Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence for February 22, 2012
OTTAWA, Wednesday, February 22, 2012
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 9 a.m. to give consideration to the bill.
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: Good morning, colleagues. I am John Wallace, a senator from New Brunswick and chair of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we will continue with our detailed study of Bill C-10. During the past three weeks, we have been studying various aspects of the bill. That has continued this week in all-day sessions and will continue until the end of this week. As we continue this week, we have separated the various topics that are included within Bill C-10 and we are addressing them separately each day.
Today the issue before us is contained in Part 4 of Bill C-10, and it involves the Youth Criminal Justice Act.
By way of very brief summary, Part 4 of Bill C-10 proposes to amend the Youth Criminal Justice Act in a number of ways, including emphasizing the protection of society as a fundamental principle of the act and facilitating the detention of young offenders who offend or pose a serious threat to public safety. More particularly, Bill C-10 proposes to establish specific deterrence and enunciation as sentencing principles; to expand the case law definition of "violent offence " to include reckless behaviour that endangers public safety; to amend the rules for pre-sentencing detention to facilitate the detention of young persons accused of crimes against property; to amend the rules for pre- sentencing detention to facilitate the detention of young persons accused of crimes against property that are punishable by a maximum term of five years or more and those with a history of outstanding charges or findings of guilt; to authorize the court to impose a prison sentence on a young person who has previously been subject to a number of extrajudicial sanctions; to require the Crown to consider the possibility of seeking an adult sentence for young offenders 14 to 17 years of age who have been convicted of murder, attempted murder, manslaughter or aggravated sexual assault; to facilitate publication of the names of young offenders who have been convicted of violent offences; to require police to keep a record of any extrajudicial measures imposed on young persons so that their criminal tendencies may be documented; and to prohibit the imprisonment of young persons in adult correctional facilities.
Honourable senators, we are pleased to have with us today our first panel to consider this matter. We have representatives from three different organizations. First, from the Royal Canadian Mounted Police, I am pleased to welcome Michael Lesage, Acting Director General, National Aboriginal Policing; and Beth Rolston, National Crime Prevention Services. From the Canadian Association of Chiefs of Police, we have Chris McNeil, Deputy Chief of Operations, Halifax Regional Police. From the Toronto Police Service, we have Detective Steven Nevill, Youth Services.
Ladies and gentlemen, we are pleased to have you with us today. We are anxious to hear what you have to say about this topic and have a chance to ask questions of you.
I will begin with opening statements.
Inspector Michael Lesage, Acting Director General, National Aboriginal Policing, Royal Canadian Mounted Police: Mr. Chairperson and members of the committee, thank you for the opportunity to speak with you today on the subject of youth policing.
In 1999, the RCMP identified youth as a strategic priority for the organization with the objective of reducing youth involvement in crime, both as victims and as offenders, promoting youth engagement, supporting long-term responses to youth crime and victimization, and focusing on risks and protective factors, prevention and early intervention.
To do this, the RCMP National Youth Services supports front-line officers who work with youth by providing training, policy and advice, resources and activities for intervention, diversion, crime prevention and enforcement. However, we cannot do it alone. The RCMP believes that long-term prevention of youth crime and victimization can only be accomplished in partnership with the community. We work with community partners to identify opportunities to engage youth and work together to address the root causes of crime so that young people are less likely to become victims or offenders.
I would now like to take a few moments to highlight some examples of the RCMP National Youth Services initiatives. As I mentioned, many of our programs focus on early intervention. The goal is to reduce risk factors before crime happens. The National Youth Intervention and Diversion Program pilot project is just one example of this. The program raises awareness of the importance of risk in decision making and supports programs for at-risk youth that help reduce recidivism.
It is designed to enhance the ability of front-line RCMP officers to identify at-risk youth and refer them to community programs for assessment and treatment, contribute to the reintegration of youth with substance abuse problems into the community, and foster police community partnerships to address risk factors associated with youth criminality.
The RCMP provides police services to approximately 5,000 schools within our jurisdictions across Canada. By actively engaging school administrators, students and parents, the National Youth Officer Program aims to develop positive relationships between the RCMP, youth officers and the communities they serve.
The RCMP recognizes that specialized skills are required to work with youth at risk. For this reason, the RCMP youth officers are provided with training that gives them the knowledge and skills required to deal with the many issues facing youth today.
Keeping in line with our other programs, RCMP youth officer training focuses on crime prevention, identification of risks that lead to youth crime, forming partnerships with community stakeholders in areas such as mental health and probation services, rehabilitation and reintegration of youth who have been involved in the criminal justice system into society, and proper legal procedures to guarantee youth their rights and freedoms but pursue meaningful consequences for their offences.
The following is an example of how the RCMP's youth officer training benefits our communities.
One of our officers in Keremeos, British Columbia, who has recently taken the training, directly attributed to the course her current involvement in the local youth substance addiction centre. The officer has now gained the assistance of another RCMP member to mentor and provide leadership to youth involved with this program. Feedback from the local centre has confirmed that they are very pleased with the support they are receiving from their local RCMP detachment.
Education and awareness of both youth and front-line police officers is another important component to the RCMP's youth strategy. Through the Youth Officer Resource Centre, YORC, the RCMP gives police officers access to tools they need to communicate with youth.
YORC is a website that offers age-appropriate lesson plans for police officers to deliver in schools and helps them engage youth in their communities. The YORC lesson plans cover a variety of topics, including drug awareness, relationship violence, suicide prevention, bullying and Internet safety.
The RCMP believes that youth have valuable solutions to offer and should play an active role in their communities. That is why, in 2011, the RCMP's Youth Engagement Section organized and led two youth leadership project development workshops which took place at the RCMP Academy, "Depot " Division, in Regina, Saskatchewan.
During the workshops the RCMP officers and youth from across the country discussed the root causes of issues such as drug abuse and bullying and the impacts of these behaviours on individuals, schools and communities. The youth, along with their RCMP mentors, returned home with a plan to address the youth crime and victimization issues they identified in their communities.
The team's progress can be followed on the RCMP's DEAL.org website, which is another important initiative for youth. The site is run by youth, for youth. DEAL.org operates on the principle of crime prevention through social development. It continues to grow in popularity as it provides youth with valuable tools and resources to help them deal with various issues affecting them.
DEAL.org is also home for the RCMP's youth advisory committee. The youth advisory committee provides the RCMP with the youth perspective on crime prevention and provides us with the opportunity to develop innovative policing approaches to address youth priorities and tailor its service to meet their distinctive needs.
In closing, I would like to thank you for allowing me the opportunity to outline just a few examples of how the RCMP is working to reduce youth crime and victimization in Canada. I trust it has provided the committee with insight as to how important an issue youth policing is to the RCMP. I would be pleased to answer any of your questions.
The Chair: Thank you, Mr. Lesage.
Ms. Rolston, do you have anything to add to the opening statement?
Constable Beth Rolston, National Crime Prevention Services, Royal Canadian Mounted Police: No, Mr. Chairman. Thank you.
The Chair: We will turn next to Deputy Chief Chris McNeil from the Canadian Association of Chiefs of Police.
Chris McNeil, Deputy Chief of Operations, Halifax Regional Police, Canadian Association of Chiefs of Police: Good morning. Thank you for having me here to speak to this bill and, in particular, amendments to the Youth Criminal Justice Act, YCJA. As you are aware, in addition to my role at the Canadian Association of Chiefs of Police, CACP, I am a deputy chief with the Halifax Regional Police.
I will start by saying the CACP supports the YCJA's more meaningful approach to youth justice in its effort to reduce the number of youth in contact with the formal system. This is why the police community in Canada has been at the forefront of championing such initiatives as restorative justice. In addition, the Canadian Association of Chiefs of Police believes that the YCJA is substantially good legislation, but we have had two long-standing concerns regarding the YCJA and its original implication.
First, the youth justice system envisioned by the YCJA needs to be supported with comprehensive services. These services extend well beyond the criminal justice system, to education, social services, health, mental health and child welfare. Unfortunately, where these services do exist there is insufficient capacity.
One of the goals, arguably the primary goal, expressed in the preamble of the YCJA is for a youth justice system that reduces the overreliance on incarceration for non-violent young persons. Accepting that there has been overreliance on incarceration, it is simplistic to assume that by changing the legislation and requiring more young people to remain in the community we have solved the problem.
The CACP believes that at the heart of the problem of overreliance on incarceration were insufficient services to support young people in conflict with the law. The YCJA was implemented without a corresponding enhancement of youth services. Although new funding accompanied the implementation of the YCJA, it was directed toward enhancing youth justice programs and services. Therefore, services and supports such as mental health, child welfare and addiction services were not sufficiently enhanced in preparation for the enactment of the YCJA.
Young people remain in the community without the necessary support to overcome the very social conditions that brought them into conflict with the law. In such circumstances, their incarceration is inevitable. Until the question of services for youth is addressed, we will continue to struggle to achieve the youth justice system to which we aspire.
Although the goal of reducing over-incarceration is laudable, the YCJA is inadequate to deal with a small group of incorrigible young people who pose a risk to public safety. It is well accepted that the primary principle of criminal law is protection of the public. The YCJA, as criminal law, steps away from this principle and gives protection of the public a lower priority.
The YCJA is highly prescriptive legislation with a clear presumption against detention in most situations. It limits the use of custody to violent offences. Violent offences are not defined in the current YCJA. The Supreme Court of Canada interpreted what constituted a violent offence very narrowly, defining it as an offence where a young person causes, attempts to cause or threatens to cause bodily harm.
The definition rejects the notion that behaviour that could endanger or likely endanger the public would attract detention under the YCJA. This left out a broad range of risky, dangerous and thoughtless behaviour that endangers the public but that is not a violent offence, such as repeatedly stealing cars and driving them in a reckless and dangerous manner.
It is little wonder that the public confidence is shaken when the criminal justice system seems powerless to intervene when young people are repeatedly engaging in behaviour that endangers their life because this behaviour is not deemed legally violent.
The interpretation of the YCJA requires a purposeful approach, and any interpretation of "violent offence " is shaped by the declaration of principles and the purpose and principles of sentencing. Without raising the profile of public safety in those provisions, a more balanced approach to public safety will not be achieved by simply expanding the definition of violent offence.
In 2005, by resolution, the CACP called for amendments to the YCJA to make it clear that protection of the public is a primary principle in interpreting the YCJA and to allow for young persons whose criminal behaviour is posing a danger to the public to be committed to custody.
This bill has addressed those concerns while still maintaining provisions in the YCJA that balance the need for public safety with the goal of reducing the overreliance on incarceration for non-violent young persons. We believe this to be an appropriate balance.
Coming from Halifax, I would be remiss if I did not acknowledge the extent to which my remarks have been influenced by the tragic death of Theresa McEvoy, a Halifax mother of three who was killed instantly when her car was struck by another car. The car that collided with Ms. McEvoy had been stolen, ran a red light and was being driven at an extremely high rate of speed by a 16-year-old youth named A.B. A.B. had been released from custody two days earlier despite 38 outstanding criminal charges for the same behaviour.
As you are aware, a public inquiry was held into the death of Ms. McEvoy by the Honourable Merlin Nunn. His report made a number of recommendations regarding the YCJA and youth justice in Nova Scotia. I understand you will hear from Justice Nunn, so I will not dwell on his findings. I am pleased you will be able to hear his perspective.
In my view, the death of Theresa McEvoy and the inquiry that followed highlighted two fatal flaws in the YCJA and its implementation, which I have outlined above. This legislation addresses one of them. The other is worth repeating. Legislative changes will not bring about the youth justice system we desire unless there is a corresponding investment in the services for youth.
The CACP urges all levels of government to ensure adequate funding for services to assist youth with the underlying problems that bring them into conflict with the law.
I know others are worried that these amendments to the YCJA will open the gates to custody too far. I cannot agree with that. I believe these are targeted amendments designed to address the small number of offenders who are now falling between the cracks. In that regard, I would like to leave you with the words of Justice Nunn. He said:
It would be wrong to allow our judgment to be so coloured by the successes of the YCJA that we are blind to its failures. AB was one of its failures. His same criminal behaviour went on, without intervention, until he caused Theresa McEvoy's death. AB's pattern of repeat offences, however, is not unique. There may be as many as 100 young persons at any one time acting as repeat offenders in Nova Scotia, with proportionate numbers in other provinces, for whom the act is failing. We cannot sit back and praise ourselves on the nobility of our aims of rehabilitation and reintegration while not actively engaging those most in need of those very aims. The goals of the act are worthy, but some detention, where it would contribute to public safety and still be consistent with the goals of the act, is also worthy.
Stephen Nevill, Detective, Youth Services, Toronto Police Service: I would like to thank the committee for inviting me to appear on behalf of the Toronto Police Service. I have been a police officer for just shy of 30 years, and I currently hold the rank of detective. I work in one of the 17 divisions or stations throughout the city of Toronto. I supervise 13 officers involved in criminal investigations, with six of those officers dedicated to investigations dealing with youth crime, child abuse, sexual assaults and domestic violence. Four of my officers are directly responsible for compliance checks and enforcement of court-ordered bail conditions.
Of those almost 30 years, the last 15 have been spent dealing with young people, both victims of crime and those accused of crime. Those crimes include everything from theft to firearms offences to murder. On a day-to-day basis I note the positive effects of the Youth Criminal Justice Act as well as what I feel are the negatives.
The Toronto Police Service is committed to working with young people in a positive manner, but it is also committed to protecting the citizens of Toronto from repeat and violent youthful offenders.
I will comment on how I deal with repeat offenders who, although given extra judicial sanctions, continue to commit crimes and receive little or no custodial sentence upon their further convictions as well as those who continue not to be held in detention in spite of being released on recognizance numerous times and numerous breaches of bail.
I can comment on four separate young offender cases that I am currently involved with and have brought with me. These, unfortunately, are not the extremes that I deal with. I believe that all known identifiers that would lead to the identity of the young persons being revealed have been removed from my comments. These cases are currently active before the courts and, for that reason, I cannot supply copies of these to the committee. The charges, the extrajudicial sanctions, the releases, the withdrawn charges and the court appearances involved in these four matters are too numerous for me to memorize.
As a police officer, I see the recommendations in Bill C-10 as positive steps to dealing with repeat and violent young offenders and protecting the greater society around them.
Again, thank you for allowing me to be here today.
The Chair: Thank you very much for that, detective. We will now move to questions from committee members.
Senator Fraser: Good morning to you all and thank you for being here.
This is a very important part of Bill C-10, because it deals with young people, so it is very important for us to hear from people who actually do this work.
Chief McNeil, you spoke about the problem of pre-sentence detention and the Nunn report arising out of that tragic case in Nova Scotia. Bill C-10, as written, contains a long and detailed section providing for pre-sentence detention. Does that section, in your view, meet the goals of the Nunn report, if you will, of your force? Are there any adjustments you think should be made to that section as it is now written?
Mr. McNeil: The YCJA is probably the most complicated piece of legislation ever written.
Senator Fraser: Somebody said "impenetrable, " and that is true.
Mr. McNeil: I believe that those amendments are adequate. All of this turns on the definition of "violent offence. " Everything flows back to that. To me it is not so much about changing it as about opening the window slightly more to allow more offences in, and I believe these amendments do that.
Senator Fraser: I will ask about the definition of "violent offence, " then. It has been suggested that it would be appropriate for that definition to include the concept not only that the young person caused physical harm but that the young person knew or should have known that the conduct that caused the harm might or would do so. I can envision a youngster out on a Saturday night throwing a rock through the school window, not realizing that the cleaner is in there, and the cleaner getting hit with the rock although the young person just intended to break the window. Do you see what I mean?
Mr. McNeil: I do, but I do not believe that these amendments are to deal with those types of offences. We are talking about offences where young people engage in very risky and dangerous behaviour. Even with these amendments to the act, you still must, for lack of a better term, climb a ladder to get to custody. You still have to consider, given all the circumstances, whether the young person can be maintained in the community while still protecting the public. The cautions in the act would prevent custody for a crime of that nature.
Senator Fraser: We are not just talking about detention here. The phrase "violent offence " crops up again and again in the bill.
To the RCMP witnesses, one of the difficulties for aging senators is remembering what it was like to be a teenager. Over the years we have received indications from various experts that the concept of deterrence built into the law does not really work with teenagers because they do not think ahead. They do not yet have the maturity to understand fully the nature of consequences, which is what deterrence is all about, internalizing the notion that if I do X, Y will happen to me.
Is that your experience?
Ms. Rolston: I will defer all my answers to my colleague.
Mr. Lesage: This is dealing with higher-risk people. I have no direct experience dealing with the knowledge of consequences in these matters.
Mr. McNeil: I accept all of that. There are two things we have to know about deterrence. First, this is a passive amendment. It is not like many of the provisions of the act that are directive. Rather than saying "you shall consider this, " it says "you may consider deterrence, " and in some circumstances that may be appropriate.
We often underestimate the capacity of young people to understand their actions. As police officers on the ground we know that they are very aware of the impact of the law. They are aware that a youth will not receive the same consequences for having a gun as an 18- or 19-year-old will receive. To suggest they are not aware of that is rather naive. Young people today are much more sophisticated than we give them credit for.
Senator Runciman: Thank you all for being here today.
Detective Nevill, I am sure you are familiar with the Toronto Star series last year by an individual who spent four months in the Jarvis Street youth court. On October 30, David Bruser said the Toronto Star found:
. . . kids who committed serious crimes got little or no jail time; repeat offenders whom the court failed to rehabilitate; and youth charged with serious, violent crimes granted bail too easily and released to the street.
After spending four months there, the Toronto Star found repeat offenders getting probation for robberies with weapons and for violent sexual assaults. They found that the Youth Criminal Justice Act handcuffs the courts from even compelling offenders to attend court. They recounted one case where there had been 29 court dates at which the accused, charged with robbery and assault causing bodily harm, would show up sometimes and not others with no valid reason, but the court could only issue a discretionary bench warrant. An adult would be in pretrial custody, but that could not be done in this case because of the provisions in the YCJA. This points to a youth justice system that is out of step with reality. You work in that system. Is it broken, and do the reforms in Bill C-10 at least start to fix it?
Mr. Nevill: I do not think the YCJA is broken. As mentioned by my colleagues, I think it needs the changes reflected in the clauses of Bill C-10. They would start to address those.
As an example of that, I deal with the 311 Jarvis courts on a day-to-day basis with cases I have down there. One of the cases I brought is a 16-year-old male; he is now 16. He was convicted of robbery, threatening bodily harm and possession of property obtained by crime. All of those charges were withdrawn when he completed EJS, extrajudicial sanctions. He was then charged and convicted of obstructing a police officer and failing to comply with a recognizance. That means he was out on bail at the time, released by the courts, committed another offence that breached those conditions of his bail and was convicted. He received a $1 fine. He was then convicted of another fail to comply with recognizance, where again he breached his bail and again received another $1 fine. That youth currently has seven cases. In one case, he is charged, oddly enough, with failing to comply with his recognizance, possession of marijuana, failing to comply with his youth probation. He is now again on charges of robbery, using an imitation firearm to commit an indictable offence and threatening bodily harm. He was charged again with drugs and possession of marijuana. There are also charges of failing to attend court. He was also charged with theft from mail and theft under $5,000. He is currently on the exact same bail in each case. He was released on the exact same bail each time. We call it a global bail where the case is just continued to put over, the charges are added on, and the party is released.
You were speaking about deterrence. At some point, I think they should understand that if they commit the offence, there are some consequences, but, as was stated, I think they start to understand that deterrence is not something because they are let out every single time. The three other cases I have speak to that as well.
Senator Runciman: Another element of this bill has been criticized by some, and I am somewhat familiar with this as I have three front-line police officers in my family. I know their frustrations in dealing with some of the provisions of the YCJA, and especially the issue of record keeping and extrajudicial measures. Perhaps all of you could speak to this issue and what you see is the importance attached to this change to the act and how it can improve public safety.
Mr. Nevill: In Toronto, we keep our own records. Of course, sometimes those records are not available to other services, unless they are kept in a central facility, which I understand is being addressed in this bill.
For us, extrajudicial measures in Toronto may be a youth justice circle where we deal with a bullying issue or something, or what we consider a minor theft, where the person admits and is willing to sit in a circle with other colleagues and talk about what happened and make them understand the impact of that crime. We also have contact cards where you may have a youth encountering the first time for, let us say, shoplifting, where they are cautioned, but it is kept on record that they were cautioned should they do that again, but those are kept only in Toronto.
Senator Runciman: Most police services do not do that.
Mr. Nevill: Exactly. We are trying to right now establish that for the Greater Toronto Area, Peel Regional Police, York Regional Police and Durham Regional Police we can all access each other's records, because we encounter those parties over and over again. At a federal level, it would be nice if there were a central facility where this information was kept so that I in Toronto could know about a youth who moved from Alberta or Halifax.
Senator Runciman: Could you be in violation of the current act by doing that? Are there any concerns about privacy issues? There is no legislative mandate to do what you are doing.
Mr. Nevill: I think the information is kept private. Again, it is not released to the public. It is available only for law enforcement personnel for the purposes of investigations.
Senator Runciman: I am glad you are doing it, but I just wonder about your ability to do it. This act will change that.
Mr. McNeil: We also keep records of extrajudicial sanctions and cautions. The act does not prevent you from keeping them. It sort of tells you what you cannot do with them. You cannot disclose them.
We keep them as well. They are not the most dominant or most important part of this legislation. Access to them would identify when possibly a youth should be treated more formally than maybe they are.
Senator Cowan: Thank you for your contributions this morning, and thank you for the good work you do every day. I have a couple of comments I might throw out and have our guests comment on them as they wish.
The first one had to do with a comment Inspector Lesage said in his opening statement, that the RCMP believes that long-term prevention of youth crime and victimization can only be accomplished in partnership with the community. I am speaking now particularly with respect to the Aboriginal community. You did not speak specifically to Bill C-10 in your remarks, but we have heard from Aboriginal leaders about the concern that they have about Bill C-10 generally and this section particularly with respect to the overrepresentation of Aboriginals and Aboriginal youth in our youth justice system and in our prison institutions. Are you concerned? What are your comments with respect to the impact of this bill on Aboriginal youth particularly, in light of your comments that you believe that you can only accomplish this in partnership with the community? We have heard that some members and leaders in the community have expressed these concerns.
The second point had to do with the effect of the changes with respect to publication bans. No one addressed that, but I would welcome any comments that you have on that.
The third point had to do with the balance that Senator Fraser referred to earlier, which is the deterrent effect of longer prison sentences or penalties generally and whether it is really the fear of the penalty that might inhibit criminal behaviour or the fear of getting caught that is the greater deterrent. That leads, perhaps, Deputy Chief McNeil, to your points about the need for greater support services and that simply passing legislation, as good as it may be, is not the sole answer and we need to put a lot of resources into the community and its support of the legislation we passed. I would invite comments from the panel of witnesses.
The Chair: Thank you for those questions, senator. Just before responding, if you could, those are three questions for four people. As you know, we have another 55 minutes before our next panel. If you could keep your responses as concise as possible, we would appreciate that.
Mr. Lesage: I will address the first question. As government officials, we are not in a position to comment on legislation. It is our responsibility to enforce it if and when it becomes law. However, the RCMP works in many remote communities with vulnerable populations where the only detention centre for youth is the local RCMP detachment, with the impact on resources to guard the youth and provide meals and other necessities until an individual appears in court. Many detachments have a limited number of detention cells, which presents a challenge to the ability to keep youth separate from the adult population. Pretrial detention may also require these individuals to be flown to youth detention centres, which once again would impact RCMP resources.
On increasing levels of incarceration of young people with a disproportionate effect in these vulnerable communities, generally speaking, Aboriginal youth are overrepresented in the corrections system and will be the group most affected by introducing the principle of deterrence.
Mr. McNeil: When we speak of changes to the act, we do not talk about longer sentences or sending kids to custody for longer periods of time. What Justice Nunn and A.B. discovered in Nova Scotia was not so much that but that offending behaviour could go on and on without any ability to interrupt.
For example, young people understood at the time that if you did not plead to a case, you could just keep going and you would be released because you had never had a conviction. As long as you did not plead, you could rack up the charges — 45, 50. It is a concern in the sense that when young people know that that is not occurring, that nobody is going to stop them, their behaviour will go on and on. As Justice Nunn said, sometimes you need to intervene and catch kids up short.
We do not see that as meaning sending them to jail. We see that as stabilizing them in some sort of custody and reintegrating them into the community where they would go. It seems irrational to me a piece of legislation that says that young people are not capable and do not have the capacity to understand what they are doing, so they should not be treated with a penalty, and that somehow we think by reducing it to the community, they will understand and have the capacity to stop stealing cars and driving them dangerously. Therefore, it is counterintuitive.
Second, I will repeat that I have a concern when I hear people say "releasing into the community. " There is a myth out there that there is this overwhelming sort of infrastructure of community out there, that there are these services, and that mental health and all of these things exist, when they simply do not. As an educated parent and as a person of profile and influence in my community, I was confronted with what it was like to try to obtain for a youth mental health services. As a person with influence and education, when I knocked on the door, the door did not get opened.
Understand that most of these kids come from vulnerable communities, often suffering from racism, poverty and all the other social conditions that go with that. It is unreasonable to assume that by simply abandoning these kids to that community that their offending behaviour will change. I come back to services, because I believe that the real answer to youth justice will not be found in the youth justice system at all and will not be found in the criminal justice system; it is found outside of that, in the community.
Mr. Nevill: I can speak in relation to the publication of identities. The act, as it is now, is only used in certain cases. A youth may commit a serious violent offence. We can make application to a judge and release that information for a limited amount of time. The bill seems to shift the onus onto the Crown to ask for the authorization, and it makes it a little easier. Again, I think it would have to be taken on a case-by-case basis and very cautiously.
As you know, in Toronto we run into a lot of firearms offences involving young people. Our concern there is the protection of the public, if that person is still wanted and identifiable.
Senator Angus: Good morning, gentlemen. Thank you, madam.
Just quickly, Chief McNeil: I am not familiar with all the facts of this horrible case, but what happened to A.B.? Was he killed in that accident too? What is up with him now?
Mr. McNeil: No. Unfortunately, A.B. is now in the adult system, and his life has continued to spiral out of control.
Senator Angus: I am interested in the application of adult sentences to younger offenders. I understand that in 2008 the Supreme Court found that the present presumption of subjection to an adult sentence was a violation of section 7 of the Charter. Does this law, Bill C-10, correct that, in your opinion? What are the implications?
Mr. McNeil: In some ways I am a simple beat cop from Halifax, and the constitutionality of some of these questions is obviously going to be litigated or discussed. I do not think Bill C-10 sways too far in that regard.
Senator Angus: It does not correct the problem?
Mr. McNeil: That is a complicated question, and I do not think I am in a position to say whether or not it would withstand constitutional scrutiny. These are modest amendments to the act, so the act as a whole is still pretty consistently in favour of not sending kids to custody and ensuring that their rights are protected. Therefore, I do not think this act sways too far away from that.
Senator Angus: Of course, what we are talking about here is the ability to impose an adult sentence on a young person, age 14 or more, convicted of an offence other than murder, attempted murder, manslaughter or aggravated sexual assault. Just so the public understands, let alone all of us, I do not know whether you want to elaborate a little more. Under that Supreme Court case, it became pretty much that you could not do it, correct?
Mr. McNeil: I understand that what was struck down was the presumption of those, that each case would have to be decided on its own merits. Whether an adult sentence was appropriate in all the circumstances could not be presumed; it would have to be considered on its own merit.
Senator Angus: Chief Nevill, did you want to comment? I saw you kind of raising your eyebrows there.
Mr. Nevill: No, not at all. Thanks for the promotion. I do not think that is going to happen. I will stick to being a detective.
The change in Bill C-10, again, the onus shifts on who asks and who has to be satisfied in an application for an adult. I believe the onus shifts back to the Crown, and the Crown may now consider. However, again, I think it would have to be taken on a case-by-case basis if it were brought in. There would probably be some challenges to it. The onus has shifted a little bit in Bill C-10; however, as the deputy chief says, it has not swayed that much from the original.
Senator Angus: If I understand well, to fix the "problem, " one has to basically find a way to get around the Charter. This is, as you say, very complicated, so the bill really does not go far enough; that is the sense I am getting.
Mr. McNeil: No, I would not say we would get around the Charter. I would say it is often a challenge to craft language and legislation and we do not know how it will be interpreted years down the road, consistent with the Charter. Sometimes you can just make your best efforts.
Senator Angus: The RCMP?
Mr. Lesage: We are not in a position to comment on the legislation. It is our responsibility to enforce it, if and when it becomes law. We do believe that the legislation in any form is only one of several tools needed to address youth crime. We must also focus on prevention, intervention and diversion.
Senator Angus: You have read that out a couple of times, and we understand that. However, we did ask you to come here to help us understand the legislation, whether it will provide better tools to our law enforcement people — which you say is your duty — to do their job and to act in a way that makes our communities and our streets safer. I have a problem, and I am sensing my colleagues do too, with the approach you are taking this morning, sir, with all due respect.
The Chair: Senator, if I could. We have invited the witnesses to appear. They can respond in whatever manner they think is appropriate.
Senator Angus: I agree.
The Chair: I personally feel no unease, and let us continue with the questions.
Senator Angus: I am done with my question.
Senator Jaffer: I have a number of questions, and I will try to put as many as possible in the first round.
I hear what Detective Nevill is saying about the repeat offences. I also have two people in my family who work in the RCMP, and I know the frustration. I would like to hear from all of you, if you are able, in your areas, to talk about what percentage of the youth are these violent, repeat offenders, of all the young people with whom you work. I will start with that. Then I have another question.
Mr. Nevill: I apologize; I did not bring any statistics of arrests and how they are broken down into categories, whether it is a violent offence or a non-violent offence.
