and Girls Clubs keep them safe.
When you speak about education and resources, my concern is that we pass all these bills, but where are the resources? You can't just have the bill without the resources. I was really struck by your brief.
You were talking about overrepresentation of Aboriginal children in jail, and prison gangs merely compound the problem of street gangs. You've touched on it, but can you speak about the challenges of Aboriginal children?
Ms. Deboisbriand: The challenges are deep. I think we all know that many of these children come from families that carry a history of baggage associated with residential schools, et cetera. The conditions on many reserves in Canada are less than stellar. So many of these kids, when they reach teenage years, move from the reserve to urban centres, and in urban centres they are searching for who they are and how to connect to community. They're not connecting to their reserve; they have left that behind. If they don't have those friendships or those adult mentors or a safe place to go — often a club, sometimes other places — the temptation is to go where they will have status, where they'll feel important, where there's the possibility of getting revenue, because they need things, they want money, and a gang offers all of that, on its face. Of course, as soon as they're hooked in, they're pretty quick, as George was saying, to discover that it's pretty flimsy. It's there as an attraction; it's not there in the long term.
Ms. Gouin: Those youth need protection, and this bill will give them that. They need protection, but they also need the programs that will draw them in and support them. So we need both.
Senator Jaffer: I have very little time left, but have either of you ever run into a young person or any person who has said, "I won't commit that crime because I will get a mandatory minimum sentence"?
Mr. VanMackelbergh: That's interesting. I hear a plethora of rationale when somebody is being incarcerated, but what I can say from my own experience is that when you have experienced criminals, as they get older in life, the only thing they respect is the time that they do spend in jail. Restorative justice is there for young people making mistakes, but for hard-core gang members, the only thing they respect is the time they spend incarcerated.
Senator Jaffer: Mr. Auty, I think you and I agree. I'm really disturbed by mandatory minimums. I don't think they change anything. You said enough when Senator Plett was questioning. Have you ever had a young person, or any person, say to you, "I got out of this because I don't want a mandatory minimum," or "I will get minimum mandatory sentencing"?
Mr. Auty: My experience when I was administering the Vanier School for Young Offenders was quite the reverse. Kids were surprised to be there. They didn't think they would ever end up there. I agree about the long-term criminal, the hardened criminal. We're not talking about that person. We're talking about somebody else here. We're talking about new people coming into a system. It has been my experience that jails are schools for crime. It's a university for crime. Kids learn how to do bad things.
I look at this business about deterrence. A sensible person would be deterred. You and I would be deterred from committing a crime. We would think, "My goodness, we're going to go to jail." It's like not paying your income tax: "The feds will come after me. The CRA will get me, so I'm going to pay my taxes." We're sensible. The criminal mind is not sensible. It's a different mind. They don't think that way.
When we think of deterrence and the community thinks of deterrence, they think that's good; that's going to stop them. They're not the ones being affected by this.
So the question I have is, does anybody know that this, in fact, can be proven? Because I've never seen it.
Senator McIntyre: Thank you to all of you for your presentations.
Mr. VanMackelbergh, as a lawyer, I can understand your concerns regarding the onus of proof. Under this particular legislation, before the Crown proves recruitment, it has to prove, first, there is a gang, and second, that this gang is associated or involved with a criminal activity.
Bearing this in mind, clause 14 of the bill calls for judicial interim release. In a criminal trial, as you know, the onus of proof is on the Crown; the Crown must prove its case beyond a reasonable doubt. However, under this bill, the burden is reversed. I'm referring here specifically to clause 14. In other words, the accused, not the prosecutor, must show cause why his or her detention in custody is not justified.
For certain offences, including the three existing criminal organization offences under sections 467.11, 467.12 and 467.13, the burden is reversed as well. I agree with this legislation, and I just want to know what your thoughts are on this.
Mr. VanMackelbergh: Personally, I agree with the reverse onus when it comes to organized crime activity.
Senator McIntyre: So do I.
Mr. VanMackelbergh: I know within the judicial system over the years, they've been very wary of that in Canada, as opposed to other jurisdictions, like the United States. But I certainly agree with you and I agree with this bill, the reverse onus when it comes to gang activity. If you're not in a gang, you should have no problem saying that you're not and proving it.
Senator McIntyre: You've spoken about two programs: the Youth Justice Fund and the Youth Gang Prevention Fund. Can you tell us a little more about those? How are those funds differentiated?
Ms. Gouin: I don't know if I can say how those funds are differentiated. I know the clubs' access, so I can't speak expertly about each program. I'm not the one delivering.
However, several of our clubs have had that funding before. Often it's on a three- or five-year cycle. It's too short a time to make a significant difference. Some clubs are refusing to deliver those programs through that fund, again because it's just a barrier to effectively getting the results that they want. Those are the challenges.
Often, when a project is successful, it ends because it was a pilot and it moves to another community. Again, that poses a real challenge. Transience and having people come in and out of your life is a reality for people who are high risk, and having that solid relationship for several years is very important.
Ms. Deboisbriand: The only thing I would add is that nationally we've accessed funding through one of those funds in the past couple of years. We hosted a workshop called Gang Prevention Through Targeted Outreach. Colleagues from Boys & Girls Clubs of America, you can imagine that their problem is larger and more important than ours. They taught us, and taught our clubs, a lot about how to really target those kids who are the most vulnerable, to bring them into clubs and provide programming for them. There were a lot of lessons for us to learn that were brand new. For example, those kids don't want to hang out with the after-school crew. They come from different worlds.
Hosting that workshop was excellent, and it was through the fund. We weren't able to do the second phase of that orientation, or provide our clubs with the professional development they need to do this well, because we couldn't access the fund a second time. That's always the challenge, not just with federal government funding but with provincial government as well.
Senator Joyal: Thank you for your comments. I happen to have a different opinion about our responsibility around this table to check the constitutionality of what we're doing here, because sooner or later the Canadian court will call us back to order, as they did on three occasions following legislation that we have adopted here.
I will quote the last Supreme Court decision in the Whaling case that was rendered in March; I will quote the decision of Smickle that was given by the Court of Appeal of Ontario in January; and I will refer to another decision from the Supreme Court of British Columbia, all related to minimum penalty.
That's not essentially the issue I want to raise with you, but the issue of deterrence can be applied differently on the basis of the cases they have at hand. It's not because you have adopted a fixed determination of sentence that immediately people will stay home and say, "Oh, my God, I'm going to end up in prison. I should stay away."
We have heard witnesses say that when somebody has an intention to commit a crime, he doesn't think he will be caught. If he thought he would be caught, he would stay home. He thinks, essentially, of means to try to commit it without being caught. That's where he applies his imagination. We have been told that a hundred times. Unfortunately, I think that's more the reality than anything else. Then we have to address more the motivation of somebody to commit the crime than the fear that they will end up in prison. There are two sides to this situation. But that's not what I want to lecture on this afternoon.
I'm more concerned about the recommendation you made, Mr. VanMackelbergh, and the one we heard from Minister Swan, and I quote your brief:
We would like to see greater sentences if recruitment occurs in areas where youth feel secure: schools, community centres, playgrounds or anywhere they congregate.
I was listening to the minister — and I mentioned it earlier on — about when we were seized with amendments to the code with drug trafficking. We increased the penalty if the transaction happens in a schoolyard and so forth.
You can say 500 feet from a recreational facility, but what about bus stops? Then it came to mind, what about the Internet? We know what kids at school these days are like. That is a much more effective way to recruit kids than to stay by the schoolyard and say, "Hey, come here. We have something to show you." This might have been the situation 10 or 15 years ago, but we are in a totally different world. If we are to make an aggravating circumstance, if the recruitment or the coercion happened to be on school grounds or where youth stay, are we not in fact addressing a minor way of reaching today's youth when they can be reached in a major way on the Internet? What is the level of crime that might be much more motivated to be created by Internet than by direct contact of person to person?
Mr. VanMackelbergh: You make a very good point. My response to you would be this: You're going to see changes to cyberbullying, and I think a lot of recruitment is cyberbullying — your part about the Internet. The fact still is that these individuals attend schoolyards. They still sit outside clubs where our government has funded programs to give opportunities to young people or people at risk to make a better choice. It's still occurring there. I take your point — it's a great point — but given cyberbullying and some of the steps being made, there are tools for police to use. Still at the grassroots level we have gang members sitting outside community centres and gang members recruiting in schools. It's still happening.
I don't want to overstep my authority or knowledge on issues that are not mine to speak to, and that's why you fine people here are doing a great job. However, I can get into a cruiser car, drive virtually to any school yard in Winnipeg and see gang members. I can see gang members preying on the weak, the disenchanted and the ones who have been bullied; and they are there. They lure them into a lifestyle that's very difficult to get out of.
Do I think this is perfect? No. Do I think it's a great step and a workable tool? Yes.
Senator Joyal: Mr. Auty, do you want to comment on how to tackle the device that organized crime might think of in order to bypass what we think will be effective in one way but in fact will have pushed the problem somewhere else?