Senator Jaffer: That is fair. However, are 50 per cent of youth repeat offenders? I will not hold you to the number.
Mr. Nevill: If you are not going to hold me to it, I can only speak for the division I work in throughout Toronto.
Senator Jaffer: That is good, just to get an idea.
Mr. Nevill: I would say we have probably a 60 per cent repeat offender ratio.
Senator Jaffer: Chief?
Mr. McNeil: That would be 60 per cent, probably, of the people.
Senator Jaffer: Of the repeat offenders?
Mr. McNeil: The population we are talking about is about 10 per cent. You are talking about a very small percentage of youth. However, when you talk about criminal law generally, you are talking about a very small percentage of the population that actually is causing most of the havoc and involved with most of the crime. Essentially, criminal law is focused on that very small percentage of the population and preventing them from harming the rest of us.
When you talk about youth, it would be a very small percentage. I understand what Detective Nevill is saying; of the group of offenders who come in, 60 per cent repeat, but that group of offenders would be a very small percentage of the overall population.
Senator Jaffer: My preoccupation is in what was said by Director General Lesage, and I would like all of you to comment on it.
Chief McNeill, you said it very eloquently, and that is the issue of mental health programs in the community. You said it beautifully, in the sense of getting the message across.
I am not talking about the person who is found not guilty by reason of insanity. I am talking about people who have mental disorders and behavioural problems. The one thing we have not talked about is fetal alcohol syndrome and children who have inherited this.
You said something that really stuck with me, Inspector Lesage, forming a partnership with community stakeholders in areas such as mental health and probation services. You then spoke about when the youth are detained and where they are detained. Especially in Aboriginal communities, what exists to help youth who are suffering from mental disorders? It is not a big secret to say there are many, many people, and especially youth, who are suffering from fetal alcohol syndrome.
If I can start with you, what programs exist to help these people?
Mr. Lesage: There are programs within the community that the communities have access to, and we as the RCMP work with them to catch them at an earlier stage, prior to their getting into dealings with the police.
Senator Jaffer: Do you think prison is the answer for these youth who suffer from mental disorders?
Mr. Lesage: My opinion is no. They should be dealt with by the appropriate agency.
Senator Jaffer: Chief?
Mr. McNeil: If you talk about youth offending behaviour, you can trace it back to undefined addiction, mental health issues or some other social condition that puts these kids at risk, kids who do not in many cases have a loving adult in their life or a loving adult who is capable of supporting them. Tonight, in Halifax, if a police officer comes in contact with a young person who has committed criminal behaviour and it is clear that that young person has an addiction, I defy anyone to tell me what that police officer could do. I assure you that police officer would choose a treatment facility versus the courts if that option existed. It is not to say they do not exist, because there are people out there doing yeoman's service, but they simply have insufficient capacity. Often by the time kids get involved in them, only the acute get treatment, and often by that point the ones who could get in and be helped are not there. They are simply not there. That is my concern when we focus on the law.
Senator Jaffer: When you say simply not there, do you mean the services? I did not understand.
Mr. McNeil: The services are there but not in any capacity. Police officers at three o'clock in the morning would not be able to refer that person, even if that is what they believed wholeheartedly they wanted, and they are left with few options.
If we abandon these kids to the community, eventually they will commit a crime that does attract criminal sanction.
The Chair: Detective Nevill, do you want to comment on this?
Mr. Nevill: No, I think it has been well addressed by the deputy.
Senator Lang: Mr. McNeil, when the question was put to you whether or not the system was broken, you said it was not, and I find it hard to believe that it is not in view of the fact that you gave us a particular case that is before the courts where this individual is still out on the street, I understand, with numerous charges and charges over time adding to what he or she will face in the courtroom eventually.
There is something seriously wrong. I want to say that you have my sympathy. You must have a very difficult job.
I would like a comment perhaps from the witnesses in respect to the definition of youth. It seems to me, compared to 30 years ago, that young people are maturing more quickly physically, in quite a few cases mentally as well, for a number of reasons. Now we were dealing with young people at the age of 12 where maybe 20 years ago those same children you were dealing with were 14. Are you finding that these young people are much more sophisticated, much more capable and much more understanding of the situation, which makes your job that much more difficult?
Mr. McNeil: Certainly, kids are exposed to a lot more things than we were exposed to. They are more sophisticated in ways, but I do not think they are more mature. In some ways, they can have very streetwise smarts and in other ways be very naive. As a parent, I have an 18-year-old son; a year older I was entering the police force, and his level of maturity is certainly not there. Is he aware of many more things in the world? Certainly, he is, and there are way more things coming at them. It is a very difficult thing for young people because the whole world is open to them. It is not that little neighbourhood I lived in. In some ways they are more knowledgeable, but I am not sure they are more sophisticated, particularly about broader questions of social responsibilities.
Senator Lang: I just want to proceed into one other area. We all have concern for the victim. What concerns me right now is sentencing. These young people are being charged, are not dealt with, and are then going back out on the street the following day. Now that they have broken into your house, they are eligible to break into my house. Sometimes they are not caught. They carry on a series of offences, and they are not even charged for those. They eventually get caught as time goes on. Subsequently, you have this crime spree that is allowed to go on by the same individual, and that has to be of concern to the general public and public safety on that aspect.
That brings me to another question. The social agencies that we have put in place, whether they be provincial or federal, are not working to the degree that they should. There is something wrong somewhere. Obviously, these young people are getting some attention, perhaps not enough, but I would like to put something to you that I feel could be an alternative, and that is the cadet movement in Canada that provides discipline. It provides a program that is in place that puts these young kids in a situation where they can be taught things that they obviously are not getting taught at home.
Have you ever explored that as a possibility in respect of trying to redirect these kids into an area where there is a program that other kids the same age are involved in and volunteer to do, so they get that exposure?
Mr. McNeil: As a parent who has a young man in cadets, I would extol the benefits of cadets. Often the challenge with some of the young people that we are talking about is stabilizing them in a way where they could actually engage in any meaningful activity structure or otherwise. Often they cannot fit into structured activity. Just getting them in the door, some, yes, but often work needs to be done to just get them to be able to partake in an activity like that.
Mr. Nevill: Not so much as a program like that, but in Toronto there is the privately funded ProAction. The funds that they obtain from the corporate community are available to Toronto police officers to develop programs to work with at-risk youth, specifically for youth. I have participated in one for the last five years, a soccer camp. The idea, again, is to bring some of these young people that we might see on that cusp of maybe moving into crime and working with them. It is surprising that they ask questions and they cannot believe we have families, we have time off, we have all these things, because for many of them the only exposure they have had is when the officer in the blue uniform shows up and takes someone away.
These camps are usually about a week long. I have been doing one with a local high school in our division for the last seven years. It is a hockey camp. It is all police officers, usually on their own time, who come. The funds for the rink and the uniforms are paid for through this ProAction. It is an application we make. Two officers in my office specifically ran a steel drum band mentoring program throughout the entire summer last year.
We try to use a number of those. It is not so much formal, but it is an application. I can tell you those go on day to day throughout the city. I have seen golf and basketball tournaments. I cannot remember the name of the program, but there is a camp that one of the officers has set up where there is week-long canoeing and all those things.
There is some of that in place, although it is not as formal as you might be suggesting.
Mr. Lesage: The RCMP has a number, but they are community initiatives. We have the Aboriginal cadet corps in a number of our provinces, in Saskatchewan and Alberta for sure. We also have the summer student program where they go for training, so there is interaction with the RCMP in our training academy prior to their becoming summer students. We do have programs like that across the country, but it is definitely community-specific.
Senator Baker: I would like to congratulate the witnesses on their presentations. I have an observation that deals with discretion on the part of the police officer because the police officer is the person who takes the youth into custody.
As has been pointed out, 60 per cent — I think that was the figure used — of those persons who have violated the law somehow then violate another law or break a condition of release, either recognizance or a condition of release. As far as discretion is concerned, there are some conditions of release in the Criminal Code relating to certain matters, but, of course, conditions of release are a creation of the court. Two of the most common ones used are not to associate with anyone with a criminal record and not to be in a place where alcohol is present or be in close proximity to alcohol.
Ten per cent of Canadians have criminal records. That is counting men, women and children. Look at the prevalence of alcohol. To me, for some of these youth not to break a recognizance or a condition of release, they would have to move to another city. I see those cases time and time again, or read disclosure time and time again of where a young fellow is walking down the street with another fellow who has a criminal record. The police officer knows there is the condition of release, namely, do not associate with someone with a criminal record, and then, of course, the youth is taken to jail.
Is there any discretion in the system as to your operation? Then again, I guess you just have to follow the law and carry out the law as laid down by the judge when that person was released. Is that the answer, or is there discretion?
The witnesses do not have to answer that question, chair, if they do not wish it.
The Chair: You asked it, and they do not have to answer it?
Senator Baker: No, they do not have to answer it. It is discretion. We will give them the option.
Mr. McNeil: I will always answer a question from a fellow Atlantic Canadian. The YCJA takes away, in many ways, officers' discretion. It says the opposite. It says you must consider whether a caution would be appropriate; you must consider whether or not extrajudicial sanctions are appropriate. In many ways, you are forced to consider your discretion with a young person.
Often those conditions are placed, and the one that would be the most significant in my community is curfew. Curfews allow us to manage the behaviour of people in the community, if they are in and we check that they are in.
However, it has been my experience that those conditions are applied and should be applied. It is not what the officer does with them; it is when the conditions are imposed. Conditions of alcohol should be imposed when alcohol is at the heart of the problem. If you associate with a gang of young criminals, you should be on a condition not to associate with a gang of young criminals.
They should not be arbitrary; that would be a mistake. The courts have said the conditions must have some reference to the offending behaviour. In my view, if the offending behaviour is associated with those things, we would enforce them because we are trying to manage their activity in the community.
Senator Baker: Two of your standard conditions of release are the following, and I am quoting exactly: Do not associate with someone who has a criminal record, and do not be in a place in which alcohol is served. Those are standard release conditions. A young fellow would have to leave the community.
Mr. McNeil: They are appropriate when the underlying activity is associated to those things. They are not if it is not associated to them.
Senator Baker: You use your discretion whether or not to pull that person in.
Mr. McNeil: We use our discretion of what conditions should go on, and the conditions should be associated to the original offending behaviour. If you were intoxicated and you committed an offence, you should be on a condition not to be around alcohol. If you committed an offence with a group of young people engaging, but if you did not, then those conditions should not apply.
Senator Baker: Good answer; he did not really answer.
Mr. Nevill: Could I add something? Again, my dealings are mostly with young people. If we have a young person in custody who will be held and presented to the court for a bail hearing, we talk to that young person quite a bit about their background. We look at whether they are potentially on other charges, what their home set up is, what their school situation is, and we structure the conditions that we request of the courts to that person and to that case.
If a street robbery, as we call it, occurred at a high school, where the victim and the accused in that case go to that school, we make it a condition that the accused not attend at that school, to protect the victim.
We do not give up there. We talk with the school and ask, "When can you get that person into another school or into an alternative learning program? "
As the deputy stated, I do not have very many youth I have put the no-alcohol condition on. It is mostly used in domestic situations where the alcohol was the aggravating factor in the case.
One of the ones we use quite a bit for young people is to attend school each and every day, each and every class, because we are trying to give back to them that educational structure and make them understand that it is now not just the education act saying you are supposed to go to school; this is a judge saying you are supposed to go to school. We specifically have officers in Toronto who are stationed at schools and work with the schools to ensure those are enforced.
As I said regarding the gang association, obviously, if someone is co-accused with another person, we ensure they cannot be with their co-accused young offender, but if they are in what we identify as a gang situation, we will put on that condition of a criminal record.
The officer would have to establish they are aware of the breach. If we can show some history that those two had been together on a prior date, and suddenly here they are together when one of them has that condition, then, yes. If not, often the officers will call in to the detectives and run it by us, and we will say, no, there is a caution at this time, but ensure that person understands as of now, they are in breach if they continue.
The Chair: Thank you for those answers. With the remaining time, we have four senators remaining on the first round.
[Translation]
Senator Dagenais: I will not conceal the fact that I am always very pleased to see police colleagues testify before the committee.
My question is for Mr. McNeil. Police officers are the ones who do the most work with young offenders; at least they are the first responders and the ones who do the field work. With all due respect for my fellow senators, I can very well understand that it is hard at times to imagine what a police officer may see and hear.
In your opinion, as a police officer, to what extent can we attribute the increase in offences, in at times serious cases, to the fact that offenders do not fear the consequences of their actions or of the current justice system?
[English]
Mr. McNeil: I think that young people who are fully engaged in the system are certainly not intimidated by it. This group of offenders who are actively engaged in criminal behaviour, particularly severe criminal behaviour, are certainly not intimidated by the system. In fact, they understand the system very well, and they use it to their advantage.
I have to say that with the level and degree of violence we are now experiencing in my community, 64 shootings last year, often by young people, there are much deeper social questions to what is at the heart of that violence and what is putting guns in these people's hands. That is the bigger question.
To your question, no, I do not think these kids who are actively engaged are at all intimidated by the system. They understand it very well.
Senator Angus: On a point of clarification, one thing you just said, Chief McNeil, is they understand the system, and you also said one of the reasons they are able to stay out and keep reoffending is because they do not plead. I did not understand that. Do they not have to plead, or is this part of the youth regime?
Mr. McNeil: No. As I said, sometimes offenders are very sophisticated on how the system works, and you can exercise delay to your own advantage.
Senator Baker: Or their lawyers.
Mr. McNeil: Young people themselves clearly understand that if they do not plead — often what would happen on the first plea, when they are finally pushed to a wall, they plead to all their cases and they would get out.
However, if they plead not guilty and do not go to trial, then they can go on for some time, and for a young person, today is today and tomorrow is tomorrow, so as long as I put it off until tomorrow, I will keep going. For the rest of us, that can stretch into three, four, five, six or seven months of offending behaviour where they are racking up charges.
Senator Angus: And not having to say, "I am guilty " or "I am not guilty. "
Mr. McNeil: No, they say they are not guilty; they just do not go to trial, and they do not have the charges dealt with.
[Translation]
Senator Chaput: My first question may seem repetitive, but it is for Mr. McNeil.
I would like to repeat that a number of experts maintain that young persons are not yet mature enough to be fully aware of the consequences of their decisions and actions.
If I correctly understood, you said at the outset — and you were very convincing — that young persons were able to assess the consequences of their actions, that they have learned to manipulate the system to achieve their ends.
Is that statement based on your experience?
[English]
Mr. McNeil: That is my experience as a police officer. When the question was asked, young people understand that there are consequences to their behaviour. Do they have the maturity to understand that in a broad sense? Do they have the maturity to understand that to control their impulses? No. I agree with the research.
What I am suggesting is that the sophisticated group of young people engaged in the criminal justice system understand the criminal justice system very well.
My other comment is that just as young people have challenges with understanding that broad sort of consequence, the flip side is that when they are out in the community, they do not have any greater capacity to stop that impulsive behaviour and stop committing very dangerous acts without the ability of some structured intervention. This act works very well for a young person who has a supporting, loving adult in their life. For those who do not, it does not work so well.
[Translation]
Senator Chaput: What would be the best way to stop those who do not have that support?
[English]
Mr. McNeil: I go back to my opening point. The only way we are going to stop the behaviour is by supporting them in the community. We have very structured, intensive services to support young people, often in mental health, but it may also be proper housing or education, all of those activities. Unless we have those services in the community to support these people in a structured environment, they will continue to commit unwanted behaviour, and eventually they will commit a crime that will attract attention.
Senator Frum: Inspector Nevill, I am also from the Toronto area, and all of us from Toronto were very affected by the murder of Constable Garrett Styles last summer. That case had some similarity to the case before the Nunn commission, but it was a case where you had a 15-year-old who, if I am not mistaken, had not been previously arrested by police but was extremely well known to police. He had had taken his parents' car out on numerous occasions, and I think when Constable Styles stopped him, he was potentially even known to the constable.
I do not know if there is anything in Bill C-10 that could have prevented that particular incident. The young man, of course, is now paralyzed, and he is paying a terrible price as well.
I am wondering if you could comment, in terms again of the system working or not. In a case like that, is there something that should have been done that was not? Is there something now that can be done that could not have been done before?
Mr. Nevill: The only problem I have addressing that is that it was a York Regional Police case, so I do not have any information on the background of the young person involved. I am aware, like you, that a vehicle was taken from his parents, that the officer interacted with him and there were tragic results. On any given night a young person might be pulled over if they have stolen their parents' car, and on other nights unfortunately you end up with that scenario. That is sort of the basis of policing.
I cannot really say whether Bill C-10 in this case would have helped, but again, just speaking to the results out of the Nunn commission that led from that, I could see that Bill C-10 would hopefully have had a better effect on that young person not being able to steal that car in the first place. My understanding was his release from custody on other charges was two days prior.
With the case I was talking about, there is a young person I now have on six separate charges, most of them failing to comply with his bail conditions. When we arrested him last Wednesday, one of the conditions we asked for was that he present a new surety to court, in other words someone to look after him, be responsible for him and represent him. His mother said because he is on so many charges, she will not appear as his surety, so his grandmother stepped up and she became his surety. As of as last week, she agreed she was not a suitable surety.
Before I left Toronto yesterday, I got his new bail on my desk, which is the exact same one for the six previous charges, and they have taken his grandmother off and allowed him to be his own surety. By the time I go back this afternoon or first thing tomorrow, I guarantee I will see him again.
If Bill C-10 finally addresses those at some point saying this young person is not going to comply with the conditions of his release by court — and I think he has had enough chances, as Senator Fraser talked about deterrence — at some point that person has to understand that if he breaches the conditions, he will be held. However, this person has learned that if he breaches the conditions, he gets out. In addition, now he gets out with no surety that we can contact to say he is not following the rules.
Senator Frum: Right. The gap that needs to be bridged is between what you know as police officers will inevitably happen and what you are able to do to prevent it.
Mr. Nevill: Yes.
Senator Fraser: Supplementary to that. Bill C-10 would have the following impact: A youth justice court judge or justice may order that a young person be detained in custody only if the young person has been charged with a serious offence or any other offence if they have a history that indicates a pattern of either outstanding charges or findings of guilt. That would cover your young man, would it not?
Mr. Nevill: Yes, because I believe the YCJA first only said findings of guilt. Bill C-10 addresses the actual charges they are on. As the deputy said, they keep going on and not having to plea, so when they get arrested again, there are no findings of guilt. Here they are on all these several separate cases.
Senator Fraser: This would even include outstanding charges.
Mr. Nevill: They should, because most of the charges on which I have this young man are all failing to comply with his bail conditions.
Senator Fraser: That precise case would be covered, I think, by this.
Mr. Nevill: Yes, absolutely. In fact, the four cases I brought would all be covered by this.
The Chair: The changes to the Youth Criminal Justice Act in Bill C-10 would obviously increase the circumstances in which youth could be detained in custody; could extend, in certain circumstances, the period of detention. I know, from the emails and messages that I have received from many people — and I know my colleagues have as well — there is concern, as there is with all of us, about when youth are detained. That is to be, I am sure, the last resort.
The bill, however, as I understand it, focusing on the group of offenders with those increased times and circumstances of incarceration, seems to be targeted to serious, violent offenders, repeat offenders, and offenders whose behaviour under the bill would be expanded to include reckless behaviour. There is an example in Toronto with drive-by shootings where innocent people were killed.
Do you feel that the youth who would be captured by Bill C-10 under this additional period of incarceration, or who otherwise would not be, is too wide? Or is it targeted and focused enough to truly be directed to the most serious, violent, repeat youth offenders?
Mr. McNeil: The really violent offenders were captured always by the YCJA. What was not captured was this group that was dangerous but not considered to be violent. The act captured that, in my view.
It is difficult to read the amendments in isolation. The act still has a heavy emphasis against detention, even in the provisions that state that detention may be available, you still go back to clauses that say it must be last resort, that you must consider whether any other lesser alternative will achieve public safety. It is not a straight path to custody, as has been implied in my view in some cases; you still must start at the bottom and climb the ladder.
The courts will interpret legislation down the road, and to some degree we will only know eventually what that means, but I do believe that these are modest amendments to try to capture that group, and I do not believe there is a danger that, all of a sudden, the floodgates will open.
Mr. Nevill: I would agree with what the deputy said. A young person who commits shoplifting, a theft of under $5,000, will not suddenly end up in jail. However, the cases that I have talked about and the cases that we deal with are the cases that Bill C-10 is addressing. As I said, the structure should change so that it reads along the lines of "protection of the public. " Unfortunately, that must be now considered sometimes the greater good of the youth in these cases because we do have those drive-by shootings. We have people sitting in their home, and, suddenly, bullets are flying through the bedroom. That is certainly part of the reckless behaviour and it endangers the safety of the public. I agree with the deputy's comments.
Mr. Lesage: I believe that this bill is targeting the prolific offenders. From my experience, I think that is where we need to focus on that part of it as well. I have to agree with my colleagues.
The Chair: Maybe I am asking you something that you cannot answer, but of the youth offenders you would be involved with, what percentage would be the serious, violent, repeat offenders? What percentage are we talking about that Bill C-10 would impact?
Mr. McNeil: It is difficult, but of the repeat offenders that are going back — that is, offenders who come into our custody — I would estimate somewhere less than 50 per cent. Somewhere around 40 per cent of the offenders that we would deal with are these repeat, repeat offenders. As I said, the YCJA works very well for a young person who has a loving, supportive adult in their life. One contact with the system in the earliest intervention and we are unlikely to see them again. It is those people without the supports who come back.
Mr. Nevill: I agree with the deputy's comments again. Although I mentioned that 60 per cent figure, as he said, it makes up a small percentage of the young people I deal with. Of those 60, these are the ones that Bill C-10 would directly affect and should affect, in my opinion.
Mr. Lesage: I can only speak for the RCMP. Fewer than one third are violent offenders.
Senator Chaput: On this 50 per cent or 60 per cent of repeat offenders, and the really serious ones, what percentage would or could be Aboriginal youth?
Mr. Nevill: In my area of Toronto, I deal with very few Aboriginal youth at all.
Mr. McNeil: I do not have a community that deals extensively with them, but I do have a community, for example, that is African Canadian. Obviously, African Canadians would be overrepresented in that population. They would not make up the vast majority of them, but there would be overrepresentation by their population.
Mr. Lesage: We do not have specific statistics for Aboriginal youth. However, Aboriginal youth are overrepresented in our corrections system.
Senator Lang: I want to be more specific here about the percentage: It is 60 per cent of what? Are we speaking, on average in any given year, about 200 repeat offenders, or are we talking about 100 repeat offenders? Give us a sense of actual real numbers as opposed to percentages.
Mr. McNeil: Justice Nunn found in his commission that at any one time there were upwards of 100 what he called high flyers in Nova Scotia. If you consider Nova Scotia's population of somewhere around one million people, Toronto would equally have that many more, by population. With some extensive backgrounds, at any one time they are up to 100, these kind of high flyers, as Justice Nunn referred to them, or repeat offenders.
Senator Angus: In the whole province?
Mr. McNeil: Yes.
Senator Lang: There are some allegations that Bill C-10 takes away some of the alternatives for rehabilitation services. I would like to hear your comments on that. Do you feel comfortable that, even with the passage of the bill, you will still have access to all the alternative rehabilitation programs that are out there and maybe even will expand those programs?
Mr. McNeil: Let me be clear: The YCJA does not provide services, and they are simply not there now. I do not think it takes away any of the avenues for rehabilitation; in fact, it is the opposite. I think all the provisions are still there and that you must seek those. The question is, however, seek them where? To where are we referring these kids in order to get those services?
Senator Jaffer: You answered it a bit, but my question was that in your area, in Toronto, obviously, there is an overrepresentation, sadly, of African Canadians. I wanted to hear from Detective Neville as to what is the breakdown.
Mr. Nevill: I do not keep statistics on that. Personally, most of the youth that I deal with are a mix of all ethnicities.
The Chair: Colleagues, that concludes this session. Unfortunately, we had a number listed for the second round, but we are not able to get to that because of time.
I want to thank you so much for the sense of reality that you bring to what happens on the street and how these proposed changes could impact the work you do. We very much appreciate that.
Honourable senators, we will continue with our consideration and study of Bill C-10, and in particular Part 4 of Bill C-10, which concerns the Youth Criminal Justice Act. I am very pleased to have a panel of three distinguished people with us now.
We have Marc Bellemare, who is a lawyer with the firm Bellemare Avocats in Montreal. Also, we have Line Lacasse from Laval, Quebec, and Joanne Jong from Gatineau, Quebec.
Mr. Bellemare, if you have an opening statement, we will begin with you.
[Translation]
Marc Bellemare, Lawyer, as an individual: I am here today to present my views on Bill C-10. I will be doing so as a lawyer who, for 32 years, has specialized in defending the victims of accidents and crime and as a former Minister of Justice and Attorney General of Quebec.
The social and occupational rehabilitation of a victim of crime depends to a large degree on the way in which the criminal justice system has managed the charges, the accused's trial and sentencing. While many victims complain that they are given little consideration in the conduct of a criminal trial, virtually all deplore the often lenient and paltry nature of the sentence. The result is immense frustration. I can assure you that no rehabilitation is possible until victims are certain that the justice system has imposed an appropriate sentence commensurate with the permanent loss they will be facing for their rest of their lives.
For victims, Bill C-10 sends a strong message of hope. Whether their attacker is an adult or a young offender, Bill C-10 introduces mechanisms ensuring that violent crimes, sexual predators and drug traffickers will be harshly dealt with. Harsher and more vigilant criminal justice will also be a more respected and more credible form of justice. The public's level of trust will be increased. Social condemnation of this type of crime has currently reached new heights. Bill C-10 provides real solutions, in particular through mandatory minimum sentences, the imposition of adult sentences on young offenders who commit violent and serious crimes and publication of the identities of violent young persons at high risk of reoffending.
A recent study has revealed that 77 per cent of Quebecers want harsher criminal justice. That involves the sentence that is imposed, but also the feeling of safety that all citizens must have for themselves and their families. The present government has been frank and open with the Canadian public. Its criminal justice policies were known, and voters undeniably validated them by giving it a majority mandate.
Bill C-10 revises nine bills previously discussed and introduced between 2006 and 2011. It is now time to deliver and implement those reforms. I would even like the government to go further in the near future by imposing minimum sentences on persons who are found criminally liable of injuring and killing others on the roads. I would also like all victims of crime who are dissatisfied with imposed sentences to be able to petition a court of appeal, on their own initiative, to rectify the matter. Lastly, I would like the government to consider the possibility that Canadian inmates who can afford to do so have an obligation to make a monetary contribution to pay for the cost of their incarceration.
Thank you for the chance to be heard before the Senate committee responsible for studying Bill C-10.
Line Lacasse, as an individual: Good morning, everyone. My name is Line Lacasse, and I am here with my husband Luc Lacasse. We are the parents of Sébastien Lacasse, who was killed by a group of young offenders in Laval on August 8, 2004. Our son was only 19 years old; he was violently torn and stolen from us by some 10 unscrupulous youths who had no respect for life.
He was severely beaten, chased and attacked with pepper spray, trampled without being given a chance, even though he asked them to stop and, lastly, stabbed to death. None of the 10 youths saw fit to call for help. All of them, without exception, left the scene without feeling any empathy for the young man who lay dying in his own blood.
For us, life will never again have the same meaning. This affects not only our immediate family, but also all those who loved Sébastien. Feelings never previously experienced surface: anger, rage, injustice, distress, the spirit of vengeance and fear. Losing a child is unacceptable, especially in such a violent manner. In general, parents should die before their children, not the contrary.
What is the value of a life these days? All of us here, around this table, can ask ourselves that question. To add to the odious nature of this affair, I must say that judicial proceedings are a real circus. We spent three years of our lives following interminable and emotionally difficult proceedings. We were forced to relive that horrible night repeatedly at every stage of those proceedings, for the various individuals accused in our son's murder.
It was very important for us to follow all the stages of the proceedings in an attempt to understand the incomprehensible and to ensure that the murderers received a sentence that fit their crime, proportionate to the severity of the inhuman acts they committed on August 7, 2004. It goes without saying that the mental and physical health of our entire family was affected.
The assistance provided to the murderers has been exceptional. They are entitled to medical and psychological aid; they can pursue an education while under supervision, all at the expense of the governments in power. What is pathetic, however, is the aid given to victims' families.
There is no support or aid from those governments, or very little. The $600 provided by the Government of Quebec at the time of Sébastien's murder definitely did little to help us solve the financial problems caused by the situation. Instead we had the feeling that there was simply a lack of respect for us and that we were not important in the eyes of our elected members.
Ultimately, that amount is laughable, an affront to a family sorely tried. We were left to ourselves with all our pain and resulting concerns. We live on less income because, for health reasons, I was unable to work, and Luc worked less so that he could follow the trial. That lack of income ultimately caused us some additional concerns that we really did not need at the time.
Fortunately, the Association of the Families of Persons Assassinated or Disappeared helped us and worked with us during the legal proceedings. We were fortunate to have a lawyer friend who supported us throughout the proceedings.
Sébastien's Law, Bill C-4, named in memory of our son and of our determination, is like balm for the heart. It is gratifying and reassuring to see that a government is considering this problem. The most important thing for us is that someone took the time to listen to us and to hear the entire story of families that have suffered.
I know that other governments focus a lot on statistics, but you must understand that a single life lost is one life too many. I would not wish for anyone here to experience this kind of situation, and I challenge any mother or father to go through this kind of ordeal and to oppose this bill, which, among other things, will punish assassins in a manner proportionate to the violence of the acts they commit.
In my opinion, it is essential that the Youth Criminal Justice Act be reinforced. It must be borne in mind that this act concerns serious crimes and will ensure that adult sentences are considered for young persons 14 years of age and over who commit serious violent offences. Here we are talking about murder, attempted murder, manslaughter and aggravated sexual assault.