Mr. Auty: It's an old problem in schools. It goes back a number of years. It started with the cell phone. Gangs got together instantly with kids. It's a high school vice-principle's nightmare to have to deal with gangs or groups who want to get into a fight or cause mayhem. They can move from one section of a building to another section of a building almost instantly because of cell phones and the Internet. It's an old problem that's getting worse. Of course, cyberbullying is out there in a big way and the impact is extraordinary on children. We have had the Parsons case of suicide and the Todd case of suicide. We never used to see that. Now, we see that on a semi-regular basis. Yes, the Internet will have a profound effect on recruitment. It jacks up the police requirements to enforce; so yes, it's a big thing.
[Translation]
Senator Dagenais: My question goes to Mr. VanMackelbergh. Please pass on my regards to your president; I had the pleasure of knowing him at the Canadian Police Association when I was a member.
What we noticed in street gang recruitment is that young people were recruited because everyone knew that a young offender who commits a serious crime receives a less severe punishment. So clearly, we are going to have to go after the people recruiting those young people because they know that they are going to make them commit serious crimes. But with minors, the penalties are less severe.
In your view, is that recruitment increasing, or is it stable? I can tell you that, in Montreal and Quebec City, it is increasing, for the reasons I am giving you.
[English]
Mr. VanMackelbergh: I would say that I agree. One of the unfortunate lessons in law enforcement is that every time we successfully prosecute gang activity, gangs learn. As I said, we are seeing younger and younger youth being recruited. Again, not to overstate it, we have a 15-year-old involved in murders being committed by gang members because they know that the penalty for the youth is less.
If you can raise them to adult court there still seems to be leniency. You have them at everything. I'm sure it's no different in Montreal. In my biker days, we saw all the time younger kids riding up on their BMXs holding the cell phone, the drugs and the weapons. I guess the quick answer is yes, we see it as an increase.
Senator Frum: Ms. Deboisbriand, I listened to your comment with interest about the unintended consequences, and it relates to the question that was just answered, that this will see recruitment driven down to younger people. That's an interesting and compelling argument. You said you support the bill, and I support the bill, but you can see that that is a very possible outcome.
I would say on this whole debate we're having about deterrence, clearly that's also proof that the deterrence measures in this bill are very effective. Why drive it down to minors unless the people currently doing the recruiting will see that there will be consequences to their actions? Doesn't that make the case that the deterrence factor here is quite real?
Ms. Deboisbriand: At some level you're absolutely right. There is a big difference between a 25-year-old and an 18- year-old as well. That magic line must be drawn somewhere when you're writing laws. I totally understand that. Will a young 18-year-old understand that the law has been changed? I don't know. Will the 25-year-old gang member know? For sure it'll be interpreted but differently.
You're right. Policing is important for the younger kids that are potentially being recruited outside a club in Winnipeg, as an example — fictitious, right? For the young person who is the target of the recruit, the policing is important because the fear of getting caught being recruited is a deterrent, in my view. I think my colleague would agree on that. But will a 12-year-old or a 14-year-old think of the fear of being in jail? Probably not that far. The thinking patterns between a 12-year-old and an 18-year-old and a 25-year-old shift dramatically.
Senator Frum: Are the 25-year-olds better recruiters at this moment? Are they the ones? Is it that the younger child is flattered by the attention of an older person? What's the dynamic?
Ms. Deboisbriand: We're actually seeing that as they're recruiting, for example in our clubs and after-school programs between the ages of 12 and 15, they tend to be younger. It's not 25-year-olds but the 17-, 18- and 19-year olds that are recruiting a few years younger than they are unless it's family. If your brother is in the gang of course you'll be in the gang. Otherwise they tend to recruit one age group just underneath them. That's typically what we've seen.
Mr. VanMackelbergh: Without trying to sound like a psychologist, because I'm not, part of the allure of gangs is the allure of family, the allure of belonging. It's the older brother they've never had. It's often a dominant male figure they've never had. There is a tremendous drive with young candidates being recruited into the gang to please, and they play on it. Recruiting is truly predatory in nature.
Senator Batters: First of all, Mr. VanMackelbergh, I think you're very modest about your accomplishments, and you have said many times how you don't have this, or that is above your pay grade, but you've done a lot for your community and your country, and we appreciate it.
Mr. VanMackelbergh: Thank you.
Senator Batters: Mr. Auty, I think you mentioned something briefly at the beginning of your presentation, but I didn't take note of it. Can you tell us a bit about your organization? I'm not familiar with it. Who do you represent?
Mr. Auty: The Canadian Safe School Network began with the Ontario Safe School Task Force that I was a member of. I was on the board of directors for the Ontario secondary school principals. Because of my background with the Vanier School for Young Offenders, we found ourselves at coffee breaks — we'd meet once a month. This is a provincial organization, the principals' organization. We found ourselves talking more and more about the various negative activities going on in our school, violence. This was 1990, actually.
Senator Batters: Was that all high schools in Ontario?
Senator Batters: All high schools in Ontario.
Senator Batters: Belonged to this organization?