In addition, one of the purposes of this bill is to set a deterrent by providing for harsher sentences for the most violent repeat offenders. It is important for judges to have the necessary tools to protect society from crimes committed by adolescents so that young offenders receive sentences proportionate to the severity of their crimes.
Another important point in this bill is the publication of names, which will ensure greater vigilance and will protect the public. Lastly, the amendment concerning criminal records, which could be considered by a trial judge, is important in proving a young offender's criminal tendencies and enabling the judge to determine the appropriate sentence.
In closing, I would like you to realize that a family serves a life sentence when it loses a loved one in such a cruel and hateful manner.
We must improve our justice system, we must respect life, and we must be able to protect the safety of all citizens by supporting the adoption of this bill so that it comes into force as soon as possible. Of course, this will never bring back our son, but at least his tragic situation and death will have contributed something to society.
Joanne Jong, as an individual: Honourable senators, my name is Joanne Jong. An entire life of hard, honest labour was ended for my father, 88 years old and in full possession of his faculties, by a barbarous, deliberate and unwarranted attack committed by two horrible ruffians, one a minor, the other 18 years old.
The murderers had taken the precaution of equipping themselves with surgical gloves and, after committing their crime, hid my father's body and removed all traces of blood from his house. When they got home, they burned their clothing. Fortunately, they were unable to proceed with the dissection of his body in order to scatter his remains.
Killers choose to kill. There is absolutely no justification for killing. By killing, killers cause victims: the person they kill, first of all, but also the relatives of those individuals. We victims are not victims by choice. We become victims as a result of the choices made by others and of the crimes they commit. It is a life sentence that we serve.
It is as a victim that I am appearing before this committee to comment on Bill C-10, particularly the clauses concerning killers. As a victim, I am relieved to see that, by introducing this bill, the government is taking statutory measures to ensure the protection of citizens.
The Canadian Charter of Rights and Freedoms gives us the right to life and security of the person, and it is reassuring to see that the government is shouldering its responsibility to support those rights. Bill C-10 is an important step in the right direction because it concerns the most dangerous criminals and the most serious crimes. And I would even enhance it.
A crime is not a mistake. A crime is a deliberate, destructive act against others. It is high time we stopped thinking only about the rights of the worst criminals. Stop lamenting their fate, pitying them and calling for more resources for them. All this energy spent pitying them takes away from the time and energy that should be devoted instead to the needs of the victims.
I entirely agree with the clause in Bill C-10 providing for the disclosure of the identities of minors charged with murder because we have a right to be protected from the most violent and dangerous individuals in society. If some of the proposed measures had been in effect, authorities would have been able to disclose the criminal histories of those young men to my father, which would have saved his life.
Sentencing serves a number of purposes, including ensuring compensation for harm caused to victims and the community. It is important for victims that compensation and restitution for harm done become mandatory components of every sentence and be quantified by order. Inmates should not be granted release until they have paid the amount prescribed by order in full because failure to comply with such an order should be viewed as constituting contempt of court.
In prison, paid work should be mandatory and imposed for the purpose of repaying that debt. Under clause 54 of the bill, entitled "Purpose and Principles, " I would add a section 3.2, entitled "Compensation and Restitution for Harm Done " as a fundamental principle. This principle of restorative justice should be the first point of clause 55 of the bill, entitled "Correctional Plans. " Recovery from parents of the fees paid to the lawyers who defend minors should be made mandatory.
All information concerning criminals should be provided to the victims, including pre-sentencing assessments, for example, because they are entitled to know everything about those who have invaded their lives, to know the potential danger to which they may be exposed. Criminals are currently entitled to know everything about their victims, when the latter take part in the process, which leaves the victims even more vulnerable.
As for pardons, I consider it imperative that there be no pardons for killers and that they be automatically declared dangerous offenders, starting with the first conviction, because killing another human being is the worst crime of all. It is also imperative to protect society from assassins. I believe it is essential that the justice system pay particular attention to the situation of victims as soon as a crime is committed and to the harm and prejudice they have suffered. In my opinion, crime victims' assistance centres should be grouped together under the aegis of the victims ombudsman and report to the federal government.
We victims are not anecdotes. We have this experience, which makes us specialists. Thank you for giving victims a voice in your study of Bill C-10 and for hearing me.
[English]
The Chair: Thank you very much. We will now proceed to questions from our committee members, beginning with our deputy chair, Senator Fraser.
[Translation]
Senator Fraser: Mr. Bellemare, as you know, we are here today to focus particularly on the part of Bill C-10 that concerns young offenders. I know you talk about that in your brief, but you did not mention it in your oral presentation.
You are in favour of those changes, if I understood correctly?
Mr. Bellemare: Yes.
Senator Fraser: Did you take part in the extensive consultation that was conducted before the government introduced the bill — it has done so a number of times; I forget the bill numbers.
Mr. Bellemare: Bill C-4, Bill C-15, Bill C-54 and Bill S-10.
Senator Fraser: That is it; they have succeeded one another. Did you take part in that consultation?
Mr. Bellemare: No, not actively, but I followed the proceedings.
Senator Fraser: Did you agree with the general findings of that consultation?
Mr. Bellemare: First of all, it is quite vague. A lot of people were consulted and testified. I agree with Bill C-10. As for the rest, I know that all kinds of opinions were expressed for and against it.
Senator Fraser: The general findings across the country — but in Quebec as well — were that the problems we have do not stem that much from the act as it currently stands. As the police officers who testified before you told us, the problems throughout the system are a shortage of resources and a lack of rehabilitation services, of mental health care and, in short, of all the services we can imagine. Do you agree with that?
Mr. Bellemare: Crime is a multifactorial area. There are all kinds of reasons why an individual will commit a crime, and all kinds of reasons for getting out of it afterwards, when you are in a position to do so. However, we should not avoid taking concrete action through legislation that provides for a stronger framework for the judicial process or that introduces a stricter approach. We must not avoid introducing more punitive mechanisms because crime is a multifactorial phenomenon and there are all kinds of social reasons why a crime has been committed.
People often tell me: "Address the problems that put criminals into society. Address the problems of poverty, the problems associated with couples who break up, education problems, and the lack of resources for young people. " However, once a crime is committed, once someone has killed or sexually assaulted someone or imported or sold drugs to youths, how do we deal with that crime as a society? We need judicial mechanisms to ensure that the right sentence is imposed on the person who committed the crime.
That does not prevent anyone from philosophizing or dreaming of an ideal society in which, ultimately, there may no longer be any crime in our society, but I do not think that is actually achievable.
Senator Fraser: Before handing the floor over to the other senators, Ms. Lacasse and Ms. Jong, I want to thank you very much for your testimony. We know it is not easy for you to relive your experiences in a context such as that of this committee. I want to thank you sincerely.
[English]
Senator Runciman: I would like to thank the witnesses. I echo Senator Fraser's sentiment. We appreciate your being here today. In many instances, we know how difficult it is to relive memories of what you and your families have had to go through.
My first question is to Mr. Bellemare. Sir, much has been said by the current Quebec justice minister and some elements of the Quebec media with respect to changes to the basic principles of the YCJA and specifically the removal of the word "long-term. " This amendment changes protecting the public. That is the change in the bill.
I see that as encompassing both short-term and long-term protection of the public. That is our fundamental obligation to society as legislators. I have had difficulty understanding the concern that has been expressed by the current Quebec government with respect to this, and I am wondering what your views are.
[Translation]
Mr. Bellemare: Personally, I believe that changes nothing. Quebec's justice minister seemed to say, in his presentation on November 1, that the expression "long-term " had to be there to ensure that the sentencing issue would be analyzed with some perspective over time, in the future. I believe that would only be an interpretive term and that it would have no impact on sentencing. Once again, that would be a provision that might assure us that the rehabilitation factor would be taken into consideration to a greater degree, but everything depends on the way the courts interpret it. I do not think that makes it any less important to implement the mechanisms of Bill C-10.
In my opinion, that is not what is important. Instead it is minimum sentences that are essential, as well as the possibility that a young offender may be tried as an adult in certain circumstances, as I believe is provided under clause 176, and that the accused's identity may be published in certain clearly defined cases, as provided under clause 185. I do not believe that Quebec society is very much concerned whether the term "long-term " is used or whether it is introduced. What is important for Quebecers is to ensure that we have a credible justice system that provides the government with tools.
[English]
Senator Runciman: Ms. Jong, I understand your father's killers had committed numerous crimes prior to the murder of your father.
Ms. Jong: Yes.
Senator Runciman: Crimes for which they had not been prosecuted.
Ms. Jong: Exactly.
Senator Runciman: Bill C-10 requires that a record be kept when extrajudicial measures are taken. Could you give us your views with respect to that change in Bill C-10?
Ms. Jong: Yes. That is what I mean when I say if these articles had been in force, my father would have had the right to know about these extrajudicial procedures. Under the current system, the authorities did not have the right to let him know how dangerous these two youngsters were.
Senator Runciman: Ms. Lacasse, you mentioned in your submission about the publication of names. Perhaps you could outline why you feel the change to allow greater latitude with respect to the publication of the names of young offenders is important.
[Translation]
Ms. Lacasse: I believe that publishing names lets the public and the people who associate with that individual know who they are dealing with. That is important. When Sébastien died, names could not be published, and people were afraid because the person had not yet been arrested and no one could know who it was. I believe it is also important to know what a young offender has done once that individual is released from prison.
[English]
Senator Cowan: Ms. Jong and Ms. Lacasse, I am sure it must be very painful for you to come and relive the experiences you have had, and we appreciate that. It is hard for us, as parents, to imagine what you have gone through. We do sympathize with you.
I want to read a paragraph from a brief we received from the Canadian Bar Association, and I would ask for your comments, Ms. Lacasse. This is the case involving the murder of your son. It says:
Further, the legal outcome of that case was appropriate. Three adults pleaded guilty to manslaughter and received four-year sentences. Another pleaded guilty to criminal negligence causing death. Two other adults were charged with obstructing justice. The person who actually stabbed Mr. Lacasse was seventeen at the time and pleaded guilty to second degree murder. He was sentenced to life in prison as an adult. The current YCJA was used to impose an adult sentence of life imprisonment on the seventeen year old involved. Nothing in Bill C-4 . . .
— which is the predecessor to this one, now Bill C-10.
. . . would have prevented the tragic death of Mr. Lacasse, nor would it respond with a harsher penalty than that imposed.
Are they incorrect there? Have they missed something?
[Translation]
Ms. Lacasse: If you are talking about the 17-year-old who committed the murder, he obviously received an adult sentence of not less than 7 years. He has probably been released, and he no doubt sought leave to appeal. I believe he deserves a 25-year sentence, but seven years is not very much for a life.
I can also tell you about other youths who were among the 10 who assassinated my son. Three were sentenced to four years and released six months later, and I can tell you they assaulted another boy in Brossard two years later — the same as for my son, but, fortunately for him, he survived. Today, two of those who killed my son are still in the midst of judicial proceedings. That proves to me that there is not really any rehabilitation. They were sentenced to four years, they served six months, and they started over afterwards. That is really proof that this did not really help at all; incarceration did not help them rehabilitate; they went back to public life and did the same thing again.
[English]
Senator Cowan: My question is this: We are looking at Bill C-10 today. What is it in this bill that would have either prevented the killing or changed the legal outcome of the case? That is my question. I would like to hear from Ms. Lacasse first, and then perhaps Mr. Bellemare.
[Translation]
Ms. Lacasse: As I told you earlier, obviously nothing in Bill C-10 would prevent anyone from killing, but I believe that, in any case, it would provide judges with some tools, for example. Perhaps as well, even though the statistics still tell us that stiffer sentences do not scare youths, they do not see that as a deterrent, but I believe the contrary. I believe that, if they see that sentences are stiffer, that scares them. That is what people tell me when I talk about it.
To answer your question, I am here for the sake of the future; I know that Bill C-10 does not necessarily concern what happened to my son, but I believe it is good for the future, for others. It will not bring back my son, but I think it is important to introduce stiffer sentences. We have light sentences for a lot of things, even though we also have harsh sentences for actual crimes. Yes, Sébastien's main murderer got a good sentence, but the others are back on the street and have attempted to commit another murder. So I believe that, if we tighten things up a little more and give judges more tools, that can make a difference.
Mr. Bellemare: The statement by the Canadian Bar Association, that nothing in this bill would have prevented this crime, is a crazy statement. No one can say that this crime would not have been committed if our laws in Canada had been more severe. No one can say that an individual will reoffend; it is that individual who decides. I believe that, if our sentences are tougher in Canada, if our courts make themselves more credible by handing down harsher sentences for serious crimes, there will be a deterrent effect, but there is nothing more complicated than deterrence.
Everyone will tell you that there are no studies establishing that this has a deterrent effect. I am deterred from committing a crime because there are prisons in Canada. Honest people are as well; criminals are as well, and prison has a deterrent effect. I am convinced of that; otherwise there would be no prisons; we would have abolished them centuries ago. When the Canadian Bar Association, with all its prestige — a prestigious institution representing 40,000 lawyers — tells you, without raising an eyebrow, that nothing in Bill C-4, now C-10, could have prevented this type of crime, I believe that is a crazy statement. I could tell you the contrary, and it would be equally true.
[English]
The Chair: Ms. Jong, do you have any comments you wish to make?
Ms. Jong: The comment I can think of is that if the minimum sentences had existed when the murderers of Ms. Lacasse's son was on trial, they would not have been out as soon as they were in this case.
[Translation]
Senator Boisvenu: First, I want to thank Mr. Bellemare for being here today; I know he is a very busy lawyer. Ms. Lacasse and Ms. Jong, I know it is still very hard for you to testify about your own experience, and I therefore congratulate and thank you for doing so. I would also like to inform my colleagues on the committee and our chair that our witnesses are here today with the members of some 10 families who have a relative who has been assassinated. They are all members of the association, they are scattered around the room, and I want to thank them because they are here to show solidarity. They have come at their own expense, which is also indicative of their motivation to see Canada establish a fair and safer justice system for Canadians.
Mr. Bellemare, in your brief you refer to a letter published last fall by Éric Bergeron, who has worked in the Canadian correctional system as a psychologist for many years. He is also an expert witness with the Quebec Criminal Court. I would just like to quote a few passages:
For some offenders, punishment is the most useful form of rehabilitation. These are youths who have been highly criminalized from a young age and exhibit psychopathic personality traits, and all the research clearly shows that intervention is ineffective with them.
In these cases, the light sentences they are given early on in their criminal careers are not only ineffective, they merely reinforce their criminal behaviour.
This is not Pierre-Hugues Boisvenu speaking; it is an expert psychologist in the field. Further on, he states:
To say that punishment is the opposite of rehabilitation is to be incapable of understanding that, before any rehabilitation can occur, crime must be punished among individuals who exhibit no moral discomfort or questioning of their actions. Punishment thus becomes essential in order to set a clear limit for individuals who have never experienced any limits in their lives or who have used violence to break them down.
Mr. Bellemare, I know that you are a very busy lawyer, that you have been Minister of Justice, that you defend a lot of victims and that you do so on a volunteer basis on many occasions, and I want to state that publicly and to thank you for it.
My question is for our three witnesses. Does the present system provide greater protection for criminals, repeat offenders in particular, than the public?
And, as a sub-question, how will Bill C-10 restore the balance between protection for the rights of repeat offenders and protection for the general public?
Mr. Bellemare: I believe the public will be better protected under Bill C-10. For example, the minimum sentence for sexual predators is one year. Who can be opposed to a minimum one-year prison term for an adult who gratuitously assaults an eight-year-old child? I do not know any. The people I speak to — I do a lot of teaching as part of my work — are surprised that it is not already like that.
In principle, we are protected for the year during which the individual is incarcerated. Unless he commits other offences, there are no minors in prison because we know very well that clause 186 of Bill C-10 ensures that young minors will not be in adult prisons. However, while an adult sexual predator is in prison, we have to take care of him. In principle, if we are able to take care of him properly, whether it be in a Quebec prison or a federal penitentiary, we should be able to rehabilitate him and to make him a better citizen. Yes, we are protected while he is on the inside, but something also has to be done with him while he is there. I know that the federal penitentiaries and the federal correctional institutions have CORCAN and a lot of rehabilitation programs. It is a well-known fact that the rehabilitation plans in the penitentiaries are more promising, more positive and produce better results than in the Quebec prisons. Some will say that budgets are the cause of that. An effort definitely has to be made in Quebec. Minimum sentences are important, but they have to be accompanied by rehabilitation on the inside, during detention, and I believe the risks of recidivism will be limited if we make the individual a better citizen, in principle, if he has understood something while he is on the inside.
However, if inmates are handled correctly over longer periods of time, that produces results. There are even programs, excessively short periods of incarceration that produce no results. If we take care of a reoffending pedophile who is kept in institution for two years, we will do something good with him, but not if we let him out after three months, as is done in many cases. One example, in the Quebec City area not very long ago, was an Internet-luring case; an adult sexually assaulted a 13-year-old girl and served three months in the community.
Can we consider that we have achieved security for the public and rehabilitation for that individual? Not at all. It is as though nothing happened. I believe that minimum sentences, longer sentences, mean that, in principle, no sentences are served in the community for crimes liable to penitentiary terms of 10 or 14 years, which are serious crimes; I do not know what the provision is, but that is provided for in Bill C-10. And that is fine as well because we will be able to make better citizens of these people. I believe that, if there is proper rehabilitation in prison, like CORCAN, which can even give inmates university courses, we will make better citizens of them and achieve an objective. It is not true, as I have heard in some of the previous testimony, that the length of sentences means that prison is a school for crime and that the longer you are there, the worse citizen you become. What is that all about? That is not an established fact. Prison has virtues, provided something is done with prisoners, especially young prisoners. I am not necessarily talking about minors, but about young prisoners; I mean adults as well.
Senator Boisvenu: One of the more controversial components of Bill C-10 in Quebec is the component related to young offenders. This Quebec model has been praised for months now. I have some crime statistics for Quebec youths 12 to 17 years of age from 2004 to 2010, so over a five-year period. They show a 37 per cent increase in crime among 12-year-olds, 1 per cent increase among 13-year-olds, 5 per cent more among 14-year-olds, 7 per cent more among 15-year-olds, 20 per cent among 16-year-old youths and 20 per cent more among 17-year-olds.
What is this idea of praising our model in Quebec, when I see that crime has risen 12 per cent among youths 12 to 17 years of age over the past five years? What is even more disturbing is to see a 37-per cent increase among 12-year-olds.
Mr. Bellemare: There are definitely increases and, in certain areas of activity, Statistics Canada's 2010 statistic showed an increase in sex offences, 35 per cent for child pornography. There are increases in crime, particularly in sex offences, even though there has generally been a decline. There again, allow me to ask those who say and claim that there has been a decline in crime in Canada, why Bill C-10? My answer would be that there has been a constant decline in road crime in Canada over the past 30 years, but that did not prevent the federal Liberal government from considerably increasing maximums for Highway Safety Code offences on July 1, 1999, even though there had been a widespread decline in road crime statistics. It is not because crime is falling in certain sectors that you should be more lenient with those who commit those crimes. You have to be more so because, if it is declining everywhere, and you have not understood, then you are a problem. We have to take care of you as a criminal. It is not because crime is declining everywhere that you should do less for those who are still committing crime today. There may be even greater social disapproval of that type of crime.
Under Bill C-10, for example, the minimum sentence for incest is five years. Some people will say: What is five years for incest? In 2012, should a father who assaults his 13-year-old daughter not be punished by serving at least five years? Is there anyone anywhere who has not yet understood? A minimum sentence has an effect on this kind of person. Who can translate social disapproval into legislative terms? The duly elected government of Canada, which introduces a bill to reform the criminal justice system such as this one, which was elected on May 2, 2011. That cannot be any clearer. There is a mandate from the people. Social disapproval was also translated into votes to enable you to pass this bill. The will of the people is clear.
Senator Boisvenu: Any comments to add?
Ms. Lacasse: Mr. Bellemare has pretty much said everything I was thinking.
Ms. Jong: You have to realize that the public is very cynical about the present justice system and that Bill C-10 will help restore public trust in the justice system.
Senator Dagenais: I want to thank the witnesses, Mr. Bellemare, for being here, and I salute the courage of Ms. Jong and Ms. Lacasse. I know this is not easy.
My first question is for Mr. Bellemare. You may find it a little political. We know that the provincial government, of which you have previously been a member, definitely does not share your views on Bill C-10 and, more specifically, on sentencing.
Apart from questions about the cost of imprisonment, which seems to scare people, and without discussing personalities with certain members, do you believe that this provincial opposition to the imprisonment provisions of Bill C-10 actually reflects the wishes of the population of Quebec, and even that of Canada?
Mr. Bellemare: On October 25, 2011, and I spoke about this in my brief, the results of a Léger Marketing poll in Quebec were released and established that 77 per cent of Quebecers wanted the courts to be tougher. They wanted criminals to be punished more severely. One can say, yes, but that was not targeted. It does not say what crime was in question and so on, but the general feeling among the public is that we need courts that are slightly more assertive, clearer messages about crime, sentences proportionate to the acts committed. When I told you about a three-month community sentence for the sexual assault of a young girl, there has obviously been an outcry and people do not understand; that has made the news and it is prejudicial to the judicial system.
In my opinion, a firmer approach, more minimum sentences are necessary in specific cases such as those of drug traffickers and sexual predators. In any case, there have been minimum sentences in Canada since 1892. There have always been minimum sentences, and, for most sex crimes for which Bill C-10 increases the minimum to one year, there are already minimum sentences of 45 days. We are going to increase that and bring it up-to-date based on public disapproval.
A program called JE appeared on network television in Quebec on October 27 and broadcast a hard-hitting feature on the disturbing freedom with which sexual predators circulate on the net.
The JE program team caught some 15 sexual deviants when the host passed himself off as a 13-year-old girl. He wanted to hand the document over to police, but the Minister of Justice and Public Safety answered that it did not interest him, that he had not even watched the program and that he would not watch it either. That was three days before Mr. Fournier came here on November 1, 2011 to tell you that Bill C-10 was too tough.
I believe that the Government of Quebec is out of sync with the population of Quebec on the issue of severity. I am convinced, and I have survey results to support me, that Quebecers want a sterner justice system. They agree with Bill C-10 on the matter of the severity of sentencing.
Generally speaking, when you clearly explain the mechanisms, such as those of clause 176 concerning adult sentences and clause 185 on publication of the identities of young offenders, contrary to what the Quebec minister said in the House of Commons, these are very highly regulated exceptional mechanisms that apply in very rare cases and are not automatic, and thus give the Attorney General tools to achieve a higher degree of severity in particularly foul, hateful and violent cases.
Bill C-10 essentially changes nothing in the situation of the vast majority of young offenders in Quebec. Nor is rehabilitation prevented by Bill C-10 either.
However, I personally believe that the government's communication plan concerning Bill C-10 is quite anaemic. When I heard the Quebec minister, I read Bill C-10 from front to back — I was aware of the main points, but I read it — and I wondered what was going on because the population of Quebec is being told things that are not true.
The government has a responsibility to spread the exact content of its bill extensively so that Quebecers understand it better. That was not done, but I hope it will be done one day because Senator Boisvenu is doing a good job, but the majority government, which has all the tools to publicize its bill, would do well to do it quickly, particularly in Quebec.
Senator Dagenais: Ms. Lacasse, your son was the victim of an utterly gratuitous act, and you said you spent three years following the judicial proceedings. Did you get the feeling that, despite their young age, the accused were very familiar with the subtleties of the judicial system? Can you give me a few examples of that? Do you have the feeling they knew what they were doing and familiar with the justice system when they committed those acts?
Ms. Lacasse: Yes, definitely. Minors know that sentences are minimal. We really felt they were mocking us completely.
Senator Dagenais: Did you get the feeling they were aware of what might happen to them?
Ms. Lacasse: Yes, they were aware that youths do not get long sentences and that the older they are, the longer the sentence. That was obviously the main argument for the principal accused since he absolutely wanted to be tried as a minor. He even appealed to the Superior Court in an attempt to change the verdict and adult sentence since he really believed he could save himself with a young offender sentence.
I am surrounded by a lot of young people, and they all tell me that they change when they turn 18. They know that, before the age of 18, they can do "virtually anything, " whereas they have to behave more after they turn 18. I hear that often from young people I see frequently even today.
[English]
Senator Lang: I make a special recognition to Ms. Lacasse and Ms. Jong. For the representatives of victims of crime who have come here today, I know I can speak for all of us that our hearts go out to you, and we cannot imagine what you have gone through.
Over the past number of days, we have had testimony from a number of witnesses. From those who are involved in the judicial system, there seems to be a common thread of thinking that the judicial system is working well the way it is. There should be no changes, but we should just provide more money.
Then there are the witnesses representing the public who have come before us, and there is a constant thread coming forward that there is a real lack of respect for the judicial system the way it is being administered at the present time and a real lack of confidence in how it is going about its business.
If this bill is not passed and does not come into effect, do you feel there will be a further erosion of that confidence in the justice system if the system stays the way it is? Mr. Bellemare, could you answer, and then the other witnesses if they wish.
[Translation]
Mr. Bellemare: I believe this bill must be passed in order to increase public confidence in the judicial branch. Minimum sentences have a significant effect once they are disseminated and known. The deterrent effect is related to the spread of minimum sentences.
In Cambodia and Thailand, for example, when you drive on the highways — my wife is Cambodian and I have often been there — you see billboards in the schools and shopping centres stating that, if you assault a minor in that country, you will spend five years in prison. I do not understand why we do not have that in Canada. I think we should do it.
Generally speaking, however, the courts enforce the laws. I think Quebecers in particular — because I know them more than other Canadians as a whole — want the government to adopt tougher measures, although what toughness means is not necessarily clear in each person's mind.
We hear unpleasant things in everyday life, in the newspapers, in current events; people are granted early release. Not so long ago, a police officer in Quebec City was assaulted by an individual who is being sent to a halfway house 500 feet from her home, although she is terrified of that individual. Another individual in the Saguenay was sentenced to 10 years in prison but has refused all treatment. I am representing the victim in court and she is terrified of seeing that individual again in her neighbourhood, and her children live two kilometres from her home. We are seeing this now. People wonder why dangerous people are being released, even when their present sentence expires. Perhaps that is because the initial sentence was not tough enough. It is all that.
Justice is a very subjective and philosophical concept. People wonder: why a minimum one-year sentence for sexual predators? My answer is: why a blood-alcohol level of 0.08 per cent and not 0.05 per cent or 0.02 per cent? Why do we release people on parole after they have served one-third or two-thirds of their sentence? All that is subjective.
Somewhere there is a government that is drawing a line and dictating how things will happen. I think there are enough elements in Bill C-10 that reinforce the system at various levels, particularly for violent criminals and sexual predators, that there are positive mechanisms that show that the government is aware of the concerns of citizens as a whole.
Justice is not just the business of a handful of lawyers and judges. Justice and the operation of the judicial system stem from an act that is essentially the Criminal Code and that is passed by elected representatives who decide that the Criminal Code will be that way. The only way for ordinary citizens to be heard and to hope to have a judicial system that corresponds to their values and is commensurate with the disapproval they feel regarding a number of crimes is to ensure that a government somewhere changes the law to institute tougher sentences, to reinforce the sentencing mechanism and to reduce the number of sentences served in the community in cases of serious crime.
Bill C-10 does not do everything; I have some criticisms to make of this bill because I believe that, in some respects, it does not go far enough.
For example, with regard to sentences for individuals who commit sexual crimes while in a position of authority, Bill C-10 provides for a one-year term for hockey coaches, ballet coaches, school teachers, priests and so on.
I do not understand why it is one year for a person in authority and five years for a father who abuses his children by committing incest. We should impose five years as well in the case of sex crimes committed by persons in authority against children under 16 years of age. Those individuals enjoy the child's full trust. However, that child, who experiences terrible suffering and fear, day and night, is abused by someone who is in charge of and responsible for that child.
I therefore do not agree with everything Bill C-10 contains. I believe it should go further in some respects. In spite of everything, as I indicated in my presentation, Bill C-10 above all sends a message of hope to victims because it respects them and acknowledges their distress. For ordinary citizens, it is a message to the effect that we will be tougher. That is all they understand, but it is already a lot.
[English]
Senator Lang: Does anyone else want to comment?
[Translation]
Ms. Jong: I agree with Mr. Bellemare. I believe that Bill C-10 will restore the trust of the general public, which is currently very cynical about the process. We are very cynical about the rights of the accused, about the lightweight sentences imposed. We wonder whether the efforts of Crown prosecutors and police departments to prosecute these criminals serve any purpose when those individuals emerge unscathed and laugh their heads off.
What Bill C-10 will also do is prevention by imposing minimum sentences. Those who commit crimes are well aware of their rights and of the sentences they may incur. With minimum sentences, they will think twice before committing criminal acts. That will result in long-term savings for the criminal justice system.
[English]
Senator Lang: I want to follow up with Mr. Bellemare with respect to one of your comments. You mentioned that the message of what is actually contained in this bill is not being disseminated truthfully in a lot of quarters. I have to agree. I think in some quarters, the media have accepted some of the criticism by those criticizing the bill, accepting it as gospel, running with it and not reading up to see whether or not it is accurate.
It goes back to your comments about the mandatory minimum sentences. Obviously we can either agree or disagree whether they should be more or less, but the fact is there is a minimum in most cases of a year for most of these offences, sometimes as high as five years, yet they compare it to the American system, as you know. Some media have run with this, indicating that this will take us to the equivalent situation as in many of the American states. Specifically the one I watched was in Texas. I think it was totally inaccurate, and it did not do the public in Canada any good because they do not know what this bill is. It was designed to scare them with respect to what was contained in the bill. Would you comment on that?
[Translation]
Mr. Bellemare: I believe that those statements are largely exaggerated. As you know, we are dealing with politics, perceptions and impressions. Nothing can compare to the Canadian judicial system. Our criminal justice is a special system. It has good sides. Some sides deserve to be improved, but to compare the Canadian criminal justice system, even Bill C-10, with systems in the American states is quite crude in my opinion.
I repeat, Bill C-10 will not have as much influence as people believe. It provides the courts with tools. Consider the example of the publication of a young offender's identity, as provided for by clause 185 of Bill C-10. Many people in Quebec, since the performance of one person with whom you are familiar, believe that young offenders will all go to adult prisons, that there will be no more social rehabilitation, that rehabilitation will be terminated under Bill C-10. The identity of a minor who has committed a crime will be published. I believe a communication plan is urgently needed because many people still have these kinds of perceptions. Under clause 185, six conditions must be met in the extremely rare cases in which a young offender's identity will be made public: first, a request must be made by the Attorney General — there is no guarantee that he will do so; second, a young offender must have committed a violent and serious crime; third, there must be a very high risk of reoffending; third, that repeat offence must be linked to an equally serious crime; fourth, the risk of reoffending must not simply mean the risk of stealing a pack of cigarettes at a convenience store; fifth, there has to be a risk of violent and serious crime; and sixth, a judge has to grant the request. So this is very different from the spectre of seeing photographs of all young offenders in the newspapers.
Unfortunately, that is the perception that was put out by certain individuals from Quebec who said, in quite an exaggerated way, that the young offender's identity would be compromised and that it would be traumatizing for him. Who are we talking about? I do not know any young people who meet the six criteria I have just stated. There may be one, two or three of those youths walking around, and a judge and the Crown prosecutor could say that, in those cases, they will publish their identities because that youth may go to a school or bars or belong to a street gang; he may be my next-door neighbour. So I have a right to protect my children and to ensure that my children do not go to the same parties as those guys. It is a matter of safety. In those extreme cases, if I know, I will take the necessary precautions to ensure that my child does not attend the same school or to prevent my daughter from getting into his car.
With regard to safety, as a father, I believe this provision has merit. Unfortunately for the youth whose identity will be known, perhaps that will have some consequences. However, the consequences for my family are significant. In this extreme case, I believe the measure is justified.
I spoke in my brief about Julie Surprenant, who died and whose father, Michel, is here and to whose courage I bow deeply. If Michel had known that his upstairs neighbour was a dangerous sexual predator, his daughter would never have lived in that apartment.
So knowing the identities of dangerous sexual predators who are at high risk of reoffending has virtues because we can protect ourselves. I agree with the people who say that the youth will be stigmatized. However, that will not be done in all cases; it will be done only in exceptional cases. We will see in five years how many cases meet the conditions of clause 185 of Bill C-10. That provides judges with an instrument, and we need instruments in a judicial system of this kind; we never have enough of them.
[English]
Senator Lang: Thank you.
The Chair: Colleagues, for our remaining time we have three senators, so if you could keep that in mind as we look at the clock.
[Translation]
Senator Chaput: First I want to offer my very sincere thanks to Ms. Lacasse and Ms. Jong and to all those who accompanied them as they testified here before the committee. I admit that must be very difficult. You have made us aware of what you have gone through and of the great injustice you have suffered. I am grateful to you.
We are discussing Part 4. I have a question for Mr. Bellemare that does not concern Part 4, but rather suggestions that he made in his opening statement.
At the very end, you mentioned that, following Bill C-10, we could also go further. One of your suggestions, which I think are very interesting, is that criminals who can afford to do so should contribute to the costs of their incarceration. Why not go further and add that they should contribute to the needs of the victims? After all, it is their criminal act that made those individuals victims.
Mr. Bellemare: I have always found it abnormal for inmates who can afford it, wherever they may be, not to do so. They are not all poor. Some people are poor, but the rich commit crimes as well. There are a lot of white-collar types involved in impaired driving, financial fraud and sexual assault.
People who are very well to do can commit crime. I can cite three examples from memory: Robert Flahiff, a former Superior Court judge, who was sentenced to 30 months in prison in 1999, I believe, for laundering $1.7 million; Guy Cloutier, who was sentenced to 42 months in penitentiary — he served 29 — for abusing two youths over some 10 years; and the Shafia family, sadly famous and recently convicted.
I read La Presse a few weeks ago, and I learned that Mohammad Shafia owns a building worth $2.35 million in Laval, Quebec. Within those walls, he manages his assets, in particular a shopping centre. I imagine that that costs a lot of money, that we have no more money and that we try to find it where we can. And yet the only ones in our entire system who are not called upon to make a monetary contribution to their institutional expenses, which are high — I mean those who can afford it — are the criminals in our prisons and penitentiaries. I do not consider that normal. The government should consider the possibility of having them make a financial contribution. The State of Connecticut does that.
Let us suppose I have a child of 15 or 16 who has problems and who has to spend time at a reception centre in Quebec. He has not necessarily committed a crime — perhaps he has, perhaps not — but he suffers from a social disorder. We will send him to a youth centre, and every month I will be sent a bill for $500 or $600 to finance my son's or my daughter's accommodation because I am solvent. As for my mother, who is losing her independence and who lives in a reception centre, we will dip into her bank accounts to try to see whether she has enough money to pay for her accommodation.
Criminals in federal penitentiaries and Quebec prisons do not contribute. I find that abnormal. We should charge them $7 a day, as we do at early childhood centres in Quebec; that will at least do that. Perhaps it would eventually be normal for us to come to that.
What you say is interesting too. Inmates should be required to face their victims. They should help them in one way or another; it should be a financial consequence of the crime committed, not just prison, but moral obligations or obligations of support for victims. I agree with that. We incarcerate them, we rehabilitate them, but we should very much insist on a form of rehabilitation that would be based more on social and financial responsibility, and on moral and human responsibility toward victims. It is important to do that.
Senator Chaput: Thank you.
Senator Angus: I would like to congratulate all three of you and thank you for your important testimony on Bill C- 10.
Mr. Bellemare, your brief is very useful to us. It shows us the other side of the coin. You mentioned the appearance in the House of Commons of Quebec's Attorney General, Mr. Fournier, and of the representatives of the Canadian Bar Association and the Barreau du Québec, of which I am a member as well. I share your opinion that this is a bad way to proceed because it does not represent the 40,000 members of the Canadian Bar or the 20,000 members of the Barreau du Québec.
Your evidence contradicts that of Mr. Fournier and of the representatives of the bar associations. Among other things, you cited the results of the Léger Marketing's October 27 survey. Can you cite any other organizations or individuals in Quebec that support your position?
I listened to your answers to Senator Dagenais' questions, and I agree. However, I would like to have other Quebec sources, if possible. Quebecers prefer a much tougher system and sentences over a soft justice system.
Mr. Bellemare: A lot of people have appeared before the House of Commons committee, just as a lot have appeared here. Some are for this bill, some are against it. Quebec is a land of lobbies, and when new legislation is prepared in Ottawa or Quebec City, the lobby groups turn out. They oppose or are in favour. Those in favour are generally less noisy.
Here you are facing a special problem. The victims of crime — there are some in the room; I know hundreds of them — are not equipped, organized or structured like the Association des avocats de la défense au Québec, the Barreau du Québec or a government. I work with victims associations, and I can tell you that they are massively in favour of Bill C-10, as are ordinary people. Ordinary people have few ways to express themselves. They can express themselves in an election. They had one on May 2, 2011, and that was for Canada as a whole.
You referred to the Barreau du Québec. I have been a member since 1979 and have sat on many committees. I founded the victims of crime committee and the automobile insurance committee, and I have long been a member of the industrial accidents committee and the administrative law committee.
The official position of the Barreau du Québec is that of the criminal justice committee, on which some 20 lawyers, essentially defence attorneys, sit. They are legal practitioners who earn their living defending the accused. I have a lot of respect for what they do. The Crown is relatively silent, the judges even more so. So who can speak for Bill C-10? Few people. That does not mean there is no support. They are more subtle, less explosive and less articulate perhaps, but that does not mean there is no support for Bill C-10.
The Barreau du Québec did not consult its members on Bill C-10, and that really irritates me. I pay dues to the Barreau du Québec, and I see the committee representative, Mr. Battista, who told the House of Commons committee: "We are opposed to Bill C-10. " He speaks for his committee, but he does not speak for me. We were never consulted on line, by survey or in any other way. At the bottom of their press releases, they always add that short sentence, which gets stuck in your mind, to the effect that the Barreau du Québec represents 24,000 lawyers in Quebec but that its position, which you see in the newspapers across Quebec, is not that of those 24,000 lawyers in Quebec. The Canadian Bar Association is also not entitled to speak on behalf of its 40,000 member lawyers, regardless of what they say in their press releases. This gives the media the impression that Quebec's lawyers are opposed to the bill and that the members of the Canadian Bar Association are opposed to the bill. Personally, I find that unfortunate.
When you consider how representative those who have made a lot of noise opposing Bill C-10 are, you realise that it is ultimately a few dozen lawyers who work to draft a brief who are very frustrated because they represent opposing interests, essentially the interests of the accused. This frustration is expressed in a brief and eventually in the bar's official position. However, that does not reflect the opinion of all lawyers. I could introduce you to a very large number who are in favour of Bill C-10 and who are eager for the Canadian justice system, the criminal justice system, to be further reinforced.
Senator Angus: You are a good spokesman for the silent majority.
Mr. Bellemare: One might think that, yes.
[English]
The Chair: Thank you for that, Mr. Bellemare. For our final question, Senator Frum.
Senator Frum: You are a great spokesperson, and you have all given extremely eloquent and important testimony, so I would also like to thank you.
Ms. Jong, you answered this already, but I want to really understand your response to the question of whether, had Bill C-10 been in place, it could have prevented your father's murder. I want you to answer that.
Mr. Bellemare, I am touched and moved by the presence of the people who have come today to hear you. You made reference to one person in the room. Are there other victims here who might still have their loved ones with them today had Bill C-10 been in place?
Ms. Jong: Yes. If Bill C-10 had been in effect in 2009 my father would still be alive, because the authorities and people in the know would have had the right to talk about these youngsters. The youngsters know their rights. They know that when they are under 18 they can do a lot of things and not be held accountable, and the public does not have the right to know about those youngsters. The public does not have the right to know the danger that they are facing in dealing with those youngsters.
That part of Bill C-10 gives the power to people who deal with these youngsters to talk to other members of the public who would like to know a little bit more, who do reference checks or things of that nature. It is not the part about publicizing the names; it is the part about the information that the general public has the right to know.
Like I said, the youngsters knew very well what they were doing. They put on gloves, they wiped the blood and they burned their clothes. They knew very well that killing is a crime and that they could go to jail for it, so they are not poor little young people who are innocent and who need to be pitied.
[Translation]
Ms. Lacasse: For me, it may obviously be different from Ms. Jong's case. Most of them were youths, and I know that a few of those youths in the group of 10 had criminal records, but they were not mentioned and the judge could not take them into consideration. Today, Bill C-10 could make it possible to take previous offences into consideration. If we had known that such and such an individual had done such and such a thing, my son probably would not have gone to that party, or would probably have paid more attention to the people he hung out with. Bill C-10 provides a lot of helpful small tools, particularly to ensure that the public is in less danger on our streets.
Senator Boisvenu: I have a supplementary question for Mr. Bellemare. I believe that question is fundamental. If Bill C- 10 were 10 years old, would 5, 10 or 20 fewer women have been assassinated? I say that because it is mostly women who are assassinated.
In my daughter's case, the individual had committed assault and forcible confinement in 1995. He received a community sentence. In 1997, he received another community sentence. In 1999, he forcibly confined and raped his victim for 12 hours and was sentenced to 3 months in penitentiary. In this kind of case, would Bill C-10 have saved my daughter's life?
Mr. Bellemare: I believe that Bill C-10 will have a deterrent effect — I am convinced of that — with respect to all crime in Quebec and Canada. I emphasize that people must be made aware of the provisions of Bill C-10 soon and permanently because our criminal laws are relatively little known. People who are about to commit crimes do not really know in advance what minimum and maximum sentences they should expect, but I am generally convinced that Bill C- 10 will have the effect of lowering the crime rate in Canada.
There are mechanisms, but people generally know that the government is getting tougher, that sentences will be stiffer, that community sentences will be more limited and that there will be minimum sentences,; I take a very positive view of that, and I have been waiting for that to happen for a long time. I am very pleased about it.
If I may add one point, we can never know whether Bill C-10 would have prevented the death of any man or woman. And for too long, we have lacked this absolute certainty and failed to act. The example of the Canadian Bar Association is equally senseless because it legitimizes the status quo, and the status quo is no longer acceptable. People need a tougher, more reassuring justice system.
[English]
The Chair: Mr. Bellemare, I will give you an opportunity since Senator Frum addressed her question to you as well. I am not sure that you had the opportunity. Is there anything further you wish to add in regard to her question?
Mr. Bellemare: No, thank you.
The Chair: Honourable senators, that concludes our discussion with this panel. It is hard to put into words how to conclude this, but, for Ms. Jong, Ms. Lacasse and all of your colleagues and the losses you have suffered, there are no words to express our condolences and sympathies. There just are not words for it, but I believe you know how we feel.
For the work we are doing with this committee, it is important that we try to understand what impact changes in criminal law can have, so we can understand the impact that it has in the real world and what impact it could have going forward. Unfortunately we cannot turn the clock back for the losses suffered. All we can do is try to prevent them from happening in the future. You have certainly brought those points — the impact, the concerns and the real world — to us very effectively. We thank you from the bottom of our hearts.
Continuing our study of Part 4 of Bill C-10, which concerns the Youth Criminal Justice Act, we are very pleased to welcome a retired chief judge of the Yukon Territorial Court, the Honourable Justice Barry Stuart, and from Legal Aid in Longueuil, Quebec, Ms. Marie-Pierre Blouin, a lawyer with their youth section.
Ms. Blouin, I understand you have an opening statement to make, and then we will turn to Mr. Stuart.
[Translation]
Marie-Pierre Blouin, Lawyer, Youth Section, Legal Aid — Longueuil: My name is Marie-Pierre Blouin. I am a lawyer with Legal Aid—Longueuil and have been an advocate for the rights of young persons for nearly nine years. I am here with one of my colleagues, Catherine Pilon, who is in the audience, and with whom I have defended young persons in major and important cases, in particular R. v. S.J.L., a decision rendered by the Supreme Court of Canada in 2009.
Ms. Pilon is here with me today because we were among the first to react when the minister introduced amendments to the act because we did not understand his concerns about crimes by young persons in view of the fact that the present system already responds to concerns raised by the minister.
If Bill C-10 is adopted, it could result in major constitutional challenges since, in its decision in R. v. D.B., in 2008, the Supreme Court of Canada held that there is a presumption of diminished moral culpability for young persons.
When I am asked what a presumption of diminished moral culpability for young persons means, I answer that it means that young persons must be treated differently from adults. If the Canadian public suddenly asked me how we treat young persons differently here, I would say that we draw a fundamental distinction between adolescents and adults in two areas: sentencing, which is utterly different for young persons, and the confidentiality of the information we retain on young persons.
Under Bill C-10, we may well be interfering with these two fundamental differences. If we interfere in the confidentiality of information and sentencing, young persons will not receive different treatment and will be treated in the same way as adults.
If there is no longer any difference, there is no longer any presumption of diminished moral culpability for young persons. That is an important point because, if we treat adolescents like adults, then there is no longer any presumption of diminished moral culpability. And, yes, there will be constitutional challenges to the amendments that are made by the bill.
When you think, for example, of the publication ban, that was originally targeted by the government, and is so even now, it concerned the most serious offences in the Criminal Code. We are talking about murder, aggravated sexual assault and cases in which a young person would receive an adult sentence.
Currently, with the wording of the provision, it could be open to any violent offence. In actual fact, a 12-year-old adolescent, who could even be characterized as a child, who made oral threats to a classmate in the schoolyard could have his identity disclosed out of a concern for public safety.
I understand that, when the original attempt was made to amend the provisions, it was really for cases in which the Crown prosecutor had requested a notice of intention to seek an adult sentence and had not been granted one. At that point, there was the possibility of lifting the publication ban, but under the current wording, with a violent offence, all young persons are concerned, including the example I gave you.
Now, with regard to sentencing criteria, I find it hard to see how general deterrence can be included in our present system. The judge must tend toward a social rehabilitation and reintegration objective for young persons, and there are currently other criteria in the young offender system, including the fact that the sentence must be the least restrictive sentence possible.
How will a judge be able to apply that criterion, that is to say that the sentence must be the least restrictive sentence possible for rehabilitation and social reintegration purposes and, at the same time send a message of deterrence to other young persons?
In addition, some specific sentences for young offenders do not exist for adults. The reprimand, for example, is not a sentence applicable to adults and is not in itself punitive. It applies to certain young offenders in exceptional cases. If the bill includes general deterrence, I find it hard to see how a judge could reprimand a young offender while complying with the principle of general deterrence; these are contradictory principles.
With regard to pre-trial custody, I understood that the goal was to facilitate the pre-trial detention of violent young repeat offenders. However, I assure you that, under this wording, the contrary will occur. They are currently excluded in some situations. For example, for a young offender, the offence of assault causing bodily harm, punishable on summary conviction — the maximum sentence for which is 18 months — does not fall under the definition of serious offence, and, consequently, the Attorney General would not be able to request pre-trial detention. That is somewhat peculiar because Parliament in fact wanted to facilitate pre-trial detention; the rules are becoming so complex that it is the contrary that could well occur.
The same is true in the case of a young person who decides not to appear in court. Currently, an adolescent charged with shoplifting who does not appear in court may ultimately be detained in pre-trial custody, but, under the proposed amendments, since this is not a serious offence, that young person will not be detained prior to trial. This provision was an attempt to ensure a bail hearing, but I assure you that the present system works well and that violent, reoffending young persons can be detained before their trial.
Most of the young persons we see in court every day — because I am in Youth Court every day — are not violent. They appear in Youth Court only once and will not be back. Clearly, their appearance in court prevents them from reoffending.
Violent young repeat offenders are unfortunately part of our society, and the current system is adequate; it is possible to detain them before trial, to order a sentence of detention, and, in extreme and important cases, it is even possible to give them adult sentences.
Bill C-4 was initially entitled Sébastien's Law, in view of the fact that that young boy had been killed by a young person and several adults. In that instance, the only adolescent involved in the case was tried under the Youth Criminal Justice Act and received an adult sentence.
I believe the system has proven itself; it works and, in specific and extreme cases, adequately meets needs.
[English]
The Chair: Justice Stuart, do you have an opening statement you care to make?
Barry Stuart, as an individual: I could just say, "Ditto. "
I will try to see what I can say in five minutes and try to respect that limit. I will try not to speak quickly, but I will try to focus. I will focus primarily on the impact of mandatory minimum sentences, on the restrictions, on conditional sentences and on the restrictions on the use of parole as it applies.
There are many changes in the omnibus bill that I like, but I will focus on the ones I do not like. I should frame my comments right from the beginning by saying what I am not supporting. I am certainly not here to support more money for the justice system. In fact, I think there is a collective responsibility upon the justice system to find ways to save costs. We have not done that collectively. We need to do that collectively, and we need to start spending smart.
One of the results, I think, in particular for young offenders, is that we need to spend an awful lot more money on young children. There are too many Aboriginal kids going into care. If we track the kids who go into care at a young age, we will find they are showing up over and over again in disproportionate numbers in our young offender system and again, in disproportionate numbers, in our jails.
Since I have left the bench, I have been visiting some of my customers in the jails, and in one of those sessions we had a circle. I asked the offenders in the circle to put up their hands if they had ever been in child care. Of the 27 offenders, and this is a maximum-security prison, how many do you think had been in child care? Over three quarters of them.
The second thing is that I am not opposed to harsh sentences at all. I am opposed to the excessive reliance on punishment and prisons throughout the justice system. I am opposed to it because it does not work. That seems to be unanimous by everyone who has been looking at it closely.
Third, I believe we dramatically need to increase the role of victims in the justice system. We need to give them a full voice. In fact, I think we need to create a separate system for them, because the system needs to focus on harm, on broken lives, not just on broken laws. In that case, the victim should have a separate system that deals with their needs, whether or not the offender is before the courts, whether or not the offender has been found guilty. We cannot simply use them as a pawn in the game of trying to find a conviction for an offender.
The next thing I would say is I think the justice system, and particularly with young offenders, needs to focus on what it can do best and leave to the community what the community can do best, because in trying to be everything to everyone, the justice system is a very expensive tool to use. I cannot imagine a hospital dealing with someone who has a splinter, but that is what we do. Some youth steals a pop or something else like that, and the next thing you know he is in a court process. That is ridiculous. Since the justice system is trying to be everything to everyone, we are not able to focus on the most serious crimes that we should be focusing on — serial killers, serial rapists, corruption, white-collar crime, organized crime, multi-jurisdictional crime. We are not teamed up to be able to deal with those offences in a serious way. Why? Because those offences are really expensive process offences, and we are not dealing with those things that really challenge the stability of our democracy and the credibility we need in our institutions.
What I am going to say may, because of the passion that I feel for this, suggest to you, as it has suggested to others, that I am here to dismantle the justice system. I am not. I am actually here to save it. I want to save it by focusing on what it can do best.
I want to look at what I think the impact of the mandatory sentences, reduction in conditional things, and exactly many of the things that Ms. Blouin said, will do. What it will do is put a huge new investment on the tail end of the system. By putting so much of an investment, a fixed investment, because it is a capital investment, it will set the pattern of expenditures in the justice system for years to come. That is a very serious mistake, and we have to look at any other jurisdiction that has done that, now recognizing the huge costs to the system that that has had.
I want to look at, from 10,000 feet, some of the significant shifts that will happen as a result of that expenditure. The first thing it will do is widen the net of capturing into our system the people who should not be there in the great disproportionate numbers they are. You have seen lots of statistics, I am sure, about the First Nations offenders that end up there, about the mentally challenged, about the poor, about people who are suffering from emotional abuse and have turned to substance abuse to be able to deal with that problem. Those are the people we are putting in our jails. Mandatory sentences and reducing the capacity of having sufficient funds to engage the community will clearly result in that being wider.
We will focus more on punishment and healing. We will do so many things that will shift the way the justice system works that it will result in many more people ending up in our system.
At one time in the Yukon when I was first appointed to the bench in 1978, we did not have a youth jail. You know what happened? No one wanted to be sending these kids off to Alberta or Vancouver. Everyone sat around in the community and we came up with resourceful ways to keep the kids in the community. Then we built a jail, and suddenly the statistics of the number of kids we put in jail escalated. We built it and we filled it.
When I first went to the Yukon, what drew me there, in addition to many other things that drew Senator Lang there, was the fact that we had a team of justice officials who were dedicated to making that community safe, and they worked weekends and nights to do so. We worked for a year or two desperately trying to make our 14 communities safe. We failed. Guess why? We left out the most important element and, I suggest to you, the most significant element in reducing crime, rehabilitating offenders and serving the needs of victims, and that is the community. Every single study has said the most effective tool the justice system can engage is the community, and I fear this legislation will shut the door to communities, because there will be a scarcity of money as the jails fill up, and the first thing to go, which has always been the first thing to go, is the new kid on the block. The new kid on the block, in the last 10 years, has been the community justice initiatives, initiatives that have shot out the lights in terms of success.
I suggest that you think of running the justice system like a business. No business would stay alive with 50 per cent returns. No business would stay alive doing the kind of work that we do, which does not make any of our objectives realized. We do not have the confidence of the public because we are not tooled up to do what they are asking us to do. We need to step back and create space for the communities to do what they need to do.
Let us look at what they can do. All the studies indicate that for preventing crime, the best, most effective resource is informal connections, the connections that the kids have to their families and to their community. You sever that, particularly in Aboriginal communities, and you are setting that kid free into a process, on the street, where clearly, as the statistics say, 46 per cent of the Aboriginal youth have failed to complete high school and end up succeeding in getting into jail. What more do we need to know?
As for solving crime, I was just talking before to the new senator, Vernon White, and he is a great advocate of understanding that if you do not have a community engaged, you will not solve crime. I am now trying to help out with the missing women commission in Vancouver. Clearly, the study is indicating and that commission will find out exactly the thing that Mr. Campbell found out in Ontario about Bernardo: If you do not have active community engagement, police have a hard time solving crime.
Second is pretrial detention. I used to put lots of kids in pretrial detention because I had no options. However, as soon as the community got engaged, I had a wealth of resources that suddenly we are able to do things that would make me feel that I was serving the community by letting this kid out and into the hands of the community and begin immediately dealing with his accountability for his offence and rehabilitation. If you do not get into a kid's face with something new and you have to wait until he comes to a trial, a year later in some cases, forget it. By that time it is a game for him. When you visit these kids when they are in juvenile detention centres, they say, "I had the wrong lawyer. I had the wrong judge. If I had only got this other judge, it would have been different. " It is a game to them. From the very get-go, it becomes a game to them.
Furthermore, if parents know that their kid will not get help but just go to jail, I think there will be a lot more not-guilty pleas. You know what? If all the kids got together and said, "We are all pleading not guilty, " the criminal justice system would shut down. We need to encourage these kids to think that the justice system will give them help and encourage the families that the justice system will give them help. The families will participate in a process that is friendly to them, cooperative with them, and is trying to help them out. They will not cooperate with a system that is trying to rip their kids out of their hands and send them to jail.
As for diverting cases, many of the great community initiatives have dried up. Why is that? Because you have a single policeman or single prosecutor who knows diddly squat about the particular community and has this kid and only knows the kid from the criminal record, so he makes the decision to keep him in the criminal justice system. Why? It is because if there is a mistake in the criminal justice system, he will not wear it, but if he sends the kid out on his own net, he will wear it.
As for sentencing, I never thought I had a successful sentence until the community got involved. If you have the community involved, they will make sure you have the resources that will actually make them genuinely accountable and genuinely remorseful and being able to deal with the compensation processes.
With respect to addressing the needs of victims and communities, you cannot do that without the community engagement.
Finally, there are a couple of things that I need to say about it. I spent millions of the taxpayers' money sending people off to professional counselling and treatment programs in the Yukon. They would do the hard work that was required in dealing with the substance abuse problem. However, if they came back to the community without community support, they relapsed. It was a waste of funds.
The next place we need the community is when you send some of these kids off for two or three years to jail, what is there to transition them from jail back to their community? Zip. If you do not engage the way the Americans are now engaging with the re-entry process, where the community gets involved with the youth while they are in detention and begins to develop a relationship and cooperation and begins to re-enter them into the community, we will clearly have more and more kids in our juvenile places and more and more kids, ultimately, in adult places.
I know my time is up; I can see the friendly signal. I do not want the unfriendly signal coming at me. I have a couple of recommendations that I will highlight.
No offence to the Senate, but I do not think you will have much success in getting rid of mandatory sentences. Okay, then cut out an exemption for First Nations like Teslin that are beginning to take responsibility for justice. For God's sake, we need to encourage civic responsibility in communities to step up. Allow them the capacity to do that. Allow communities that have developed partnerships with justice officials to be exempt from that.
My second recommendation is, and I have already given it to you, open up a separate process and give full voice to the victims.
My third recommendation is reward success. We know what works and we know what does not work. We keep rewarding what does not work and not what does work. There are many suggestions about how you can get communities to earn their keep as they are going forward. They can, if they make a difference, earn their capacity to be able to function.
The last the most important thing I would say is, I think, for you, that we cannot afford some political idea to float if it does not meet the best-evidence test. You probably spend more time looking at best evidence in purchasing military aircraft than you do in looking at what you will do with our youth. The Senate is the body that my mom promised me when I lived in Brockville when she came up here and said, "That is the Senate. They are appointed. They look at things without political ideology. They look at the merits. " You need to look at this carefully on the evidence. If the evidence supports it, fine. If the evidence does not, I hope you have the courage to say no.
The Chair: Thank you, Mr. Stuart. That is food for thought, certainly.
Ms. Blouin, before we turn to questions, with the experience you have had with legal aid services, you represent youth who find themselves before the courts or potentially before the courts; is that what you do?
[Translation]
Ms. Blouin: Every day, I am in Youth Court and defend young persons prosecuted under the Youth Criminal Justice Act, and have been doing so for nearly nine years. I have to handle approximately 500 cases a year as a legal aid lawyer.
[English]
The Chair: We will turn to questions. Colleagues, we have 45 minutes, and I know there will be a lot of interest around this table to question our panelists.
[Translation]
Senator Fraser: Thanks to our two witnesses. Those were really extraordinary presentations. You have given us a lot of food for thought.
[English]
I will ask you both, if you could change one thing in this bill, what would it be? Apart from the Aboriginal exemption, which you have already cited; you do not get to say that again, Justice Stuart. What is one other change that you think would be useful?
[Translation]
Ms. Blouin: That is very difficult because there are actually two things that I would change. The first is the lifting of the publication ban; that is really one of the most important things. I believe it must not be extended to include violent offences because then you include far too many young persons.
General deterrence as well; I believe it has no place in our system.
[English]
Mr. Stuart: If I could change it, I would add something to it. Am I allowed to do that or just take something away?
Senator Fraser: Sure, a change can include an addition. This is a theoretical discussion anyway.
Mr. Stuart: I hope not. I would definitely add provision for supporting community engagement. I think the communities have done a hell of a job without money or with just enough money to set them up for failure, without training or any legislative change, which we do not really need. The youth act speaks to that, but there is no funding. There needs to be funding out there. You cannot expect these people to volunteer and compete with the justice system.
I would love to see a pilot project that actually ran a community partnership, justice and community, even community alone against a justice-only system. There is no doubt from my experience working in many different jurisdictions — particularly, I have spent a lot of time working in the United States, and they have a much higher sense of civic responsibility; they do roll up their sleeves and they make huge differences in communities. They have really troubled communities with high rates of crime. If we provided support for communities instead of support for more jails, I would love to see that. I wish you were Santa Claus.