Mr. Auty: Yes. Based on that, we created a committee to look at it. Because of my background, I was asked to chair the committee. Before I knew it, I was seconded permanently. I've never gone back to the school system. I chaired the Ontario Safe School Task Force for a number of years until the money ran out.
We did many things. We did research, surveys, investigations, and Dave Boothby, who was the chief of police in Toronto at the time, asked if I would continue to work on the task, because I was going back into the system as a school principal. I had no idea how to do this. He said, "I will get you a contract with the government and fund you somehow if you'll do it." This was at a breakfast I had with him in April of 1997. He said, "Who should I call?" I said, "You've got two choices. You can call the director or the chairman of the board." Ten o'clock the next morning, I had a call from the chairman of the board who said, "Stu, you're gone again."
That was Dave Boothby. The Toronto Police have been very close partners for many years.
Senator Batters: Mr. VanMackelbergh, you said earlier, and I think I got the quote right, that the only thing gang members respect is the time they spend incarcerated. You spoke strongly about that type of effectiveness, and I'm wondering how you respond to that as someone who has been involved in law enforcement.
Mr. Auty: Have you heard of the program Scared Straight?
Senator Batters: Yes.
Mr. Auty: Scared Straight is an old program that has been proven not to be effective. I can recall one time going with the Toronto Police to Kingston Pen, and we took a bunch of kids who had been in contact with the police down to see the penitentiary. That's where they might be headed. I'll never forget it. We went down in a van, and I heard the kids mocking the whole experience of going down to the jail. They're tougher than the guys in jail.
Having said that, what do I think about deterrence and the fact that kids are scared of prison? Many kids are not scared of prison, because they don't understand it. They only understand it when they have been in it for periods of time and they are pros, but before they get there, it is like the kid can drive a hundred miles an hour and never get in an accident. He doesn't have to wear a helmet on a motorcycle. He's not old enough to understand the seriousness of his actions.
That's what we're talking about. It's a different mindset for teenagers, for criminals who have been in jail for a period of time and then the hardened gang person for whom it's a career. I'm talking about really three different levels that we're addressing here. It's not simplistic or something that a single bill will answer. I'm just focused on partially.
I think it's a good bill in part, but the other part is it's not balanced. It's just not balanced. Unlimited amounts of money are spent on the imbalance.
Senator McInnis: Mr. Auty, you say it's not balanced, and you mentioned earlier about pilot projects, and you said, in particular, that there is no structure.
Mr. Auty: No, there's not.
Senator McInnis: Who would be responsible for the structure? Are we talking about education, which is, of course in the provincial domain? The federal government transfers considerable money with respect to education and community services. What would you be talking about in terms of structure?
Mr. Auty: I'm sure you probably know more about the actual creation of a structure than I do. I will say this from a layman's position: The federal government has great intent. We don't have a national mandate for education. That's a provincial mandate. We know that.
When the federal government starts putting money into schools and Boys and Girls Clubs and so on, what they're doing is getting involved with education. That's not their mandate, but that's how they're getting around it and getting involved very positively.
When they have a pilot program that's utilized in provincial schools across the country, it has been their idea, their seed program, but there is no structure to carry it forward.
In the conversation I had with the deputy minister in Ontario last spring at the end of our program, which was a $4- million federal program, tremendously successful, Grade 3 kids, there was no structure that we could say — we all wanted to do it. When the deputy calls up somebody in the Justice Department who had funded this thing to try to come up with a solution, "How can we do it, because we want to help out with several hundred thousand dollars?" they were simply not there. So you tell me.
There needs to be a structure that's there where successful federal programs can work in a cooperative fashion with the provinces' ministries of education particularly, because the ministries of education, the schools for them to get involved in these things, they're the ones where you're going to change attitudes in the schools, but we don't have the structure. Do you see what I mean?
Senator McInnis: Yes. We don't have the jurisdiction either. Education is —
Mr. Auty: Provincial. Absolutely.
If the government is to say, "We're going to put money into crime prevention, so what we'll do is we'll designate $4 million that will go to a dedicated program that will be ongoing, picked up by, we'll do a discussion with the provinces — with a province particularly, and carry it out. The purpose of this is that if it's successful, you'll carry it on." So there will be discussions with the ministers — I'm blue-skying this —
The Chair: We're over time now. Mr. Auty was on a roll there, and I hate to cut him off. It's very interesting, informative and helpful to the committee in its deliberations. We thank you all for being here today.
Members, tomorrow we meet tomorrow at 10:30 a.m. to continue our deliberations on Bill C-394, and we have the Canadian Police Association, the RCMP, the Criminal Lawyers' Association and the Aboriginal Legal Services of Toronto appearing before us.
(The committee adjourned.)