Senator Fraser: We do, too.
Mr. Stuart: I know.
Senator Fraser: That is interesting. Thank you both.
Senator Runciman: Thank you for being here today. It is very much appreciated.
I will let my colleague Senator Boisvenu speak to your assurances that all is well under the current Youth Criminal Justice Act in Quebec, but you did make a comment, and I am not sure if it was in the translation. You talked about the Lacasse case, and you mentioned the drama surrounding that. I personally have a lot of trouble with that, if that is what you said. We had the mother here today. Perhaps I will give you a chance to correct the record.
[Translation]
Ms. Blouin: What I said about that particular case is that the only young person who was involved in that tragic incident received an adult sentence. Consequently, in my opinion, the Youth Criminal Justice Act has proven itself because, in that particular case, he received that adult sentence. So that was deemed to be an extreme case.
[English]
Senator Runciman: I understand your point. It was just the use of the word "drama " in the context of a victim appearing before us earlier.
Justice Stuart, if you have an opinion or something you can offer with respect to some of your fellow colleagues on the bench about the lack of consistency in sentencing, have you seen that as a problem across the justice system in Canada? I will give you a little more time to reflect on this. Earlier I referenced a decision from the Court of Appeal of Alberta in 2010. The court said that judge shopping is alive and well, and that without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Criminal Code are not attainable. The court said this makes the search for just sanctions at best a lottery and at worse a myth, and that if the courts do not act to vindicate the promises of the law, then public confidence diminishes and Parliament will act.
I was wondering if you have any comments with respect to that particular issue and its relationship to mandatory minimums.
Mr. Stuart: I will come at that indirectly, if you do not mind, because I think it is a very difficult issue and it has been around for a long time.
If we were running a hospital and we had set remedies for anyone who showed up, whether they worked or not, we would soon be in real trouble, right? If people showed up with certain symptoms and we used the same remedy over and over again, we would not be doing what the hospital intends to do, and that is to cure.
I think the problem we get into if we have sentencing guidelines in which everyone is using exactly the same thing is that we will not see the opportunities, particularly with youth, to capture the opportunity that the crime presents to be able to find out what the underlying causes of that particular youth behaviour might be.
The problem with focusing on sentencing and making sure they are the same is that it does not recognize that every one of these kids is different. It does not recognize that there is a different opportunity for each of them to be able to go forward. If we deal only with the symptoms and not the underlying causes of these crimes, we will not go forward.
It is interesting. Jessie Scarf, an elder in the Yukon, was in a sentencing circle with a youth once, and this kid had a record of 22 separate offences. The Crown passed the record around to everyone in order to show a record of failure and why we should not be giving this kid some kind of a chance. When it came to Jessie Scarf, she held up the record and said, "Yes, this is a record of failure; 22 times the justice system has dealt with this youth and 22 times you have failed. What is the risk in giving us one opportunity to do something different? "
I worry about this even more with youth than I would with adults. The Court of Appeal that you talked about was really talking about adult offenders, not youth offenders.
Senator Runciman: That is right.
Mr. Stuart: Therefore, it is especially troublesome when we are dealing with youth to say to all the judges across the country, whether they are in the North with fundamentally different social and cultural conditions or someplace else in downtown Vancouver, all kids will be dealt with the same. Judges then need to find themselves within this narrow bar of discretion. Where we have had those sentences, like in Minnesota and several other states, that sort of approach has been a disaster.
Senator Runciman: I am having trouble understanding where you are coming from on this.
Mr. Stuart: I am saying that I do not think judges should be aspiring in every single case to have exactly the same sentence as a brother judge in another jurisdiction.
Senator Runciman: Yes, but there can be some pretty significant differences. In this particular case, this individual was given a 90-day intermittent sentence and probation for raping an unconscious girl. You can understand the community outrage with situations like that.
Mr. Stuart: Yes.
Senator Runciman: I am not talking about uniformity across the board. We are talking about consistency in dealing with some very serious crimes that offend society at large. Members of the bench have, in many instances, created this lack of appreciation for the Canadian justice system because of the decisions they have taken.
I think that is what has really encouraged this government to look at the whole issue of mandatory minimums, because of the failure of so many of your colleagues to deal appropriately with many of these very horrendous, horrific cases before them.
Mr. Stuart: I do not know the facts in that particular case. Do you know the facts in that particular case?
Senator Runciman: I am just reading from the Court of Appeal judgment.
Mr. Stuart: I am not saying that there should not be some guidelines. What the Canadian system has and ought to use more effectively is the appeal process. We ought to have the same as the Americans, one or two judges that sit readily and only look at sentences. If there is a sentence way out of whack, some judge is having a difficult day or is exercising some discretion he should not.
The Americans have an easy system in some of the states in which you can have the sentence looked at. There are a couple of judges who do nothing else. Appeal court judges do nothing else but deal with the sentences. They get a real sense of what ought to be the standard, and they can save what might be an outlandish sentence.
The Chair: I would say this to both witnesses, not just to focus it on Justice Stuart.
Mr. Stuart: You can focus it on me.
The Chair: It is that respect for the bench, even though you are retired. We have 35 minutes, if you could both keep your answers as concise as possible.
Mr. Stuart: I will.
Senator Cowan: I want to get back to the point that Senator Runciman raised with you a moment ago, Justice Stuart. I know there are some restrictions on the capacity of appeal courts to interfere with sentencing, but yesterday he referred to what he called the abuse of judicial discretion.
Could you make some comment on how you exercised your own discretion and how you see that your fellow judges have exercised their discretion in these kinds of instances, and the importance of discretion in sentencing? As a trial judge, you hear all the evidence; you do not just read the newspaper reports the next morning. You see all the evidence, you hear all the arguments and you hear submissions from both sides. Can you comment on the importance of preserving judicial discretion in that situation and the role of appeal courts in reviewing sentencing?
Mr. Stuart: The best response I have is the one I have already given. I think we probably should have a specialized appeal process that responds to anything that looks like it is way out of whack with what the community expectation might be.
Senator Cowan: Thank you.
[Translation]
Senator Boisvenu: Thank you very much for being here. The last three murders committed by minors in Quebec in 2011 were committed as a result of drug problems. Three young persons 14 to 16 years of age, or 16 and 17 years old, assassinated older individuals, two of whom were their own mothers.
Ms. Blouin, I met groups of stakeholders in your region less than a year ago. In the Montérégie area, they are currently monitoring nearly 200 girls 12 and 13 years of age who are engaged in prostitution to repay drug debts.
Youth crime is changing mainly as a result of the rise of street gangs and especially their influence on young people. The school drop-out rate, which is very high in Quebec, is not unrelated to that. These are easy targets for these people. So we now see them use drugs when they are very young, resulting in drug debts, and then the only way to repay those debts is through prostitution among young girls and break-ins for the boys, which often turn tragic, as we recently saw in Quebec.
I am not saying that the Quebec model is perfect; there is a need for improvement. Between 2004 and 2010, we see that there was a 37 per cent increase in the number of crimes committed by 12-year-olds. What concerns me is that young persons are increasingly involved in some form of crime at younger and younger ages. I remember that, in my time — I am 63 years old — the little bums were 15, 16 or 17.
Ms. Blouin: May I answer?
Senator Boisvenu: I will just finish. However, today, young people are younger, and we see that education problems are now appearing at the primary level, for all kinds of reasons.
Mr. Stuart will be pleased to learn that yesterday, the minister announced a $7.7 million investment in western Canada to support crime prevention through counselling, skill development and mentoring models. The government is concerned about balancing support to the communities for these young people who belong to street gangs with having tougher laws and measures.
A psychologist in the Canadian correctional system said that, in cases where we are dealing with young persons who present an obvious danger, giving them light sentences has the opposite effect on their rehabilitation compared to a stiff sentence. It is like accepting the fact that they are offenders. We really must balance rehabilitation with incarceration.
I sensed a contradiction in your presentation. You say that Bill C-10 will mean that virtually all young persons may be convicted for violent crimes, and you say at the same time that you meet a lot of young people and that there is not that much violence among young people.
How can you say that Bill C-10 may affect all young people and that there is not that much violence among the young people you meet? You are proving that Bill C-10 will strictly focus on youths who are really violent, and they are the minority.
Ms. Blouin: There are a number of parts to your question. First, when you say that youth crime is on the rise, that is not what I read in the legislative summary of Bill C-10. What I read there is that youth crime is declining.
Second, when you say that 12-year-olds are committing more crimes today, we should ask ourselves the question and go and see whether that is because more crimes are being prosecuted. We work with adolescents who are immature and commit immature crimes. Sometimes, when you think of an assault with a weapon committed by an adult, you think of an assault with a firearm or a knife. When you see some prosecutions of young offender cases, the weapon in question may be a snowball thrown in a schoolyard. That is an assault. That is the type of offence that sometimes winds up in court. We have seen assaults with a weapon involving a snowball, a pot of water and a thrown glass of water. These are assaults with a weapon that must be dealt with, but do we have to impose a sentence as a general deterrent on a 12-year-old who has committed that type of assault with a weapon? No. And that is why the judge's discretion is important for that type of offence, because some offences are tried in Youth Court and are sometimes, and often, immature offences.
Senator Boisvenu: Do you believe that Bill C-10 will eliminate all judicial discretion?
Ms. Blouin: No. The definition of violent offence has been amended in order to be consistent with the Supreme Court's definition given in R. v. C.D.K. in 2005. However, crimes of recklessness have been included in the definition of violent offence, and the Supreme Court clearly excluded that definition of violent offence on the ground that it would run counter to the objective of the act, which was to reduce the incidence of incarceration of young persons.
[English]
The Chair: We are going to have to stop at that point, Ms. Blouin. Otherwise, we will not get too far with our other senators. I apologize for having to interrupt you.
Senator Baker: Judge, would you not agree that in order to judge whether or not a sentence is appropriate, one would really have to go back and look at the transcript of the proceedings, what was behind an agreed statement of facts, if there was one, and not just go by the headnotes of a decision or a newspaper account? Would you not agree?
Mr. Stuart: Yes, absolutely.
Senator Baker: I should not be saying this, but I think you were an activist when you were an ordinary judge before becoming the chief judge. In some of the judgments that you awarded, you would appoint lawyers for those who were not represented and assign payment for the Attorney General, outside the rules, but they were upheld by superior courts. I admire you for that.
You are described today in court judgments for two things, mainly, in the past year. You are quoted extensively for your judgments on FASD concerning fetal alcohol syndrome. Those quotes used today, in this jurisdiction of Ontario by Superior Court judges, are rather extensive for your expertise and your contribution. The other one is the circle, where you went outside of all the rules of court and you threw them out. You devised a system that has survived your tenure on the bench.
How would you interpret those things today, in a modern setting outside of a small community in the North, of involving the community in the process? Is there a way of doing so?
Mr. Stuart: I get asked that a lot. The answer is easy. It is much easier and much more effective to run a circle in downtown Ottawa or Boston, downtown St. Paul, downtown Minneapolis, downtown Chicago, downtown Toronto, than it is in Old Crow. In all of those other places, unlike Old Crow, there is not 75 per cent of the community involved substance abuse and an equal number unemployed. In Old Crow there are not a lot of retired teachers, retired sports instructors, musicians, et cetera. The community does not have those resources, yet even in those communities, communities like Teslin and other communities, they are really making a difference.
Yes, I do think it works. It works because it creates a safe place for the community to have a difficult conversation about things. Those circles do not end up talking about the spousal assaults. They end up talking about spousal assault in the community. They begin to give the message to communities that start with a notion that, "Gee, I cannot get involved in those kinds of justice things; what do I know? I know nothing. " When they finish getting involved they understand that if they do not get involved, the difference will not happen.
Yes, circles can work even better. In fact, somewhere in this room is someone who is doing it with youth in downtown Toronto very effectively.
Senator Baker: On the FASD references to you in recent court judgments and the great quotes that came from you, how does that fit in with mandatory minimum sentences? Would you agree they are below the average range, low to high, that your mandatory minimum is even less than that, and so how does that fit into your words that are quoted daily in our courts regarding FASD?
Mr. Stuart: Why would we put an FAS person in jail? Why are we putting these mentally challenged people in jail? I put one in jail recently just before I left the bench, in a case that basically terminated my career. Everyone in the system did their job; the job did not get done. This kid was FAS and committed the most serious rape I ever had to deal with or have heard about, but sending him to jail will just send him out of jail a much more dangerous offender, much more disconnected to those informal community controls than he ever should have been.
That is what we have to think about. Look at the Americans: 900,000 people every year walking into communities. We do not want that to happen. It does not make any sense to have a mandatory minimum for that.
The Chair: What we understand about Bill C-10 is that it is targeted to youth who commit serious, violent, repeat offences. As you know, it has been expanded to include reckless behaviour, and I believe that arose from the drive-by shooting in Toronto when youth killed some innocent bystanders. However, it is not to be interpreted as a blanket permission to incarcerate youth and, of course, there is the objective of providing further protection for society.
The point is that there are circumstances when offenders must be removed from society for a period of time in order to protect society while they are incarcerated. It seems to me it is not an either-or situation, not either rehabilitation or incarceration. You know this; you have lived it. They both obviously have to be in the mix, and the community has to be part of that.
I hear you and Ms. Blouin speaking as if it is either-or: There is either incarceration or there is rehabilitation, and either the state looks after rehabilitation or it is the community. It does not strike me as that simple. Maybe I have misunderstood what you have said or perhaps your interpretation of Bill C-10.
Mr. Stuart: No, maybe that is just the passion I have. I would be happy with the senator's idea of equal expenditure on prison and rehabilitation. If for every dollar we spend on prison we spent a dollar on rehabilitation it would make me happy. Of course jail has to be one of the tools but not the only tool. That is my point.
I tried to say at the outset that I am not against the use of jail. I used jail often. If it is worked in with other things, jail will be effective, but if you are just saying jail or nothing, which is what most of the judges do because that is what the code in many cases will allow, then it is a bad use of jail. Using jail with other remedies, particularly engaging the community, gets a bigger bang for your buck on the dollars spent on jail.
The Chair: I am taking more time than I should with this, but it is critically important. From what we have heard from the ministers, Minister Toews and Minister Nicholson, and what we have heard from law enforcement officials in evidence here today, they all recognize this. I have yet to hear anyone say it is just incarceration that is the beginning and the end of it. I have not heard anyone suggest that involving the community and involving rehabilitation is not a critical part of it.
Mr. Stuart: That is why I am looking at it from 10,000 feet. If you spend that much money on jail there will not be any more money for rehabilitation. There will not be enough money to be effective with all the other tools we are trying to use in the criminal justice system.
Be warned that 100 years ago jail was only supposed to be used for the most serious offences. Now look what happens. You open a door, mandatory minimums grow and then you have a problem.
[Translation]
Senator Angus: Ms. Blouin, you say you are in Youth Court in Montreal nearly every day.
Ms. Blouin: In Longueuil.
Senator Angus: You represent the accused?
Ms. Blouin: Yes, always young persons.
Senator Angus: And one of the two things you said you would change in Bill C-10 was publication. Can you explain to us why?
Ms. Blouin: Under the current act, it is possible to publish the identity of a young person in the most extreme cases, such as those involving the former designated offences, so in cases of murder, aggravated sexual assault, attempted murder and manslaughter.
The current wording of Bill C-10 opens the door to all violent offences, which would result in publication of the identity of a 12-year-old adolescent.
The act made provision for those cases, but these are extreme cases in which offenders were liable to adult sentences. So it was in the most serious cases that the act stipulated that, if adolescents received an adult sentence, their identities would be published, or if they received a specific sentence, but for that type of offence. Then there was a possibility that their identity would be disclosed.
But now, what is provided — and from the way in which it is drafted, I do not know whether that was Parliament's intention — opens the door to all adolescents from 12 to 17 years of age and also to all types of violent offences, which can be interpreted very broadly.
The Attorney General of Canada stated, in the reference of a decision by the Quebec Court of Appeal, that the protection of information concerning an adolescent was the cornerstone of our youth criminal justice system. To the extent that we permit that disclosure, in really a lot of cases, we are clearly no longer respecting the cornerstone of our system and the system has just been disrupted. To my mind, this very much affects the criminal justice system.
Senator Angus: The problem is that young persons 10 or 12 years of age are being compared to 17-year-olds.
Ms. Blouin: There is obviously a difference between a 12-year-old — you can be prosecuted starting at the age of 12 — and a 16-year-old. However, in the case of a 16-year-old who fights in the schoolyard and injures someone, who is involved in a physical altercation with an individual who will never be seen by the court again, should we really jeopardize the disclosure of his identity? I do not believe so. And disclosure of that information goes to the very heart of our system. That runs completely counter to rehabilitation and stigmatizes young persons.
Senator Angus: I understand your point of view, and what is the second thing you would like to change?
Ms. Blouin: It is general deterrence. I believe it has no place in the youth criminal justice system. For young persons appearing in court, appearing deters them from returning because they are impressed by the system when they appear in court. In many instances, they are ashamed and ask us whether everyone will really be staying in the courtroom. They are not proud of what they have done. They are embarrassed; their parents are present, and they have to receive punishment before the court.
There is clearly a deterrent effect, which is produced by our justice system, but general deterrence in itself has no place in our system, and judges must be able to use their discretion at times to impose a sentence that is appropriate to the young person concerned. In any case, it has been demonstrated that general deterrence does not help prevent young persons from reoffending either. I really believe this contradicts sentencing principles.
For example, consider the reprimand, a sentence that is available to Youth Court judges. In what context can a young person be reprimanded if the judge must consider general deterrence?
Senator Angus: You also claim that Bill C-10, as drafted, is vulnerable and could be considered ultra vires. Give us an example of what you mean.
Ms. Blouin: For example, considering the confidentiality of information, which is viewed as a central feature of our youth criminal justice system, there is also the issue of sentencing. If young persons are now tried as adults and sentencing criteria are the same for adolescents, they will no longer be entitled to their presumption of diminished moral culpability which the Supreme Court has recognized.
The presumption of diminished moral culpability applies to all proceedings. The Supreme Court has said so. That means that young persons are entitled to be treated differently from adults. However, if they are now treated in the same way as adults, they will no longer be entitled to that presumption. It is clear in my mind that there will be challenges. And one of the major differences between our youth justice system and our adult system is the confidentiality of information.
If it becomes a general rule that disclosure of a young person's identity may be requested, then we have clearly just undermined the presumption of diminished moral culpability. That is my opinion, and I am sure there will be constitutional challenges on that point.
[English]
The Chair: Colleagues, we have four senators who wish to ask questions, and I will do everything I possibly can to fit you in.
Senator Jaffer: Thank you very much for both your presentations. I have learned a lot from you.
Justice Stuart, I have been a great admirer of yours for many years. I also worked in the Yukon with Tommy Dohm, who knew you well, and I know of your work.
I want a clarification from you. You spoke passionately about how the offender needs to be in the community. I think you were going further — I do not want to put words in your mouth — that there needs to be, from the offender, an accountability to the community, and the community needs to take responsibility for the offender. We have had the Minister of Justice from Nunavut speaking about how they do not have the jails and that people who are convicted will have to be sent south. I would like you to define what you mean by the "community. "
Mr. Stuart: People who show up and are interested.
Senator Jaffer: It has to be in the community, in the place where the person is living, not in the south, not somewhere else?
Mr. Stuart: Yes. You probably have six or seven communities. You have your colleagues at work, you have your family; if you belong to the church choir or whatever, you have all of those. When all of those people gather and try to support a youth, that can make a difference.
I used to try to scare the hell out of kids, you know, "You are going to do this. " It did not work. Maybe it worked for a month. They can be the community that comes forward. It does not have to be the same people, although sometimes some places have now established justice committees and they are ex-policemen, ex-judges, as well as ex- schoolteachers, health officials, et cetera. However, the core of community justice is the volunteers who come forward about that individual, and also from the victim as well, so whether the victim shows up or not, other people do. That is the community that needs to make the hard moral decisions about what will happen.
Senator Jaffer: You are very much known for setting up circles. Could you expand on how effective the circles you have set up have been?
In relation to the victim's voice and their rights, you have spoken about this, but can you expand upon it? What do you see as more rights for victims?
Mr. Stuart: It is easier for me to talk about victims in two seconds than circles. I would just say about circles that it is an ancient idea whose time has come. It is not something new; we are just calling it something new. It is what every family, community and culture did at one time when there were no disposable people.
The thing about victims, I really believe that the justice system will serve the community better if it focuses on harm. When you focus on harm, you have to focus on the victim. I think there should be, as I said, a separate system for victims. I think the victim should have a full voice. I do not know why we fetter the victim's voice. I think judges are capable of understanding the emotion that victims bring and will not be moved excessively by that, one way or the other.
However, the victim needs to be heard. The offender needs to hear the victim directly. That is as important as anything else. These kids who commit these offences do not understand that someone is hurt. A break and enter of someone's home they think is just about stuff the insurance company will replace. They do not realize what is stolen is the safety of that home, the confidence they have to be in their home in safety. That is what is stolen, and when the victims say that directly to an offender, that makes a difference.
[Translation]
Senator Dagenais: Thanks to both our guests. My question is for Ms. Blouin.
Earlier I heard you say that the bill might be subject to constitutional challenges, but is that a sufficient and reasonable ground to defeat the bill?
We know, for example, that the bill concerns young persons who have committed very serious crimes. I heard you say that sometimes youths are not entirely aware, that they may not even be mature when they commit a crime. And yet many young persons are aware when they commit a crime, will leave the scene, will try to destroy evidence, will avoid arrest, and, when they are arrested, their first reaction may even be to tell police officers that they have a right to remain silent and that they have a right to a lawyer. And this is for young persons who are not mature. I would like to hear what you have to say on that subject.
Ms. Blouin: Most of the time that is not what the young persons we see every day tell police officers. That may be a class of adolescents who are repeat offenders. We should not disregard that fact; there are adolescents who are repeat offenders. Perhaps they are used to the system, but most of the young people we work with and whom we see every day do not behave that way. It is somewhat the reverse; that is to say that they will immediately talk to police officers and admit they were in the wrong.
That is the very reason why the Youth Criminal Justice Act contains a specific provision concerning supplementary guarantees to protect statements made by young persons. Police officers proceed under that section in certain measures and even try to encourage young persons to call their parents or a lawyer before speaking with them.
Provision has been made for that guarantee because we know that adolescents are often more vulnerable and will speak directly to authorities when they are apprehended. Obviously, the same will not occur if you are dealing with a young person who is a reoffender.
To come back to the bill as it concerns pre-trial custody and what is being sought, which is somewhat peculiar, I believe it will have the opposite effect. The system currently works very well and young violent reoffenders can be detained before their trial.
However, under these provisions, I am telling you that a young person who commits assault causing bodily harm and who has no record, who has no outstanding charges but is dangerous, cannot be detained before his trial. This is what is in fact stated in the provision because provision is made for an offence. To be detained, the young person must have committed a serious offence. A serious offence means at least five years or more in prison. For assault causing bodily harm, we are talking about a maximum sentence of 18 months. That adolescent will therefore not be affected.
I find it hard to understand why a system that currently works well is being changed. And even with regard to the reverse onus of proof for the Attorney General under this provision, there will be no such thing. Currently, for a young person accused of murder who appears in court, pre-trial custody means that he will not be entitled to a presumption of non-detention. In other words, it is up to him to prove in court that he should be released.
The current provisions are how we operate at present. Now under the proposed bill, the effect is reversed; it states that it is up to the Attorney General to convince the judge that detention is necessary.
I find it somewhat unusual that anyone would want to change a system and, at the same time, say they want to retain and facilitate the rules of pre-trial custody because that is not what I conclude when I read the provisions.
[English]
The Chair: Thank you, Ms. Blouin. Senator, we have to move along. I appreciate your cooperation.
Senator Frum: Ms. Blouin, I want to question your assertion earlier that we would see publication bans lifted. You gave an example that if there was a schoolyard fight and it involved 12-year-olds we might see that. I do not think that is an accurate characterization of what the bill says. The bill says that the publication ban can be lifted when a youth has been found guilty of a violent offence and certain other factors exist. The court must be satisfied that the young person possesses a significant risk of committing another violent offence, and the court must be satisfied that the lifting of the ban is necessary to protect the public against that risk. Further, the onus is on the Crown to satisfy the court that this test is met before the court can lift the ban.
These are the conditions, and it is then left to the hands of the judge. There is judicial discretion in lifting the ban. I would like you to respond because that is not really the way you described it.
[Translation]
Ms. Blouin: If we have to apply this provision every day, it will give rise to court challenges, which will have the result of paralyzing the courts because, every time, we will have to consider the question whether the ban should be lifted when a violent offence has been committed.
For example, uttering threats is considered a violent offence. Consequently, a youth who is having problems with youth protection authorities, who is placed at a centre, who, in anger, tells a caseworker that he is going to hit him — a young man who may even have psychiatric problems — is considered as committing a violent offence within the meaning of the act and the current definition. A hearing will have to be held because the judge will have to consider the question: must I disclose the identity of this young person out of fear that he may commit another violent offence? There is that risk because this is a young person who has psychiatric problems and who will probably commit another offence, who, no doubt, will utter more threats. So this clearly undermines the entire principle of confidentiality for young offenders. Should we jeopardize this fundamental concept of our youth criminal justice system?
Earlier Mr. Stewart mentioned that young people will plead guilty in court less often. They will stop cooperating with the system if they know there is a risk their identities will be disclosed if they plead guilty to that type of offence, something that could affect them for the rest of their lives. We are talking about disclosure that may be permitted in a case at the adult level. Consequently, information on a young person who commits an error of youth or who is suffering from psychiatric problems may be disclosed until he is an adult and even afterwards. Once the information is disclosed, it remains available to the public for life. That therefore entails serious consequences for young people.
The courts will obviously have to consider the extent to which the purpose of that is to protect the public. There are already provisions in the act permitting the disclosure of this information where necessary and where there is some urgent need to protect other persons. Among other things, I am thinking of section 127 of the act, under which application may be made to a court to release certain information. I also would not want the Canadian public to think that all information is confidential. There are already a number of exceptions to the act, and victims have a right to be well informed about a young accused.
[English]
The Chair: We will have to move on, senator.
I think the question that Senator Frum was putting to you had to do with your interpretation of when the lifting of the publication ban would apply and how you interpreted the act. That is what I took from her question. I am not sure I heard that answer in your response. In any event, perhaps it can come up through Senator Lang.
Senator Lang: I know we are coming to an end here.
The Chair: We will run over a bit.
Senator Lang: I would like to welcome the witnesses, and specifically Justice Barry Stuart. It is good to see you again, having shared the same history in some ways with you in respect to your tenure in Yukon.
There are a couple of areas that I want to bring to the attention of the witnesses. We have been in hearings very intensively for now the third day, from morning until night, and there is a real thread from the public appearing here that there is a lack of respect and a lack of confidence in the justice system. Rightly or wrongly, there is a real sense that the justice system is not representing the victim nor meeting the expectations of the public. One can argue why, but that message is definitely coming through loud and clear.
One of the other areas that has come through — and this will lead me to my question — is the fact that this bill is designed to deal with repeat offenders, repeat violent offenders, sexual offenders, some of the most serious crimes that one could commit. To put some moral compass there, we have a minimum sentence put in place for the judiciary to say the public views this seriously and it should be dealt with accordingly by the judicial system.
One thing that also came up had to do with repeat offenders, especially in the area of youth offenders. Justice Stuart earlier alluded they might have 21, 25, in one case maybe 60 charges because they have gone before the court, pled not guilty, returned to the street and then are charged again and again; and then instead of Justice Stuart's house getting broken into, Senator Frum's house gets broken into next as this soap opera continues until they actually do get to court and are dealt with.
Justice Stuart, you stated in your opening remarks that you did not need more money for the judicial system. In fact, you felt that steps could be taken to run it more efficiently and do its job better if the justices took responsibility for looking at how the process worked.
Could you outline for us today at least five steps that could be taken within the territorial or provincial judicial systems, or the federal system, to help that system so we can get to the situation where we can deal, especially with these young people, in a manner that is expeditious as opposed to the situation now where those who know the system can avoid the system for a long period of time and subsequently all of a sudden you are dealing with a situation that no one wants to talk about?
Mr. Stuart: Not fair.
Senator Lang: All I want is five.
Mr. Stuart: Not fair. Okay, I will take a shot at it.
If the community is involved, they do not have to wait for the crime to happen. Everyone in the community knows Danny is a bad boy and is going to get into trouble. Everyone knows. They just step back and watch. We have removed most of the ability for a village to raise a child, so we need to re-engage that. The earlier you intervene, the more effective the intervention. Conversely, the earlier the criminal justice system gets in and the deeper we get in, the longer we keep that person as a resource for us.
First thing off the top, we could save an awful lot more money if we backed the justice system up and spent a lot more time in putting our money into education, health and those other things. We are misspending it to put it in the justice system expecting we will rehabilitate these young kids. That is the first thing.
Second, I would say we spend far too much money on policing. We have in Old Crow four or five RCMP officers who are in and out of that community every three years. We need to be able to create locally based police. Over and over again, locally based police are cheaper and more effective because they have much better contact with the community. They can get into prevention much more effectively than strangers can.
Next, we do not need as many judges as we have. Clearly, Senator Lang, there are many people in Yukon who came forward to be lay Justices of the Peace. They know the community better. They can effectively respond right away, do not have to wait for the court circuit to come. They are much cheaper than judges, and they know the community better. We need to figure out how we can best position people to do the best work.
We clearly do not need to put these kinds of people in jail. I have no problem with using jails for serious offences; I have a lot of problem with using them all the time, and with using only jail. We need to do something else.
In some ways, these are the brightest kids. That is the real tragedy in the Yukon, and many other places too. These are bright kids who are rebelling. We need to find out what the cause is. These are usually kids who are emotionally alone or abused, sometimes sexually. Many of these kids are victims. That is why I want to give a full voice to victims, because one day they are a victim, the next day they are an offender, particularly in sexual cases. That is why we need to address that.
When we create drug courts we need to get the judges out of there. We are too expensive a resource. We do not know anything about substance abuse and rehabilitation. Get people in the drug courts who know what they are talking about. It is crazy to have judges there.
We need to put the money where it will do the most good, not the least good.
I could give you 30 if we had the time.
The Chair: You chose your top five and we will settle with that.
That concludes our time with this panel. It is satisfying and interesting for members of this committee to hear all the different sides of the issue. The two preceding panels today had somewhat of a different approach and different conclusions in many ways, with the exception that there is always emphasis on the need for rehabilitation.
Justice Stuart, your emphasis on the need to involve the community has been a common theme throughout. You brought up a side of the issue that somewhat contrasts with what we have heard, which is exactly what this committee has to hear, because we have to sort out what works best and how it fits with the legislation.
You have both done an admirable job. Your comments were thoughtful and came from first-hand experience. We very much appreciate it.
We are continuing our study of Bill C-10, the safe streets and communities act. In particular, we will continue our consideration of Part 4 of Bill C-10, which concerns the Youth Criminal Justice Act. We have had a number of panels appear before us previous to today, and we are very pleased to have the current panelists before us. We have three organizations now before us. From UNICEF Canada, we have Marvin Bernstein, Chief Advisor, Advocacy. From the Ontario Federation of Indian Friendship Centres, we have Juliette Nicolet, Policy Director. From the Canadian Council of Child and Youth Advocates, we have Mary-Ellen Turpel-Lafond, President, who you will note is appearing by video conference from Vancouver, and here in Ottawa we have Sylvie Godin, Vice-President.
We will proceed to opening statements, starting with Ms. Turpel-Lafond.
Mary-Ellen Turpel-Lafond, President, Canadian Council of Child and Youth Advocates: The Canadian Council of Child and Youth Advocates is a council comprised of child advocates from across Canada. When Bill C-4 was being considered, we submitted a formal brief. We are appearing before you today. Three of the advocates, myself from British Columbia, Ms. Godin from Quebec, and Irwin Elman from Ontario have submitted briefs to the committee. I am presenting with my colleague Sylvie Godin on behalf of the national body to express our concerns about Bill C-10 and some of the amendments to the YCJA and how they will affect some of the most vulnerable children and youth in Canada. I know we have a brief time, so we will just highlight a few points.
The first point of great concern is the ability to identify and name offenders, the amendments to section 75, which will allow for the publication of the name of a young person. This is a very broad change that would apply to an extensive range of offences, including, I note, section 266 of the Criminal Code, which is common assault, one of the most commonly presented offences in the youth court, and which could potentially lead to the identification of the names of young people in a broad range of cases.
The council is concerned about what that might do for the welfare of young people and whether that is consisted with their human rights and consistent with the UN Convention on the Rights of the Child. We in particular want to bring to the committee's attention our concern that the young people who do come into conflict with the justice system are disproportionately young people who have experienced abuse and trauma. They may be coming out of the child welfare systems or may be in child welfare systems. They are disproportionately Aboriginal children. They are often children with complex and special needs. The idea that they will have their names published is a very serious issue that we feel has not been adequately addressed in this bill and for which we encourage you to take a strong approach and see that the rights of children are uphold.
In particular, we note that for some groups of offences, some people will, in fact, seek notoriety and want to have their names published. This is something that many of us see while working to combat street level gangs with young people. It may be required that they get their name published in order to earn stripes or notoriety in a gang. This will be with them for the rest of their life and may make it very difficult to work on their rehabilitation and their protection and reintegration into society, so it is a major issue.
One other issue that we wanted to highlight briefly is the use of extrajudicial sanctions and police record keeping. Essentially, the bill calls upon a new CPIC-type record of the times you used extrajudicial measures. Extrajudicial measures are very important. They have been very successful in provinces with low crime rates, very pro-social provinces like British Columbia and Quebec that have some of the best outcomes in terms of safety and well-being of children. If a record is created, that record can be used in a way that will compromise the ability of some of these systems to continue to use community measures to hold young people to account for wrongdoing outside the criminal justice system. We are concerned about the cost of that and the use of that police record keeping. We think the resources would be better invested in community justice and community solutions.
A final brief point I will make is a broader concern that the council has, which is that the bill and the amendments do not adequately provide for children with complex needs in terms of mental health, developmental disabilities like FASD and other challenges. Many of those young people find themselves in youth custody as a substitute for proper social services. We do not feel that the bill has adequately provided for an understanding of their circumstance or for ensuring that they are pushed out of criminal justice institutions and solutions and into proper supports.
We also wanted to note for the committee that many of us — my colleague from Quebec will speak to this, I believe — were involved in the consultation process that the minister engaged as a prelude to introducing Bill C-4. We participated in each province and territory in a consultation. When the final report was prepared, we did not see evidence in the final report of support for some of the amendments in the bill, so there are things that have found their way into the bill that were not part of a consultation process.
Furthermore, we were assured in that consultation process that there would be some unique consideration of the impact of the initiative on vulnerable populations like Aboriginal children and that there would be an appropriate consultative process there. I do note the national chief spoke to your committee yesterday and identified this concern. It is also a concern of the advocates.
I will leave it at that and turn to my colleague from Quebec. Thank you for inviting us, and I look forward to responding to any questions in due course.
[Translation]
Sylvie Godin, Vice-President, Canadian Council of Child and Youth Advocates: Thank you for welcoming us here today. When there are two of us, the major challenge is to share the five minutes allotted for our presentation. So I will continue quickly, emphasizing other aspects of the bill of concern to us.
The new principles of denunciation and deterrence for sentencing purposes are principles simply imported from the adult criminal justice system. They contradict the objectives of rehabilitation and reintegration that must remain central to the youth criminal justice system.
In my everyday capacity, I am vice-chair of Quebec's human rights and youth rights commission. We are very much focused on respect for rights, and, as you will understand, my approach is largely influenced by compliance with the Convention on the Rights of the Child, but also on compliance with the findings of the UN Committee on the Rights of the Child. According to the committee, the traditional objectives of criminal justice, such as punishment and retribution, must yield to objectives of rehabilitation and restorative justice in the handling of young offenders. This is entirely reconcilable with the concern for effectiveness in the field of public safety.
Another aspect that I would like to highlight is the obligation to keep a file on extrajudicial measures and the use of previous extrajudicial sanctions. Obviously, the proposed amendments would require police departments to keep a file on extrajudicial measures taken with respect to every young person and to require that they be considered at the time of a custodial sentence order, whereas, under the current act, only convictions are taken into consideration. Once again, this proposal will violate a directive issued on the subject by the Committee on the Rights of the Child, which has emphasized that an admission given by a child in the context of diversion measures must not be used against him in any eventual judicial proceeding.
I would emphasize the amendment to the principle of fundamental justice found in clause 3. I refer to the report that Canada submitted to the Committee on the Rights of the Child on January 4, which contains statistics showing that the number of minors sentenced to prison terms has declined considerably since the act came into force in 2003.
That report shows a 45 to 56 per cent reduction in the number of criminal incidents caused by a minor and involving a charge since the act came into force.
These are obviously Canadian government statistics; I would not want to get into a debate on statistics, but these figures show that, while making rehabilitation and social reintegration a prime objective of the youth criminal justice system, this has also greatly contributed to public security. Consequently, rehabilitation and reintegration should remain priority objectives of the act, not just means as proposed under Bill C-10.
In closing, I would submit the following question to you: since certain proposed amendments stray from the fundamental principles of the criminal justice system, how can you reconcile the associated risks, which have been strongly denounced, with the findings of the Supreme Court and our international responsibilities with respect to the UN rights committee?
[English]
The Chair: Thank you, Ms. Godin. Now from UNICEF Canada, we have Mr. Bernstein.
Marvin Bernstein, Chief Advisor, Advocacy, UNICEF Canada: Thank you for the invitation to appear today. We filed a comprehensive submission with the committee, and some speaking notes have been distributed to the members of this committee. I will try to condense some of my remarks to fit within the time parameters.
The position of UNICEF Canada is that all proposed amendments to the Youth Criminal Justice Act, which are set out in Part 4 of Bill C-10, should be removed from the bill and that any such amendments should be introduced in a separate youth-focused bill, but not until such time as there has been an independent and transparent assessment of the compliance of these proposed amendments with the Convention on the Rights of the Child and their conformity with evidence-based research and best practices within and outside of Canada.
There are some suggested key action steps in response to different areas of concern. The first is to treat changes to the Youth Criminal Justice Act separately and not in an omnibus bill. In our submission, it is a flawed premise to include proposed amendments to the Youth Criminal Justice Act in a special part of a larger omnibus crime bill that essentially deals with offences committed by adults. Youth justice is different from adult justice because young people under 18 years of age are not yet mature adults. In particular, their developmental stage, their vulnerabilities and their potential for rehabilitation require age-appropriate measures.
This approach of bundling various bills appears to be inconsistent with the ordinary rules of statutory interpretation. That is, we have in Bill C-10 a protectionist approach to offences against children in one part, being Part 2, and then we treat young people as independent actors who can be severely penalized for their actions in another part, being Part 4. Such internal inconsistency within one piece of proposed legislation calls into question the overall legislative intent and coherence of the bill.
I would encourage the Senate committee to ask for the Department of Justice's report assessing compliance with the UN Convention on the Rights of the Child, and as a Senate committee, to make your own independent assessment as to whether any of the proposed changes to the Youth Criminal Justice Act contravene Canada's obligations under this binding international treaty, to which Canada is a signatory. In our view, that should be done before Part 4 of Bill C-10 is enacted.
In our submission, many of the provisions in Part 4 of Bill C-10 contravene Canada's obligations under the Convention on the Rights of the Child. They are listed on page 3, and I will not take the time to go through them now.
When the Minister of Justice and one of the senior counsel of the Department of Justice testified before this committee on February 1, they both confirmed that an assessment had been carried out in relation to Bill C-10 to determine consistency with the UN Convention on the Rights of the Child, and the conclusion reached was that there was such consistency or compliance. When asked to provide a copy, the senior counsel stated that she could check on that, but she thought it was part of a cabinet confidence.
I would respectfully submit that a copy of this assessment compliance report should be pursued by this committee with a request that it be made public. This is particularly important since other reputable organizations, such as the Canadian Coalition for the Rights of Children, Justice for Children and Youth, and Defence for Children International-Canada, in addition to UNICEF Canada take the position that there are those contradictions between Part 4 of Bill C-10 and the Convention on the Rights of the Child.
As well, without disclosure of that document, there is no indication as to how the Department of Justice carried out its compliance assessment and no documentation as to what tools, framework or reference documents were used. I would submit that it would be important to refer to a number of guidance documents from the Committee on the Rights of the Child to interpret the relevant articles of the Convention on the Rights of the Child. You cannot just look at specific articles in the convention. One has to look, as an interpretive aid, at the 2003 concluding observations of the Committee on the Rights of the Child and the committee's General Comment No. 10 on children's rights in juvenile justice. Also, there are important observations and strong recommendations delivered by the Standing Senate Committee on Human Rights in 2007 in the report, Children: The Silenced Citizens.
I would also suggest as an action step to consider and give serious weight to evidence-based research and best-practice experience, including the Cross-Country Roundtable Report and the action steps and recommendations set out in the Standing Senate Committee on Human Rights' report, Children: The Silenced Citizens. This should be done before Part 4 of Bill C-10 is enacted.
I also, at the time a couple of years ago, was the children's advocate for the Province of Saskatchewan. I attended the cross-country consultation in Regina. The report that was generated from the cross-country consultations indicated that the problem was not with the legislation; the problem was with the system behind the legislation. It was interesting to note, as I have said in my speaking notes, that only 1 per cent of the respondents supported denunciation and deterrence as a sentencing principle. It is difficult to see how that has emerged as a principle to be incorporated into Part 4 of Bill C-10.
The fourth action step is to consider and give serious weight to the marginalized Aboriginal and other youth populations overrepresented in the youth criminal justice system and apply a stronger "equity focus. " Other colleagues will speak to that. I will not take up the committee's time in my opening remarks except to say that when I served as the Provincial Children's Advocate in Saskatchewan, I was struck by the overwhelming overrepresentation of Aboriginal youth in the child protection and youth criminal justice systems. While approximately 15 per cent of the youth population in that province was Aboriginal, approximately 80 per cent of the youth population in child welfare care and in the youth criminal justice system was Aboriginal. To create changes to the Youth Criminal Justice Act, which will lead to more pretrial detention and incarceration, will most certainly have a disproportionate, negative impact upon Aboriginal youth, who will be removed from their families, their communities and their culture. As identified in one of the reports by the Canadian Council of Child and Youth Advocates, there is a greater likelihood that Aboriginal youth will be involved in the criminal justice system than in their high school graduation. I think that the implications are quite serious for that population.
As a last action step, should there be a decision to enact Part 4 of Bill C-10, I would encourage this committee to make the necessary corrective amendments, or at least call upon the federal government to establish a public and transparent plan for tabling at reasonable periodic intervals a public report evaluating the impacts, direct and indirect, of the implementation of Part 4.
Given the controversy surrounding Part 4 of Bill C-10, it would be logical to consider the direct and indirect impacts resulting from the implementation of this legislation, given the serious repercussions to the young persons, their families and their communities, as well as to society as a whole. These reports should be tabled publicly so that we can all be well-informed and have further decisions made on the basis of current evidence-based research.
The Chair: Thank you, Mr. Bernstein.
Juliette Nicolet, Policy Director, Ontario Federation of Indian Friendship Centres: Thank you for inviting the OFIFC to present to the committee this afternoon. It is a pleasure to be here. In the interests of time, I will just get right into it.
The OFIFC's justice programming is at the core of our work. We have administered the Ontario Aboriginal Courtworker Program for 30 years. Since 1999, we have been administering the Community Justice Program, and for the past year and a half, we have been administering a Gladue program in the Gladue Court in London, Ontario.
The OFIFC is not comfortable with Bill C-10 in its current form. Overall, the legislation proposes a shift toward a more punitive justice system that will only serve to increase the already severe overrepresentation of Aboriginal people in custody, which includes an overwhelming number of Aboriginal youth.
It is important to consider the fact that not only are Aboriginal people overrepresented as offenders but also Aboriginal people are overrepresented as victims. As we consider public safety legislation, we must not forget that the majority of currently incarcerated offenders were at one time victims.
I will quickly summarize the OFIFC's main concerns.
Regarding mandatory minimum sentences, we are opposed to Bill C-10's limiting of the judiciary's discretion by mandating minimum sentences in more cases. It is especially important for judges to be able to use discretion when sentencing Aboriginal offenders so as to deliver the most fitting and just sentences.
Conditional sentences provide counsel and the judiciary with the necessary tools to adhere to section 718.2(e) of the Criminal Code and the principles set by the Supreme Court in Gladue when sentencing Aboriginal offenders. When conditional sentences are meaningfully crafted with options for non-custodial rehabilitation and requirements for restorative justice programming, the conditions can be much more strenuous and effective than those of custody. Furthermore, the interests of victims can be uniquely addressed through alternative approaches to incarcerations, as demonstrated in the Department of Justice's 2000 study of restorative justice programming.
Regarding amendments to the Criminal Records Act, the OFIFC is concerned about the bill's proposal to increase the ineligibility period for pardons or record suspensions. The increase in wait times for record suspensions will create a pool of former offenders stuck in limbo for longer.
Regarding amendments to the Youth Criminal Justice Act, the 2006 Census showed that 6 per cent of all youth in Canada aged 12 to 17 years self-identified as Aboriginal. By 2008-09, Aboriginal youth accounted for 27 per cent of youth admitted to remand, 36 per cent of youth admitted to sentence custody and 24 per cent of youth admitted to probation. We have equally troubling statistics about mental health and youth, and Bill C-10's proposed changes to the Youth Criminal Justice Act do not take any of these statistics into consideration.
The changes in legislation that provide a broader justification for pre-sentencing detention will also see a serious spike in the already overcrowded remand population. The same is true with the addition of the sentencing principles of deterrence and denunciation to the Youth Criminal Justice Act. These principles are inappropriate in dealing with youth, particularly Aboriginal youth, as they do not have the same moral or mental maturity as adults. Deterrence and denunciation are, as a result, simply not effective methods of communicating with youth.
Of particular concern to the OFIFC, Aboriginal youth who have low socio-economic status combined with high rates of mental health issues have a resulting heightened predisposition to be impulsive and take risks with the inability to connect actions to consequences.
A number of additional amendments to the Youth Criminal Justice Act are focused on tougher sanctions against youth instead of rehabilitative and restorative solutions. Our written submission highlights each of the amendments in more detail, but I would like to underline the following: the amendment concerning keeping a police record of extrajudicial measures; the amendment concerning custodial sentences specific to young persons — the OFIFC strongly disagrees with increasing the use of custodial sentences for young people; and the amendments concerning the publication of the names of young persons.
The best approach to Aboriginal youth criminal behaviour is preventive, and that prevention is best undertaken in a multi-faceted holistic manner by the community. Therefore, community resources such as friendship centres must be properly funded in order to continue offering an alternative to criminal behaviour for youth, whether that is in direct services, cultural programming or even just a drop-in centre for youth to stay off the streets and out of trouble.
To conclude, recognizing the historical issues that have created the current circumstances of Aboriginal people, it is imperative that the federal government's justice agenda be reprioritized to focus on preventive and restorative initiatives. Ultimately, it will be future generations of Aboriginal children and youth who inherit the detrimental burden of these laws. Investment must be made into community-driven, prevention-focused programming that will heal communities and promote approaches that foster well-being, engagement, healthy relationships and the ability to contribute to one's community to one's fullest potential.
On a last note, at the OFIFC, when we develop programming, we take into account generations before us, the current generation and future generations as well. We would urge this committee to do the same in considering this bill.
The Chair: Thank you very much, Ms. Nicolet. We will turn to questions from our senators. We always seem to be up against time, so if everyone could keep that in mind.
Your opening statements were very complete and comprehensive, more so than we would normally receive and somewhat beyond the five minutes, but that is fine. The message was important to get out, and I realize that you want to do that. However, colleagues, we must keep the clock in mind and keep your questions as concise as possible. Similarly, on the responses, please keep those concise as well.
Senator Fraser: Welcome to all of you. Thank you very much. This was important testimony for us to hear. I am going to keep my questions very short, and I will ask you to keep your answers short. If one sentence will do it, that is great.
Mr. Bernstein, the United Nations Convention on the Rights of the Child is mentioned in the preamble to this bill — whereas Canada is a party to, et cetera. I believe there is jurisprudence to the effect that that means that convention has been incorporated into Canadian law. Is that the case?
Mr. Bernstein: In terms of that particular statute, yes. In terms of legislation more broadly, the answer is no. For this particular piece of legislation, because it is incorporated in the preamble, yes.
Senator Fraser: Thank you. For anyone who cares to choose to answer on this, in connection with publication bans, the age dropping from 14 to 12 — I am not getting now into the nature of offences, just the age — can you describe the difference in the impact on a 12-year-old and on a 14-year-old of lifting a publication ban? Is there a difference that we should know about?
Ms. Turpel-Lafond: I would certainly be prepared to say that the lifting of the ban on an adolescent at any stage is a serious concern. There have been rulings from the court about the protection of the privacy of young people as part of a principle of fundamental justice in Canada based on the incorporation of the convention into the statute.
For a 12-year-old, absolutely. A 12-year-old may fall under the influence of an adult or a more sophisticated older adolescent, be encouraged to engage in some behaviour, then have their name published and have a lifelong impact. It is not just the impact on the child; the impact on the child's siblings, the child's family is extremely harmful to their development to have that kind of notoriety when the focus of the legislation is to be on rehabilitation and reintegration.
Senator Fraser: As the Privacy Commissioner reminded us in her testimony, in the age of the Internet, once something is public, it is there forever. Moving will not get rid of it. Nothing will get rid of it as long as you live, unless you change your name, I suppose. Mr. Bernstein?
Mr. Bernstein: Having spent most of my career as a lawyer in child protection, names were protected, identity was protected in those proceedings and there were concerns with children of that age around stigma, future educational opportunities and possible employment. Sometimes that would potentially lead a young person to be self-destructive, such as with some of the cyberbullying we have heard about. There have been teen suicides. It can lead to some serious repercussions.
Senator Fraser: Thank you very much.
Senator Runciman: I thank the witnesses as well. Off the top, is there anything in the youth criminal justice section of the bill that you like or support? Is there any element of it that you feel positive about? Silence? I guess that is that.
Ms. Turpel-Lafond: I am prepared to respond from my position to say that some of the amendments are valuable. There is no question that diminished moral blameworthiness is a significant and important addition. The council certainly appreciates that there was an issue after the Nunn inquiry, with young people possibly needing to be detained, and there is a need to address some issues here and there. The concern we have, though, is that, in addition to addressing what were narrow issues, the matter became a broader thing and went too far. There are areas where it is understandable and it was supported; the evidence was there to support it in terms of inquiry, public policy and analysis. However, the items that we have spoken to today are not similarly supported by evidence, analysis and careful thought, so we are worried about straying into other areas that may have a negative impact on some of the good trends that we have seen across Canada.
Senator Runciman: The pretrial detention component for which you indicated support, is that shared by all of you? You are familiar with the Nunn commission recommendations? I think this change has been driven by that.
The Chair: Mr. Bernstein, would you care to comment?
Mr. Bernstein: I do not think I have anything further to add.
The Chair: All right. Ms. Nicolet or Ms. Godin?
Ms. Godin: I join my colleague as a member of the council.
Senator Runciman: We have heard about the system working. I think several of you have said that you think it is working and that you are not looking for the changes that have been proposed, or most of them, in any event.
The Toronto Star did a data analysis last year of youth crime statistics. This is just dealing with Ontario, so I cannot apply it across the board. They found that almost 60 per cent of Ontario kids who commit serious crimes reoffend within two years. How do you match that up with the suggestion that the system is working today?
Ms. Turpel-Lafond: I am certainly prepared to weigh in on that point and answer that comment, if you like.
The Chair: Please proceed.
Ms. Turpel-Lafond: We have not based our submission on a media study or profile. I am not familiar with the Toronto Star article that you are referring to, but we do base it on the Canadian Centre for Justice Statistics. We do look at youth justice. Certainly in the brief we filed and in the brief from the B.C. representatives' office, we have filed well-known data that shows a declining youth crime rate in Canada. In some jurisdictions, B.C. and Quebec in particular, a dramatic decline is shown under the period of the YCJA.
With respect to the act, does the act adequately deal with serious offence? Does it have a way of dealing with it? Yes, there is no question that it does. However, you beg the bigger question, which is that there are some young people, adolescents, young adolescents, older adolescents, who require significant support. Some of them are in child welfare systems, as earlier witnesses have said. Although Aboriginal children came under the YCJA in British Columbia, in the year 2000, about 29 per cent of the kids in custody were Aboriginal; today it is 50 per cent. That same trend has not benefited some communities of children who have persistent challenges in their lives, like child welfare involvement. They are disadvantaged because, as Aboriginal children, they do not have a strong education system or adequate pro- social supports around them.
What causes some recidivism in young people is not the system. It is not the youth criminal justice system that causes recidivism. It is often the lack of support. The characteristics of the young people still in the system, despite our downward crime trend, is that they are children in need of support and children for whom more prison and detention may ironically lead them to transition into the adult system as opposed to being pro-social, involved members of the community.
Senator Runciman: Mr. Bernstein's brief to the house Justice and Human Rights Committee talked about reducing violent youth crime. You have talked about that as well; however, for violent youth crime, I have a different statistics than the one you are using. According to Statistics Canada — and this is a 2010 police-reported crime statistic — violent youth crime is actually up, over the last decade, by 5 per cent. These amendments will have no impact on the majority of young offenders, but they clearly have the potential to deal with violent young offenders who pose a risk to public safety. We have heard ample evidence, to this point anyway, that the act is not effective in dealing with this small core of young offenders. Clearly, all of you disagree.
Senator Cowan: I would follow up on the line of questioning that my friend Senator Runciman was pursuing. I am referring to the UNICEF brief. Ms. Godin, I know you have it; I do not know whether, Ms. Turpel-Lafond, you have it in front of you.
Ms. Turpel-Lafond: I do.
Senator Cowan: This is the section that dealt with the excerpts from the report of the Cross-Country Roundtable Report commissioned by the minister. It says that there was an overwhelming consensus that the perceived flaws are not in the legislation, the flaws are in the system, and that any changes should be evidence-based and made following the same thoughtful process that gave rise to the development of the YCJA in the first place.
To address the kinds of incidents that Senator Runciman was looking at, is it necessary, in your view, that the legislation be changed, or is the real deficiency the lack of support for the backup in the community and in other parts of justice system, for example, enforcement and identification of the underlying issues and dealing with those? Is that where the deficiency is, rather than in the legislation, as far as you are concerned?
Ms. Turpel-Lafond: First, I think we should be careful about the data we use. When you use the expression "violent offence " and "serious violent offence, " I assume we are dealing with the bill, because when we are talking about crime statistics, this is forthcoming, not in existence. For example, there is common assault. A young person with FASD, who is living in foster care and who runs away and pushes a police officer has committed a common assault. Is that a serious violent offence? I think we need to be careful.
Are we talking about murder and homicides? If I talk about British Columbia as an example, some years we have no youth homicides. Then, in a year, we may have two. There has been a 200 per cent increase year over year; the next year we have none. In terms of how many serious violent offences we have that lead to fatalities in a year in a province or in a territory, we need to look at that carefully. We can see a significant downward trend in that data. However, it does not mean that it does not happen, or that we do not have to protect the public and incarcerate young people at times and provide appropriate supports. We are dealing with what is called violent offences, meaning common assaults, because they are labelled violent in this bill. This is another matter altogether. We need to be extremely cautious about how we treat and label young people because there are circumstances.
You are right; the legislation is not the answer to all of the issues. There are some defects that it has attempted to address. It has cast too broad of a net potentially on the outcomes for some of the most vulnerable citizens — that is, those who really have not had the benefit of strong social systems of support. There are inadequate mental health systems for young people. We know the Canadian Mental Health Commission is looking at child and youth mental health. As a result of poor mental health systems, many of these traumatized young people across this country find themselves in prison as a result and can repeatedly come in and out. There are poor addiction services, with often significant family breakdown and children bouncing around in foster placements — things that average families often do not face in Canada.
We have to consider how this bill will impact those most disadvantaged children. What we are saying to you from the Canadian Council of Child and Youth Advocates is that it may be an unintended consequence of your agenda to introduce this bill and have it passed, but it will cast too broad of a net and be disproportionately harmful on the children who most need our support and do not need the tools in this bill.
[Translation]
Senator Dagenais: My question is for Ms. Godin and Ms. Turpel-Lafond. As you know, the bill is aimed at young people who have committed violent crimes and serious crimes.
Having worked for a police department for 39 years, I can tell you that many of those young people were aware of what they had done at the time of their arrest; I could even add that they were known to the police community, even though that was not publicized. The bill partly concerns repeat offenders, who will commit adult crimes. I heard you mention the trauma caused to these young adults, but I would like to hear what you have to say about the trauma caused to the victims of young adults.
Ms. Godin: The concern that the bill addresses is not just the accused but also victims. Currently, there is a concern. The problem is also that people have reacted to specific cases. Everyone is very sensitive to specific situations in which there are victims, and, through your efforts in the field, you have obviously appreciated the situations in which the situation failed, but the tools are there, and the system is good. There has indeed been an intensification, but we have nevertheless had good results in Quebec.
I would say that, under the current principles, the victims can be considered. And that is why the approach in Quebec is the best option, at the right time, with each of the offenders. This has made it possible to take the situation of the victims into consideration.
[English]
Senator Jaffer: Unfortunately, we have so little time and I have so many questions. You earlier said that the Standing Senate Committee on Human Rights had done an extensive study on the Convention on the Rights of the Child. I also have the same concerns that you have about the assessment and, further to what you said, Mr. Bernstein, I pursued this matter and it is a cabinet document, so we will not see the child assessment and therefore we do not know what the assessment says.
All my colleagues have your brief, so I will not touch on the things you said in the brief. This month we were in Geneva working on a report card on how we are doing on the Convention on the Rights of the Child. I would like Mr. Bernstein to tell this committee how Canada is faring.
Mr. Bernstein: I believe there was a presentation of alternative reports to the Committee on the Rights of the Child, and those alternative reports are public. We are still some distance away from meeting the milestones in implementing the Convention on the Rights of the Child. It will be interesting to hear what the Committee on the Rights of the Child has to say when issuing its concluding observations in a whole host of areas, be it youth criminal justice, migrant children, or a national children's commissioner, which in fact is one of the recommendations by UNICEF Canada. I do note that recommendation was reaffirmed not only by the Standing Senate Committee on Human Rights in its report Children: The Silenced Citizens, but also in a recent report by that committee dealing with sexual exploitation.
We sometimes hear inconsistencies and a lack of coordination between the federal government and the provinces. We see inconsistent approaches, and sometimes there are questions about funding some of the resources and some of the facilities. Again, I would encourage this committee to consider the importance of establishing a national children's commissioner, which I think would go a long way in ensuring that there is stronger implementation of the convention. There was a report a couple of years ago called Not There Yet Canada's implementation of the general measures of the Convention on the Rights of the Child, which talked about the fact that Canada has made some gains but is still some distance away from meeting those goals.
Senator Jaffer: More specifically on this bill, this bill talks about deterrence and denunciation. The Convention on the Rights of the Child talked more about reintegration and rehabilitation.
Mr. Bernstein: Certainly on diversion and rehabilitation there were strong comments by the Committee on the Rights of the Child regarding trying to use alternative approaches to avoid incarceration. A number of those points are referenced in our written submission.
In terms of General Comment No. 10, the concluding observations from 2003, this certainly takes Canada in a direction that is inconsistent. There were strong recommendations that reflected some criticism of Canada regarding incarcerating, probably having a higher incarceration rate than most other industrialized countries in the world. Therefore this takes us in exactly the opposite direction.
Senator Angus: I want to make sure I understand this business about consistency with the UN Convention on the Rights of the Child.
Mr. Bernstein, you have urged us to pursue the matter, even though you are aware and state in your brief that the Minister of Justice, and one of the senior counsel for the Justice Department who testified here on February 1, confirmed that an assessment had been carried out in relation to Bill C-10 to determine its consistency with the UN Convention on the Rights of the Child. You acknowledge that they testified to that. Are you suggesting that they were trying to mislead us in some way?
Mr. Bernstein: Not at all. I do not question the good faith or the expertise or the professionalism of those people who have testified previously.
I am suggesting that there seems to be a difference of opinion here and there would be some value in the committee drawing its own conclusions. We do not know, for example, whether this was simply a checklist approach in terms of going through this, based upon certain criteria, whether it was looking at specific articles in the convention or whether there was also a full consideration of the concluding observations to Canada, General Comment No. 10 and the Senate committee's recommendations in 2007.
There are processes that relate to applying a child rights impact assessment, which is a literature review, consulting with individuals who may be impacted and consulting with young people. There are ways in which this can be done in a richer way that is more comprehensive.
The fact that we seem to have different groups with expertise disagreeing on this leads to the suggestion that it would be helpful if the committee perhaps could hear about the methodology that was used and how these conclusions were arrived at, and measure that against the submissions made by other groups and organizations that are taking the position that there is noncompliance with the Convention on the Rights of the Child. By implementing the bill in its present form, Canada would not be honouring its international obligations from ratifying the convention in 1991.
Senator Angus: I have reread the very interesting brief you have given us, and at the top of page 3 you have listed six or seven areas of possible inconsistencies.
As an expert in this area, are you telling us that in your opinion the bill does not conform, that it is inconsistent with, and that the Government of Canada would be in breach if it enacts this?
Mr. Bernstein: That would be my view.
Senator Angus: That is your view.
[Translation]
Ms. Godin: Absolutely. Moreover, the UN Committee on the Rights of the Child asked the question, and I took note of it, whether Bill C-10 is consistent with Canada's obligations under the Convention on the Rights of the Child. Unfortunately, that has not been proven. This is where we are straying from those fundamental principles of criminal justice that have governed Canada for more than 50 years, and, unfortunately, to address specific problems, we have gone against our international commitments. And that is extremely distressing. Beyond passionate debate, we have to be rational and very much aware of those commitments.
We were one of the first countries to sign the Convention on the Rights of the Child. That is a major source of satisfaction for us. We have obligations. Canada will be heard in the fall, and the report that was submitted refers to the Canadian statistic, which has fallen since the current act came into force. So this shows that the system is deficient in certain respects, but it does not deserve to be overturned, as we are currently doing with these amendments.
Senator Angus: You know that those statements against the government are quite serious?
Ms. Godin: Yes. Obviously I am here under the aegis of the Canadian Council of Child and Youth Advocates, but the Commission des droits de la personne, which I represent, has also filed a brief which I submitted to you earlier. I am somewhat uncomfortable submitting it because I am here in my other capacity. I invite you to read all the references concerning the UN Committee on the Rights of the Child and the Supreme Court.
Senator Angus: We will see. Thank you.
[English]
The Chair: Senators, we have 10 minutes remaining in our scheduled time with this panel, and we have Senator Chaput, Senator Boisvenu and Senator Lang.
[Translation]
Senator Chaput: I will ask my briefest question, which concerns a topic that Ms. Turpel-Lafond addressed earlier. I am going to quote what you said.
[English]
You referred to the "best outcomes regarding children, " and you said there are two provinces in Canada.
[Translation]
You were talking about Quebec and British Columbia. Can you give us some examples of what you mean?
[English]
What are the best outcomes regarding children?
Ms. Turpel-Lafond: With respect to the two provinces I cited, since the Youth Criminal Justice Act has come into play, Quebec has the lowest youth crime rate, and British Columbia has the second lowest crime rate. Both provinces have also invested extensively in alternatives to formal charges and alternatives, treating jail as a last resort. There has been significant community investment in diversion, in reconciliation processes with victims and holding young people to account, but addressing the presenting problems that often bring them into conflict with the justice system.
There have been significant successes in Canada. I point out — we were talking about the UN convention — Canada's report on 10 years of its conduct in implementing the convention actually pointed to the YCJA as a major success for Canada in terms of promoting a pro-social, appropriate, developmentally youth-focused system. Those two provinces have extremely good outcomes around pro-social behaviour by young people, meaning 12 to 18 years old. It is not perfect; there is still crime, but a significant decline.
Other provinces and territories have not been as significant. I just point to those two because we need to look at what happens in provinces and places where the trend has been successful. We see it as an investment in positive, pro- social development, positive investment in child care, strong education supports and good foster care systems. Those are the types of supports that make a big difference.
[Translation]
Senator Chaput: Do you have a comment, Ms. Godin?
Ms. Godin: Indeed, the two provinces that have had convincing results using the model and approach to date are Quebec and British Columbia. We have made a considerable investment in rehabilitation and reintegration, always in a manner consistent with public protection. We are not opposing what the bill will attempt to do. Obviously, public protection stems from this approach, which we have advocated since the act came into force, an act that has produced results.
Senator Chaput: Thank you very much.
Senator Boisvenu: Good afternoon, ladies and gentlemen. First, I do not want to contradict your statistics, but I would like you to read Statistics Canada's CANSIM report, which shows that British Columbia has experienced a 38 per cent decline in crime among young people since 2000. In Quebec, there has been a 12 per cent increase. I would like you to take a look at those statistics, which somewhat contradict your figures. And note that they do not come from me, but rather from Statistics Canada.
This morning, we heard from Marc Bellemare, and we definitely realized that we can see some major virtues in Bill C- 10, depending on the seat we occupy. A defence lawyer very much appreciates its virtues because he sees it as a kind of major rectification of the correctional system.
I understand that you are on the children's side — note that Bill C-10 concerns adolescents more than children — and you seem to reject all the elements of Bill C-10.
Consider the following scenario: you are a mother, and your eight-year-old daughter is raped by a 40-year-old man. Under the current act, he is sentenced to 45 days, but, under the amendments of Bill C-10, he would be sentenced to a minimum term of one year. Can anyone be opposed to that?
Ms. Godin: Senator Boisvenu, we should not personalize the debate based on a single case; we must consider the majority of cases. It is too easy to fall into an emotional debate.
Sébastien's mother testified this morning on her specific case, but we must examine the results as a whole, and that is what is somewhat reproachable. The statistics I referred to — because I am aware of your great interest in statistics — are the ones Canada presented in its report to the UN rights committee; those statistics show that there has been a drop since the act came into force.
I am a mother, but I will not answer that question. I am looking at the implementation, the system. I explained it poorly earlier when I was speaking to another senator, but we are able to respond to specific situations under the current system, even in the case you refer to, whereas, under Bill C-10, what is wrong is that we will be stigmatizing and taking stronger measures to respond to specific situations. We are straying from the fundamental principles of criminal justice that Canada adopted 50 years ago. That is the very sad aspect of this bill.
Senator Boisvenu: Then someone should explain to me why France, England, the Netherlands and Switzerland have lowered the legal age for recognizing greater criminal liability in the past 10 years. I am thinking of France, where it has been lowered to 16, the Netherlands, where I believe it is 12, and Switzerland, where it is 10. So there is a movement in which an attempt is being made to differentiate a child from a young adult so that the young adult can assume a minimum level of accountability when he commits a serious crime.
Ms. Godin: We should have had some statistics throughout this entire debate. That is somewhat what my colleague was referring to earlier in the context of the consultation that the minister conducted. We have not seen any convincing results. We can cite statistics from Switzerland and France around this table, but today we are telling you that there are provinces where this works. We have statistical results. It is unfortunately not perfect in Saskatchewan, for example, but the system has shown that Quebec had positive results. We are overturning an entire approach and principles of fundamental justice that are also dictated by the UN rights committee. That should not be overlooked, Senator Boisvenu. This is not a fantasy of Quebec's or the provinces; it is the UN rights committee, which dictates the principles of fundamental rights, and we have signed that convention. For us, that authority in a way ultimately dictates our behaviour today.
[English]
The Chair: I want to be clear. You are saying — and I guess this is different of course than what Senator Boisvenu is saying — and we will use Quebec, your home province. You are suggesting, from your statistics in Quebec, that it does not show that there has been an increase in serious violent crime among youth? Is that what you are saying? Our understanding is that is what Bill C-10 is addressing: serious, violent, repeat crime by youth. In Quebec, are you saying there has not been an increase in those crimes?
Ms. Godin: I did not want to get into a debate, because I know Senator Boisvenu has had the debate with Mr. Fournier about statistics in Quebec.
I am referring to the statistics of Canada, not provincially, that were reported by the Government of Canada that has shown that there is a decline in Canada. I have treated the statistic as a whole.
The Chair: That confirms it in terms of serious violent crime as opposed to crime generally?
Ms. Godin: Absolutely.
The Chair: That is fine. I am not debating with you. I just want to make sure we understand what you are relying on because we will review that carefully.
Ms. Turpel-Lafond: Excuse me, Mr. Chair. It is hard to jump in, but I wanted to clarify one point from the council. I appreciate Ms. Godin is addressing it, but I must come back to a very specific issue, which is that since 1998 the decline in the youth crime rate in Canada has been very, very steep. There was a small bump in 2001-02 where it was flat, but it has been a fairly steep decline.
Some of the questions keep coming back to the point that these amendments deal with serious violent offences. There is a definition of serious violent offence, but not every one of these amendments in this part of the bill deals with that. There are other issues being addressed as well, and I would like to clarify from the council's perspective that we appreciate that there are some issues around detention. There are some definitions that may be required, as Mr. Nunn proposed, that are important and valuable. We are saying that some of the other provisions cast far too broad a net. The publication in proposed section 75 is not just for serious violent offences; it is a very broad door. We need to be careful about comparing apples and oranges and what is the evidence in what category.
Also, when you see an uptick in serious violent offences, are you looking at it in a trend of 10 years, 5 years, 4 years, 1 year, 6 months? Good criminological data looks at longer-term trends. The longer-term trends are very promising and positive, which does not means there cannot be improvements in the law constantly but that they must reflect the evidence, and the evidence, in our respectful view, does not support some of these broader initiatives reflected in Part 4.
The Chair: Thank you very much for those comments, Ms. Turpel-Lafond.
Senator Lang: I would like to make an observation, if I could. We heard evidence earlier today from a number of representatives from police forces who made it very clear that they felt that the amendments pertaining to this section of the act were going to be very advantageous for them to do their job while at the same time protect the public, but just as importantly emphasized during those discussions is that the thrust of the bill all of you have referred to will remain intact for those 99 per cent of the clientele that we are speaking of for the purposes of rehabilitation. Yet, at the same time, without these amendments, they are not in a situation to deal with those few young offenders who would flaunt the law and create these violent crimes and be able to deal with them in an expeditious manner.
I find it difficult to understand why you would object, with those situations, to our bringing forward legislation of this kind. One might argue the nuances or the details of it, but in principle this should be part of any act that we have. The fact is there are some individuals out there, some young people, who have really gone astray. We have a responsibility to protect the public. I want to make this observation, and perhaps you could refer to this. In all the discussion here in the past 45 minutes to an hour, we have not talked about the public safety at all and the responsibility that we have. Could you comment on that?
Ms. Turpel-Lafond: I would be happy to address the issues of public safety. Our council's concern is that children are victims. Children can be involved in anti-social behaviour. Often they can get other associates. We want to see a strong set of well-developed supports for young people in Canada that are appropriate, but also that we have safe communities. Do not get me wrong that we do not believe that. We do.
We also are not saying that every provision in Part 4 is unnecessary. I fully agree and our council fully agrees that clause 169 amending subsection 29(2) on pretrial detention was a required amendment, and I appreciate that the police officers have identified that. Many people have identified it. I myself sat as a youth court judge for nine years and know very well that there are cases where we would need to detain people on a spree and you cannot stop it. Sometimes have you to intervene; it is important. That is one thing.
It is another thing to have a broad-ranging agenda that brings in other principles that are not tested, that are not supported by the evidence and will require a very onerous burden, possibly harmful, like section 75, where the court shall, not may, shall, in every violent offence, which includes a common assault, determine whether the publication should be lifted. That will be a very significant thing, and there will be cases where the names of the children are revealed to great harmful effect to them and their siblings and their families. It is far too broad of a net. That is not what the police officers called forward to say. There already is an opportunity to release the names to people who are victims or concerned people or those who commit serious adult offences.
Some provisions are very beneficial. There is no question there is a public safety dimension, and it had to close that. Others do not have the basis in fact or evidence to achieve that, and they seem to be motivated by some other factors that are not supported by good child development, by the law or by the evidence.
The Chair: Honourable senators, at this point regretfully we have to end this session. We are running over time. We have another panel awaiting us. This has been very helpful, and as I said to the previous panel, it is very interesting to hear all sides of the issue. You certainly have brought up points very forcefully that differ from others we have heard, but that is why we go through this, why we have to find at the end of it what is the best we can make of it. You have been extremely helpful to us and we are most appreciative.
We are very pleased to have with us now Rachel Grondin, Professor, Civil Law at the University of Ottawa. She was to be joined by another panellist who unfortunately has not been able to make it.
Ms. Grondin, we look to hearing what have you to say.
[Translation]
Rachel Grondin, Professor, Civil Law, University of Ottawa, as an individual: Honourable senators, thank you for inviting me to appear before you concerning Part 4 of Bill C-10. I know you have a lot of work to do on this bill.
I would have liked to make some positive comments on this part of the bill, but the proposed amendments to the Youth Criminal Justice Act would make some fundamental changes and, in particular, three fundamental changes that I believe are negative.
First, a number of them run counter to the existence of a separate criminal justice system for young people. Some would have a negative effect on the long-term protection of Canadian society, while others are inconsistent with Canada's commitments under the Convention on the Rights of the Child.
As regards the proposals that run counter to the existence of a separate youth justice system, I am relying on a 2008 decision by the Supreme Court of Canada in affirming that aspect of the law. In 1968, the Supreme Court held that it is a principle of fundamental justice, and therefore protected by section 7 of our Canadian Charter of Rights and Freedoms, that there is diminished moral culpability for young persons in Canada. This is a principle that has long been recognized, but now it is entrenched in the Constitution.
The new act would move away from the diminished moral culpability of the young person and emphasize the crime. It would therefore disregard the person and focus on the crime.
Lastly, the new legislation retains the rule of general application for an order that young persons are liable to adult sentences. For example, the Attorney General is asked — and even required — to inform the court of the reason why he does not want a young person to be liable to an adult sentence.
I believe that liability to an adult sentence is exceptional and should remain exceptional. It is the general aspect of the situation that I criticize. Adult sentences are necessary for certain persons, for certain young people, but they are ultimately an exception, and the exception must not become the rule.
I applaud the proposal made in Part 4 of Bill C-10 that children should be separated from adult detainees, but should an adult sentence be applicable from the moment a certain crime is committed? That is what troubles me. The age of the individual is an essential sentencing criterion in a system that acknowledges diminished moral culpability of young persons.
Young persons cannot be compared to adults. We know that they have not finished developing, and that is why different and distinct rules are necessary.
As a second point, I would also like to say that some of the amendments would have a negative impact on the long- term protection of society. For example, the new section 3, proposed in clause 168 of the bill, is part of the act's declaration of principle. It is a section that must apply to the entire act.
I do not understand why the government wishes to amend it. It is clear. It is clearly stated that we want to protect society, that we want to rehabilitate and reintegrate persons in order to protect society. I believe this statement is clear. I see no point in changing it. Rehabilitation and reintegration must remain at the forefront.
Now I would like to say a few words about deterrence. My colleague would have done a much better job than I of telling you about that because that is his area of expertise. In my opinion, it has been proven by a number of studies that deterrence does not work with young people.
You cannot protect society with something that does not work. The legislation brings in deterrence and denunciation, whereas we have studies that clearly show this does not work with young people. The idea is to bring the youth justice system closer to the adult system, and these are two different systems that must remain distinct. The desired protection of society must be for the long term. It is the long-term protection of society that we want. I do not understand why the expression "long-term " is being deleted.
Third, I believe that some of the proposals run counter to the commitments Canada made in ratifying the International Convention on the Rights of the Child. The act applies to persons who are 12 to 18 years of age. However, under the convention, those persons are still children. A person is considered to be a child until the age of 18. Whether the child is a repeat offender or not, he or she is a child. In ratifying that convention, Canada undertook to take into account the age of a child charged with a criminal offence, not a crime, and also the need to facilitate that child's reintegration into society and to make the child play a constructive role in society, not to deter or denounce him or her. That does not work, and that is recognized in the convention. No one is talking about that.
In 2007, the Senate unanimously adopted the recommendation of the Standing Senate Committee on Human Rights that we comply with the obligations under the convention. The government also agreed at the time to ensure that its bills would comply with the convention.
By allowing adult sentences, the government is imposing adult sentences on children, whereas the convention states the contrary. It provides that there must be a separate system in which reintegration and rehabilitation are important. Consequently, an adult sentence should apply only in exceptional situations in which an offender is involved.
Furthermore, article 37(b) of the convention provides that detention shall be used only as a measure of last resort. However, by permitting adult sentences, we will be allowing minimum terms of detention to apply automatically to young people because we know that minimum sentences are provided for under the Criminal Code and other acts. Is it a measure of last resort when we automatically apply a minimum sentence to young people?
As a parent, citizen and professor in the field, I encourage you to ensure the long-term protection of Canadian society by rejecting the amendments proposed under Part 4 of Bill C-10, which history will no doubt view as a regression in the youth criminal justice system in Canada.
[English]
The Chair: Thank you, Ms. Grondin. We will now proceed to questions from senators, beginning with our deputy chair, Senator Fraser.
[Translation]
Senator Fraser: Welcome to the committee, Professor Grondin. Thank you very much for your presentation. I understand you had expected another witness to keep you company, but you did very well all alone.
With your permission, I am going to ask you a question about long-term protection or the lack thereof. You are not the first person, starting with Quebec's Minister of Justice, to say that the principle of long-term protection must be safeguarded. We would like to ensure that these young persons become productive members of society once they are adults.
Furthermore, some people say that it is all well and good to think about children's future, but, in the meantime, we have to protect society in general now. I understand them. There are cases in which young people are threatening the security of their community right now. Not a lot of young people, but some. I am thinking, for example, of the gangs that can make life miserable in a neighbourhood where they are active.
Can we not combine the two concepts and state clearly in a bill that we have two goals: the current, immediate and the long-term protection of society? Is there any legal reason that might preclude that?
Ms. Grondin: Not at all. It is the expression "long-term " that I do not want removed. It is a qualifier that clarifies, and we know that clarification is very important, particularly in criminal law. It also ensures that we do not forget we are also seeking the long-term protection of society. The purpose of short-term protection, when we try to rehabilitate and reintegrate, is to protect society. By choosing the easy solution, which is to put young people in prison, we ensure momentary protection, but those individuals could still be dangerous once they are released, whether that is in the short or long term.
We must emphasize rehabilitation; that is what we must do. And that is how we will guarantee protection in the short and long terms. I believe this is a qualifier that should not be removed.
Senator Fraser: I would like to ask you a second question, this time on the publication of young offenders' names. Do you have any examples that might give us some idea of the impact that the publication of names will have, particularly on very young persons of 12 or 13?
Ms. Grondin: Publication of their names may have an impact on much of their lives and development in becoming positive members of society. For example, if their identity is disclosed, that may have an effect on how they continue their education. We know that bullying takes places at school and that it can even lead to suicide. Is that what we are seeking? In addition, most of the time, young people who are bullied will often decide to withdraw. They withdraw for some time, and some drop out of school. I saw once again in the newspaper yesterday that there was a Quebec youth who withdrew in British Columbia. It was bullying that led to that.
I believe that lifting the publication ban could trigger these kinds of situations. Are we going to head in two separate directions? We have a bill to protect young people from bullying, and we would be introducing a measure that would promote bullying?
Senator Fraser: I understand. Thank you very much.
[English]
Senator Runciman: Thank you, witness, for your testimony. I did not hear this, but you may have referenced it and I missed it. I would like to know your view with respect to protecting the public and innocent victims. What role should that play in the justice system?
[Translation]
Ms. Grondin: The best way to protect society — and it must be protected; that is the purpose of criminal law — is through rehabilitation and reintegration; it is not to lock someone up so that he is more violent when he is released a few years later. That is why I do not think this bill should relegate rehabilitation any lower in the act. It must remain at the forefront in section 3, which is the fundamental section of this act.
It is a section stating a declaration of principle. Judges will use it to interpret all the provisions of the act. I therefore believe it is important for that section to be precise about the protection of society. That is an objective that is pursued in criminal law, and we should not deviate from it.
[English]
Senator Runciman: I do not think anyone disagrees with the position with respect to rehabilitation. I think, as Senator Lang emphasized with the previous witnesses, these provisions will have no impact on minor cases; they are targeted at serious and violent offenders. In the Toronto study — again, Toronto, not Quebec — young people who commit robberies or serious violent sexual assaults are getting out on probation. They are breaching court orders and reoffending. The YCJA currently is not providing the tools to deal with the most serious offenders.
I will give you a specific example. Last fall in Toronto, a 17-year-old sex offender with a previous record rapes a girl in a washroom stall, then violates a court order and shows no remorse. In fact, a pre-sentence assessment says he believes he is only 60 to 70 per cent responsible because the girl did not resist strongly enough. He gets probation, which is the same sentence he received for his previous conviction.
Where is the justice in that? Why would a victim even report if she knew there would be no sanctions? What message does the approach that you are apparently supporting send to the victims of crime?
[Translation]
Ms. Grondin: Rehabilitation does not mean there are no sanctions. A sentence is imposed on the individual. He is not released. It is not just prison or a number of years in prison that will make it possible to say that this is a good thing that will satisfy the victim. What will be better for the victim is for her attacker not to come back and rape her again in three years. He will be rehabilitated. Until a young person is 18, it is not a failure; you have to continue. If it did not work the first time, we will continue a second time, until he is 18.
[English]
Senator Runciman: I just cannot understand that rationale, and I suspect most Canadians cannot either. Thank you.
The Chair: Ms. Grondin, I have a supplemental question. I realize this comes from the Criminal Code and not from the Youth Criminal Justice Act, but there must be circumstances when it is necessary to separate an offender from society for a period of time in order to protect society. That is recognized in the sentencing principles and in the Criminal Code. Do you not believe that that separation in the most grievous of circumstances is necessary to separate an offender to protect the public?
[Translation]
Ms. Grondin: Not at all. I am speaking generally. I even emphasized that this should remain an exceptional measure. Yes, it is necessary in certain cases; yes, it is the only solution; yes, it is a last resort. Even the convention allows it. We ratified it, but this is a measure of last resort. We have to try everything before that.
Now, if it does not work, in that case, perhaps the individual should ultimately be imprisoned, but you have to try everything before that. We cannot feel satisfied if we have not tried everything.
[English]
The Chair: Even in the case of violent, repeat offenders, would you still have the same view?
[Translation]
Ms. Grondin: Yes, because if these people are violent, it is because they need help. They have a problem. These people need to be rehabilitated. In many instances, they did not acquire a good value system at home. We have to work even harder with them. It is not people who rob a convenience store or do minor things that require the most time, the most rehabilitation. It is those who commit more violent crimes. Perhaps society should consider that imprisonment is not the only solution, but rather the last resort.
Senator Fraser: The case that Senator Runciman cited involved a very violent crime, rape. The individual believed he was not liable because the girl had not resisted strongly enough. That is a striking circumstance. Does the current act not permit a combination of detention and treatment in these kinds of cases? It seems to me that youth should be supervised very strictly, at least in the short term, no?
Ms. Grondin: Definitely, and section 42 of the Youth Criminal Justice Act provides for a range of sentences and permits a combination of those sentences. There may also be psychological supervision for these individuals, together with detention. I believe that must remain as it is. That is not what I am talking about.
I am talking about section 3 and about removing rehabilitation from its prominent position and making it a lower priority. It is the thing to do to guarantee the protection of society. These measures go together, not one against the other.
[English]
Senator Jaffer: I want to take you back to Article 40 of the Convention on the Rights of the Child, which talks about treatment of young persons in conflict with the law. This is a convention that Canada has signed and, in fact, was in the forefront of signing, and I think we have also signed the protocol on this. One of the things it says is that there should be a variety of dispositions, and other "alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. " You have been saying today that there should be reintegration and rehabilitation. The focus of this bill is deterrence and denunciation, and that is where you have the problem. Is that not correct?
[Translation]
Ms. Grondin: That is exactly correct. That is the problem and that is where I believe this is inconsistent with the convention and the studies that have previously been done and with the states that have experienced it, those states where crime has not declined. The places where crime has fallen are those that have emphasized rehabilitation and reintegration. Why add something that does not work?
[English]
Senator Jaffer: I had asked our government whether they had done an assessment with the Convention on the Rights of the Child, and the minister and the officials both said an assessment has been done. Obviously, we have not seen it. If an assessment was done — I do not doubt them at all that it was done — why has this been missed? You cannot answer because you were not there, but you would have an issue if the assessment were done with Article 40 not being in place. Is that correct?
[Translation]
Ms. Grondin: I also believe that they may have done it, but I wonder what has happened. Perhaps it has been forgotten. They definitely did not see that the convention does not refer to deterrence and denunciation. Those are terms that are used for adults. Deterrence and denunciation are in the Criminal Code. A decision was made not to consider them in connection with young people because that approach does not work with young people. Young people do not think that far ahead.
Senator Boisvenu: I am satisfied because I understand from your comments that Bill C-10 aims at the right target when we are talking in particular about young offenders who have virtually no possibility of being rehabilitated, who have committed very serious crimes and are thus exceptions. And you are telling me that, under the international code that is, not authorized, but let us say allowed.
Earlier I told the people who preceded you that we are seeing a change of direction in the treatment of young people 16, 17 or 18 years old in many very modern countries, even socially left-wing countries — I am thinking of Sweden. A distinction is being drawn between a 12-year-old child and a young person who is 17 and, let us say, 300 days old. I had some data that had been added. Switzerland and England have changed the age of criminal liability to 10 years, Greece and Sweden to 14 years, whereas Sweden is recognized as a relatively tolerant country, the Netherlands to 12 years and France from 10 to 16 years. As a result of the influence of street gangs, drug trafficking and prostitution, they are making these young people more responsible for crimes committed.
Bill C-10 remains an important instrument for judges with regard to rehabilitation. I have always said that rehabilitation must come after the protection of society. Section 2 or 3 of the Canadian Charter of Rights and Freedoms concerns the right to security of the person, and we make every possible effort to protect society.
Under Bill C-10, when dealing with a criminal, whether young or not so young, if there is some possibility of rehabilitation, the judge has the option of ordering, for example, a substance abuse treatment program.
That is proof that judges are allowed considerable discretion under this bill, which favours rehabilitation over incarceration.
Ms. Grondin: I have to disagree with you about the protection of society and then rehabilitation. Those two concepts do not stand in opposition. They go together.
Senator Boisvenu: I agree with you. I did not say the contrary.
Ms. Grondin: Rehabilitation is done for protection purposes. It is one way of protecting society, and I would say that it is the best way of doing that with young people. It is a long-term effort; do not be mistaken: it takes time; the programs are difficult. However, it is the best solution we have found to date.
Criminal law has been around since Canada has been in existence. There have always been criminals; we must not give up. We have to continue protecting society; that is certain. However, how do we do that? I believe we have to emphasize rehabilitation. Detention is a last resort.
Senator Boisvenu: You are claiming that Bill C-10 pits rehabilitation against detention?
Ms. Grondin: Why has the drafting been changed to this degree? Why was the previous wording, which put all that together, not left alone?
Senator Boisvenu: That is not my question. We said that we would put the protection of the population before rehabilitation, but we did not pit one against the other.
Ms. Grondin: No, but Parliament does not speak in vain. In section 3, as it currently stands, both are there: protection of society and rehabilitation. Everything is there in paragraph (a) of section 3. Why was the decision made to rewrite that and put it a little further down?
Senator Boisvenu: That will have to be explained further.
Ms. Grondin: Why? Because you have to be precise and clear for the judges. All that means something. I have spoken to people who deal with the interpretation of statutes, and they always tell me: if it comes afterward, it is less important.
Senator Boisvenu: That is why we have minimum sentences.
Ms. Grondin: Minimum sentences are for adults.
Senator Boisvenu: That is a comment.
Ms. Grondin: Adults and adolescents must not be lumped in together.
Senator Boisvenu: All right.
Ms. Grondin: Adolescents are children. They are still developing. That should not be forgotten. These people do not see the consequences of their actions. Every effort must be made to protect society. Perhaps there are not enough programs to emphasize rehabilitation, but that must not be changed.
I do not believe that the protection of society and rehabilitation are opposed to one another.
Senator Boisvenu: I agree with you, madam.
[English]
The Chair: Senator Boisvenu, are we concluded on that point?
Senator Boisvenu: Yes.
The Chair: Next we have Senator Cowan, and we have three other senators remaining. As I mentioned earlier, we are running over for our final panel, so we will have to end this at 4:30. Please keep that in mind.
Senator Cowan: Welcome. Were you involved in the round table that the minister convened between May and August of 2008?
Ms. Grondin: No.
Senator Cowan: Have you read the round table report?
Ms. Grondin: Yes.
Senator Cowan: A conclusion there was there was an overwhelming consensus that the perceived flaws in the Youth Criminal Justice Act are not in the legislation; the flaws are in the system, and any changes should be evidence-based and made following the same thoughtful process that gave rise to the development of the Youth Criminal Justice Act in the first place. It goes on to say that less than 1 per cent of participants — these were experts who were involved in this consultation — supported the concept of deterrence for sentencing.
Do you agree with that? Would that be consistent with your own experience and knowledge?
[Translation]
Ms. Grondin: Yes, to the extent I can give an opinion; I believe that Mr. Corrado was in a far better position than I to offer an opinion on deterrence. From what I have read on the topic of deterrence, it really is not the solution for adolescents.
Senator Cowan: Thank you.
Senator Dagenais: Thank you, Ms. Grondin. Society has obviously changed considerably. Adolescents who committed crimes yesterday are now young adults.
The bill refers to violent and serious crimes in connection with incarceration. Do you not believe that, since it is more punitive, the bill will tend to deter repeat offenders?
Ms. Grondin: Deterrence, in my view, does not work with young people, regardless of the nature of the crimes. Young people who have committed crimes, who are somewhat less developed, will reach adulthood at some point and will have to be rehabilitated. Ultimately, deterrence does not work with young people.
Senator Dagenais: You are convinced of that?
Ms. Grondin: I am convinced of that. I have spoken with people who have conducted studies on the subject and deterrence is not really the solution.
Now it is definitely a quick solution. It is satisfying; people wash their hands of the matter. We say to ourselves that we have done everything, we have put the people in prison, and now everyone is happy. No, it is too easy a solution for me. It is not a work and effort solution.
Senator Dagenais: You know that work can be done in prison.
Ms. Grondin: Work can be done in prison, but outside as well. Why put them with other tough individuals? Why put the tough ones together?
Senator Dagenais: Thank you, madam.
Senator Chaput: Today we heard from police officers who explained to us that young people today know very well what they are doing, even though they are not necessarily mature. One might wonder whether they are responsible for the consequences of their actions. However, the young people of today also learn very quickly how to manipulate the system in order to use it to do things they should not do and then to manipulate the system to avoid being caught. That is something that may not have been seen in the past.
In your research, when you consult the documentation, have you read about this anywhere, this difference between young people now and in the past?
Ms. Grondin: The young people of the past?
Senator Chaput: Yes?
Ms. Grondin: But why does the crime rate decline when we do rehabilitation? The crime rate is declining. You can make statistics say all kinds of things, but here I am not just relying on statistics from a year ago or two. There are deficiencies in the statistics going back more than 10 years or so, and they come up again every year.
In states that emphasize rehabilitation, we can see that there has been a decline in crime. Obviously, for a police officer who is dealing with an exceptional case, he may need an exceptional solution.
What troubles me about this bill is that the focus is more on the crime; the focus is no longer on the child. If the child has committed a serious crime, we intervene.
Senator Angus: I just have a brief remark. The notice of meeting states that you are a Professor in the Civil Law Section at the University of Ottawa. It seems to me we are talking more about criminal law or criminology.
Ms. Grondin: There are two sections at the Faculty of Law of the University of Ottawa: common law and civil law. We teach all subjects to the students who will be working in Quebec.
Senator Angus: All subjects?
Ms. Grondin: It is called the Civil Law Section because it is the civil law system. If you wish, we can call it the Romano-Germanic system.
Senator Angus: I know; I am a lawyer in Quebec.
Ms. Grondin: So it is that system. That does not mean that we only teach civil law. I teach criminal law, but in French.
Senator Angus: You concluded your remarks by saying that you were "a parent, citizen and professor in the field. " So your field is criminal law?
And your entire testimony, in my view, concerns criminology and even sociology. You talk about ways of improving society. We are not necessarily talking about the provisions. Your philosophy seems to demand that we not imprison young people.
There can be no doubt that you are an expert in this field, but have you written any articles or books on the subject?
Ms. Grondin: Pardon me, but in our section, at the faculty of law, we have a course on criminal law and a course on sentencing law. There is the Faculty of Criminology; everything is related. We do not put on blinders to avoid seeing what goes on elsewhere. That is the solution.
We even have an interdisciplinary course on the children's law, which is given by 10 faculties. We do not look at children merely from the criminal standpoint; there is also the family standpoint and the psychological standpoint. We have to examine all those aspects. We cannot isolate the criminal side.
Now criminal law is where I have the most experience; I have been teaching it for more than 30 years. However, I also teach children's law, and I am a thesis advisor in that field. Lastly, with regard to sentencing law, it is my colleague who informs me about that.
Senator Angus: Thank you very much, madam.
[English]
The Chair: I have a question. I was not sure if there would be enough time.
Senator Angus: I like to leave you time.
The Chair: Sometimes you do.
Ms. Grondin, I listened to the discussion and I listened to what you said. With all of this, we all struggle with how we influence human behaviour to do what society believes to be the right thing and to live a good life. When someone gets off the track and there is deviant behaviour, how do we, as a society, try to get them not to repeat that and instead to do the things that are acceptable in society? Each of us, individually, has lived that with our own children — how we try to influence them to do the right thing. We have been influenced by our parents. To some extent, from that family unit, that is really what emanates how our society operates. The principles that relate to us and our families are the same principles that we try to extend into the broader society. I think that is what Canadian society is all about.
You made a statement that deterrence does not work with young people. I think probably you would have the same opinion of denunciation, namely, that deterrence and denunciation do not work with young people. I realize that we are talking about a criminal law context here, but it is deterrence from the perspective of influencing human behaviour. I struggle with your statement that deterrence does not work with young people. I have not done sophisticated studies; I am not a professor who has analyzed it, as you have, but I have raised children. I find it difficult to accept that deterrence does not work with young people. With our own children, we have tried to deter them and to indicate to them what is wrong, what is really wrong, and we denounce that so they will understand what is slightly wrong from what is really significant. We then tried to deter them and influence them so that they would not repeat it. From my experience, and in that context, deterrence and denunciation do work. I think they worked with me. I can think back to my parents and what they tried to do.
How can you make a statement that deterrence does not work with young people? I realize that how it is implemented is another issue, but have you overstated your belief on the potential effect of deterrence and denunciation?
[Translation]
Ms. Grondin: I am not saying that based on my personal experience. In a number of studies, criminologists have shown that, in their view, after studying the matter for several years, it does not work. That is what I am saying. I am relying on expert studies. I did not conduct them myself.
I believe you definitely have to intervene with young people. You must not let them go. You have to put them back on the right track, but it is not by putting them in detention that you will necessarily put them back on the right track. That is a last resort. And detention is at the end of the line.
It is one way of trying, but there are other solutions that should be tried with young people first. And when you are with young people, you are at the start of their lives; there are many things that you can try before moving on to the detention stage. You go with detention when you believe there is nothing more that you can do.
[English]
The Chair: We have heard that from other witnesses. I do not think anyone disputes that there is not one simple answer, and about rehabilitation and community involvement. We have heard that, whether it is law enforcement, those involved in law enforcement or otherwise. I think everyone is on the same page. It is just a question of how you put the pieces of the puzzle together.
Thank you. I really appreciate your response.
We have about two minutes left. I know that Senator Fraser has one final point on the second round.
Senator Fraser: You sort of were getting at this yourself in your question, chair.
The Chair: I must have been on the right track, then.
[Translation]
Professor Grondin, we have spoken at length about deterrence, with you and with other witnesses, but that same paragraph of the bill states that the sentence may have the following objectives — "may, " not "shall " — to deter the young person from committing offences, but also to denounce unlawful conduct.
I would like to know what you think about this principle of denunciation in the context of this kind of bill.
Ms. Grondin: I think you have to intervene to tell a young person that this is not good. There has to be a denunciation in the sense of an intervention.
Senator Fraser: But we are talking about the sentence.
Ms. Grondin: About the sentence and about prohibiting because that is what happens to the young person. Young people do not think of that. On the news, we see a lot of people engaged in street races. I saw one judgment, last summer, in which one young person had been with his best friend. They both had a new car. Ultimately, one of them was killed.
Senator Fraser: I think I know the case.
Ms. Grondin: It was his best friend. Even the mother of that individual thought that the other young man, who took part in the race with him, should not be detained. When young people decide to play hockey, hit each other and one of them becomes disabled, that is serious, but do they think of that when they go and play hockey? That is even tolerated in our society. Young people go and play hockey; that is fine. A street race is not fine. And yet it is a sport for them; they have fun — we agree that these are stupid activities that they are engaged in. However, should they immediately be punished with a long period of detention? I do not think so.
[English]
The Chair: Honourable senators, that concludes our time with Ms. Grondin. On behalf of all members of the committee, I want to thank you. You certainly have given us much to think about and, as you demonstrate, there are no easy answers on this. There are many opinions, but you certainly made your points forcefully and it is helpful to the work we have to do.
Honourable senators, we are continuing to focus on Part 4 of Bill C-10, which concerns the Youth Criminal Justice Act. We have had a lengthy day today, with a number of witnesses giving evidence on this matter.
I must say we are extremely pleased to have as our final panellist today Mr. Justice Merlin Nunn, who prepared the report of the Nunn Commission of Inquiry in 2006, which pertained to many of the very matters that are included within Bill C-10. I think, as everyone is aware, many of the recommendations from his work have been incorporated in Bill C-10.
Without further ado, Mr. Justice Nunn, we would be pleased to hear any opening statements that you would care to make.
Merlin Nunn, as an individual: Mr. Chair and honourable senators, it is a privilege for me to be here. I hope the things that I say will not bore you all to death and be things you have already heard a number of times today.
I think it is important that you understand where this all comes from. I did not understand it when I took on this inquiry. As a Supreme Court judge, I never dealt with a youth in the 22 years that I was on the bench, because they were all dealt with in the youth court. In fact, I had not read the Youth Criminal Justice Act because I knew I never was going to have to use it. Then I got appointed to this inquiry and I got brought up short pretty quickly.
You have to understand, from my point of view, I am no expert on youth justice. I do not profess to be. I had a particular situation to deal with of a child who, as we said in the title of the report, was spiraling out of control. He had gathered about 38 charges and had never been in jail, never been in custody and never been in court. He was never dealt with. When this fatality happened, the roof came off of everything: Why was he not in custody? This was the area I was dealing with.
I think any study of the Youth Criminal Justice Act must begin with the history. The history is very simple. The Juvenile Delinquents Act was passed in 1908 and lasted almost 100 hundred years — 80 or 90 years — and all it did was put kids in jail without any rights or concern for their rights, and they put them in custody, almost like putting them away and forgetting about them. They went to these particular youth prisons and they suffered all kinds of abuse. The first abuse was putting them there. That was the problem of the act.
Then came the Young Offenders Act. The Young Offenders Act came following the Canadian Charter of Rights and Freedoms. The Charter of Rights indicated all these children had rights and so on. The Young Offenders Act ended up with a great deal of legal stuff going on in the youth court and a great deal of custody. The custody varied from place to place and province to province.
By the late 1990s, Canada had more youth in custody than almost any other country in the world on a per capita basis. It had more than the U.S. even. We always like to think the U.S. is putting everyone in custody. That was the state of things.
Then came the Youth Criminal Justice Act. The parties that participated in developing that act had decided that almost no one was to go to prison, or youth to be put in custody. They made it extremely difficult. If you read the sections, and you do not have to read very many; sections 29 and 39, and section 515, I believe, of the Criminal Code, pretty well tell you that if you do not have a violent offence you do not have any chance of putting a person in custody. The difficulty is that there are two kinds of custody. One is custody after conviction. I was not dealing with that. That was not part of my inquiry, and I did not make any recommendations that way.
The other one was pretrial custody. The thrust of the report, from all the witnesses that I had, was that there was no way to take this child by the scruff of the neck and say, "We have had enough and we are not going to put up with it, so we will put you in custody awaiting your trial. " Then the other side of that coin is to have the trial as quickly as possible.
That was basically the thrust of the pretrial custody. You cannot have a kid with 38 charges. He thinks he is never going to be dealt with. He thinks that the talk of justice and so on in trials is a bunch of malarkey. This was a way to bring him up short.
The question is then, why did you provide for the suggestion that custody be eased for pretrial custody? The reason was very simple. I wanted to open the door just to make it a little bit ajar but not to leave it wide open, knowing that the courts were very strict in their interpretation of the act. I had some confidence that if I opened the door a little bit it was not going to be thrown wide open and misused.
Canada became a signatory to the United Nations Convention on the Rights of the Child. That convention says that when you are dealing with any child — and it lays it out in any forum whatsoever, administrative, courts, youth — the primary concern is the best interests of the child. If that is the primary concern, then anything we do to amend the act must be in the best interests of the child.
I felt, by my changes, that what I was recommending was in the best interests of the child, because we were going to take him and let him know that society was not going to put up with his conduct of stealing a car every second or third night. He could start a Dodge Neon faster than you could start one with a key. He had plenty of them.
The Youth Criminal Justice Act incorporates the United Nations Convention on the Rights of the Child. It recognizes that young people have special rights and privileges and so on.
To amend the act, we must accept the premises upon which youth justice is based. It is based on adolescence. Adolescence is described, as far as the act is concerned, as the period between age 12 and age 18, but adolescence is a period of time that you have to accept by now, from the studies and the professional people who have been involved, is marked by insecurity, an undeveloped sense of responsibility, vulnerability, undeveloped character and moral sense. All of these features are there. They will be something you have to consider in a few minutes. You have to accept that that is one of the principles in the Youth Criminal Justice Act.
The next one is that the experience over the years has shown that custody is not the way to go. That is why they came along and changed the system to really prevent custody. The YCJA was lovingly referred to as "you cannot jail anyone. " That is the way that it was.
My report, as I say, was based on this child with 38 charges. If you were dealing with sections 29 and 39 of the act, you could see quickly that there was no way. In fact, when he did go to trial in December on his charges, the judge who heard it went into the whole matter of youth sentencing and came out saying that he could not put him in custody at all, that there was no way; and there was not a way.
What did I do? First, I had about 55 witnesses. I had police witnesses, prosecutors, social workers, teachers, policemen. I had a whole cross-section of people who were looking after these homes for children, mental health workers — I had them all. The interesting thing is that not one of them really spoke against the Youth Criminal Justice Act. They all thought it was a good act, and I was a little bit surprised at that, but this was the essential thought, and it really is working from the evidence that I had. As it is, it is working with well over 95 per cent of the young people.
The policemen had the opportunity to take the child home and say, look, if you do this again and I catch you, you are going to be in big trouble so you had better not do it again, and most times the young person did not do it again. Some did, but then they are dealt with a different way. The societal methods of dealing with these children expanded, and most of them are pretty good and they work.
The evidence that I had dealing with this particular person was that they called him a high flyer. They said we have about 30 or 35 high flyers all the time, and that is why they wanted to change and have some way of picking up the high flyer and not letting him get away with too much at the beginning, and maybe for rehabilitation if the guy knows he will be dealt with it may be a lot easier to rehabilitate him.
I had a great deal of confidence that the higher courts would limit any great expansion of any recommendation that I made. I specifically and pointedly did not suggest any wording for the changes I made. I wanted to leave that up to the drafters. On some sections I did make recommendations, and I did recommend that section 3 be amended to include "protection of the public " changed from "long-term protection of the public " because I do not really know what that means, but it has basically been taken to mean that you do not deal with the person very severely because that is not for the long-term protection.
Anyway, as I say, I left the language to the drafters. Section 29 was the reference of dealing with section 515 of the Criminal Code and bringing it into the Youth Criminal Justice Act. I supported that. I thought that was a good change. The changes to section 39 defining the things that were the offences, the only thing before was a violent offence, and they put in an amendment, an offence that endangers the public in some way. I do not know the exact wording they have, but that is the thrust of it, and I agree with that. That was necessary because you could not deal with section 29 without being referred to 39; and if you could not find the thing in 39, you could not sentence in 29; so it was a runaround that you had.
Those were the reasons I did what I did. I support those changes. I do not support a number of the other changes that have been mentioned. When you look at each one of those changes, you have to ask yourself: Is this in the best interests of the child? If it is not, then it should not be changed; it should not be in the act.
I will not comment on some of the other things that I am against but will just tell you I am against denunciation and deterrence in the act. I do not think that is a necessary change. I do not think it is in the best interests of the child. I do not think it helps rehabilitation.
I am certainly against keeping a police record of all the extrajudicial activities because I think you are just creating a bureaucratic nightmare and really not doing anything in the best interests of the child and putting a plug in against the rehabilitation of the child.
I have a problem with adult sentences, and let me tell you what it is because someone will say to me, well, you dealt with A.B. His name is out all over the place, his real name, and he was in custody after conviction for his offence and got the maximum, I think, of the child penalties. He was 16 years old when this happened, probably 17 by the time he got convicted. He was doing well in Waterville, which is the jail in Nova Scotia for youth, a youth custody place. I went down and visited. I talked to him down there, visited, talked to the authorities.
If I had a son that was in trouble, I would hope that he would be down in Waterville very soon because they do everything. They teach them. Sure, there is a disciplinary approach that they have to do certain things at certain times, but this fellow entered the facility at grade 8, and by the time I went down a year and a half or so later he had completed grade 10. He completed all of the levels of the Red Cross swimming except the last one, life saving, and he was going to do that. He had taken up the guitar and was playing that. He started reading. This was a kid with ADHD who could not read anything. He was reading at the grade 5 level when he was in grade 8. He started reading. I asked him what he was reading, and he said Zane Grey. I said great, because if you can read Zane Grey maybe you will move to some other thing. That is what he was doing. He was going to take a course and go out west.
Then what happened was, when he became 18, and he may have been held a little bit longer than 18, I am not sure, he had to move to a federal prison to complete his sentence, and that was disastrous because when he got out he got into trouble a number of times again. He did not do what he was going to do to go out west and be an electrician. He has been arrested three or four times on pretty well minor offences, but I think that one of the biggest problems of the Youth Criminal Justice Act and custody is what you do with them when they are 18 and still have sentence time running because I think sending them to a federal prison is just terrible. It is just a terrible place to send a young boy.
You may read about some of the stuff that goes on in these prisons, but we kind of forget about them. We just say they happen, I guess, and no one pays much attention. I think that is why he got in trouble when he got out. I think he lost the rehabilitation that had gone on in the youth custody prison.
Having told you that, all you can do when you are looking at an amendment is ask yourselves if it is in the best interests of the child because that is the standard that the government should be following. That is the standard they said they were going to follow. I am not picking on this government. It does not matter which side is in; I think this is bad. They must look at it from the point of view of the best interests of the child.
The Chair: That was very helpful, Justice Nunn. We will now turn to senators for questions.
Senator Fraser: Earlier today we heard from a legal aid lawyer who works exclusively with young people under the Youth Criminal Justice Act. She discussed what some of us think of as the whole reason for your report, the pretrial, pre-sentencing, custody elements. There is a long section in this bill to handle that. It had seemed to me that it was fairly carefully drafted to set up safeguards to avoid just slinging everyone into custody and to focus on the people who really needed it.
Having read your report, I feel that at the top of the list of people who really needed it would be those engaged in violent or very dangerous and risky behaviour. She said it is not going to work that way because, as written, the first thing this bill says is that the young person must have been charged with a serious offence or have a history of repeat offending. In this bill a serious offence is an indictable offence for which the maximum punishment is imprisonment for five years or more. She said that a fair amount of the conduct that we would expect to be captured here would not be.
Do you think that is a fair reading?
Mr. Nunn: Yes, I think it is a fair reading. The difficulty with the existing act and some of the changes that have been suggested is that one little word gets put in and everyone has a different view of what it means. In the Youth Criminal Justice Act, when you say "serious " you are really tying it down.
I still have a problem with people who think that pretrial custody is the same kind of custody as custody after conviction. It is not. I do not deny that it is a form of custody, but it is short-term, and a person can always make an application for bail, at which time the court can reconsider what it ordered earlier and deal with the person. Putting in built-in restrictions is not the way to go. I would like not to see "serious. " Why could they not have put in "an offence under section 39 "?
Senator Fraser: Or "violent "?
Mr. Nunn: Section 39 covers violent offences.
Senator Fraser: I am sorry. I was going back to the definitions.
Mr. Nunn: If changed, it would cover offences that cause harm or may cause harm to the public at large. Most people do not see the difficulty. You have to look at some cases. A kid can steal a car and drive at 150 kilometres an hour down the main street of any city where the speed limit is 50 kilometres an hour. He can cause all kinds of damage, but what is he guilty of? He is guilty of car theft. That is crazy. The way the act is applied, even if he hits someone, he may be lucky enough not to be charged with a violent offence. What did he do? He was driving a car. He was speeding, and speeding is not a violent offence. You get twisted around all the time and that should not be the case.
Senator Fraser: Some adjustment is required.
My next question has to do with the definition of "violent offence " that is proposed in this bill. "Violent offence " crops up repeatedly. A violent offence means, among other things, an offence committed by a young person that includes as an element the causing of bodily harm.
It has been suggested to us by some folks that it would be appropriate to include in that definition some element of knowledge, that is, that the young person knew or could reasonably be expected to know the act would or could cause bodily harm. That has caught my attention because we all know that young people do some crazy things, and some of those crazy things may end up purely accidentally causing bodily harm to someone when that was not the intention and it was not necessarily even a likelihood.
One of my colleagues said, "We used to throw snowballs at buses. " If you threw a snowball at a bus and, on the way, hit a little old lady on the head, would that really be a violent offence within the meaning of the act, or should it be?
Mr. Nunn: I do not think it should be regarded as a violent offence. What was the suggestion that you started with?
Senator Fraser: With knowledge, or obviously intent, but even a reasonable teenager would understand that if I do this, I may hurt someone.
Mr. Nunn: If you put it on knowledge, you are opening another door that would allow for great disparity across the country. Also, you are breaking away from the whole notion of adolescence. There is a lesser responsibility.
In Halifax two young boys were going to rob a store. One of them got a .22 rifle. A man was walking across a bridge near them and out of the blue one boy picked up the gun and shot and killed the man.
Will the court be asking what knowledge he had?
Senator Fraser: I would have thought that shooting a gun at someone would count.
Mr. Nunn: They are 14 or 15 years old. I have a great problem with that. The whole notion of adult sentences is difficult for me when I accept the notion of what adolescence is like, and I am saying we have to pay attention to that. The act is the way it is in order to get along with adolescent problems. Then we want to impose an adult sentence on a 14-year-old?
I have real problems with some of the suggestions. As I say, I am not an expert, but I think sometimes there are too many experts stirring the pot. I think the best expert is common sense. If you put your common sense to it, you cannot say a person is 14 or 15 and he is an adolescent and as a result has a lesser sense of moral responsibility and a whole host of other things, and then say, "But because you did this, which falls within being stupid and being an adolescent, we are going to sentence you to an adult sentence. " You are taking away the whole part of the act that was there to protect him because of the nature of the offence, and the nature of the offence is what hits the newspapers. On this fellow, after I got in the inquiry, the newspapers had a year or a year and a half of all kinds of stuff every day.
The Chair: Justice Nunn, we have a long list of senators who want to ask you questions. I know they will be as concise as they can be in their questions.
Mr. Nunn: I will try to be, too.
The Chair: We are extremely interested in what you have to say.
Senator Runciman: Thank you, Justice Nunn, for being here. It is very much appreciated by all of us. When you were making your verbal submission at the outset, you talked about dealing with some young offenders and sending them back home with a good talking to. Then, if they reoffended, they might be facing some incarceration or some heavier penalty, and you said that might have a deterrent effect. It struck me after you made those comments that you expressed unhappiness, perhaps, with the fact that this legislation increases the judicial discretion by restoring a judge's right to consider specific deterrence and denunciation in sentencing. Could you elaborate on that? On the one hand, you were saying that a sentence might deter future activity, but then you have said you find it troubling to incorporate this into the bill.
Mr. Nunn: Yes, I said that. From the first part of what you said, there are a number of intermediary steps after the one where the policeman sends the child home. The policeman can then do other things, and so can the prosecutor. The prosecutor can tell the kid what to do and go and do it or else he will be before the court.
I do not want to offend anyone. I do not think deterrence is a notion that is in the best interests of the child. It is a punitive thing. Maybe it would stop him, and maybe it would not. As an old judge, I used to have to say that deterrence has two aspects: to deter the person himself, the convicted criminal, and also to deter other people from committing the offence. I said it so many times that I began to say, "I do not believe that for one minute. I do not think that the criminal mind works that way. " If one guy robs a bank and gets convicted and sentenced, and in Nova Scotia you used to get five or six years for that, then I come along and say, "Well, I am smarter than he was, and I am not going to get caught, and I will rob the bank. " I am not being deterred by the fact that he spent eight years in. I do not subscribe to the notion of deterrence anymore. I may be crying in the wilderness, because the courts have to say something, I guess, and this is an approach they take with the adults. I think it is not in the best interests of the child we are trying to rehabilitate to say, "Look, I am giving you this sentence to deter you from ever doing this again, " because what likely will happen is the judge, instead of two years, will say three years, because he has to show that this whole act is being deterred.
Senator Runciman: This is a case where increased judicial discretion is not something that is attractive to you.
I think you mentioned in your comments earlier about the extrajudicial measures. Did you indicate that you were not in agreement with that component of the legislation? I was not quite clear. I am referring to keeping the records.
Mr. Nunn: No, I really am.
Senator Runciman: You are supportive or not supportive?
Mr. Nunn: I am not supportive of that. I just do not understand.
Senator Runciman: I would point out that, earlier today, we had a witness here, the deputy chief in Halifax, and he indicated that the Halifax police service does keep those records.
Mr. Nunn: I have great admiration for him. I think he was there almost every day of my inquiry as it was going on. He is very interested in youth. Still, he has a police mind, and the police mind is records and we are dealing with it. If you start keeping a record, what would ever make the youth decide, "Look, I will go along with this rehabilitation, " because he is going to say to himself, "No matter what I do now, I have a record, and someone will bring up the record and I will be in trouble. "
We are talking about 12 to 18. With youth of that age, I think we have to deal with whatever the offence is. He is dealt with according to that offence, and you do not bring in his record unless he has been convicted of a whole bunch of serious offences, and then he does have a record because it is a court record in the youth court. Can you imagine the nightmare of the police keeping these records? The police say that 95 per cent of the kids they deal with are dealt with extrajudicially, outside the act. If you have to keep all those records —
Senator Runciman: Apparently the police services think it is helpful. The deputy chief indicated to the committee that he felt these amendments were modest and targeted reforms. Instead of the perception that this is a straight line to incarceration, he said it is like a ladder to reach jail with multiple wrongs. I just wanted you to be aware of what he said.
You also talked in your earlier comments about the recommendation that you made about protecting the public, which has been accepted by the government, and the removal of the word "long-term. " We have heard concerns from Quebec, essentially, about that. Can you talk to that issue a little bit? I have not been able to get my head around the Quebec concerns with respect to that. They think this will somehow remove the rehabilitation aspect, I guess, in terms of long-term turning around of a young offender. To me, the way I interpret that, it is both short and long term, and the rehabilitation commitments remain in the act.
Mr. Nunn: The person who really pushed that at the inquiry, in his oral testimony and in written material, was Deputy Chief McNeil. As I say, I have great admiration for him. He is not just your ordinary policeman. I accepted that notion and went on with it because when you are the judge sitting up there and considering whether or not you are going to do something, you look at the offences and then you look over to section 3, and you say, "This act is designed for the youth and all the things about the youth, but also the protection of the public, the long-term protection. " I think the Supreme Court of Canada dealt with the expression "long-term " and they were not very happy with it. They were happy with it because they just took the most stringent approach to whatever the problem was they were dealing with.
I do not see it as a problem. It is like any general section at the opening of an act. I am the Ethics Commissioner in Nova Scotia now, and the opening of the act says that this act is to make sure that the members of the legislature and the civil servants all act properly and in a proper manner, and so on.
However, when you are dealing with it in court and you are dealing with the general section, it just gives you that little bit more that you can use to formulate what you will do, your sentence, whatever it may be. It can work the other way. You can take that, and when you are dealing with a fellow, the prosecutor is saying he should be put in custody, and the defence lawyer is saying he should not. You read that and you say, "Well, in what way is the public not being protected here? What protection will the public have if I put him in custody? Therefore, I will let him go because the protection of the public is not necessary in this particular case. "
It is a two-way street, as I see it. I think it is a good amendment to the act.
The Chair: When you say that, Justice Nunn, what goes through my mind is testimony we heard earlier today from family members of some victims, and circumstances where a young repeat offender who either did not serve time or served very little time, and there were a number of previous very violent offences, got out and murdered their child, and, in another case murdered her father. I find it a little difficult to understand that incarceration or separating someone who is part of the 5 per cent — as you say, 95 per cent of the Youth Criminal Justice Act works, but we are focusing on the 5 per cent — and removing them from society for that period of time would serve no purpose in the context of protecting the public and protecting families. I cannot reconcile that.
Mr. Nunn: First, when you say "committed a number of violent offences, " you have to be sure that what happened falls within the definition of a "violent offence. " It is hard to get the courts to go along that some of these are violent offences. It is theft of a car, and it may have been violently operated and so on, but it does not ring a bell as a violent offence.
Do not take my percentages as being accurate. Regarding the 95 per cent, I think it is higher than 95 per cent. I think it is 96, 97, or 98 per cent that the Youth Criminal Justice Act deals with fine. It is 2 or 3 per cent, the 30 or so high flyers who exist all the time, in Nova Scotia, and I am sure there are more than 30 in Ontario and maybe 30 in Manitoba and so on, but it is a small group. Again, one of the things happening in today's society, as far as I can see, is a great interest in revenge, so that when someone does something, revenge is the only answer. Revenge is what will — what is the expression?
Senator Fraser: Bring closure?
Mr. Nunn: Bring closure, yes. I was sentencing a fellow for murder. It was a fellow who never got in trouble, a great big fellow, and the guy that he dealt with was having a problem with one of his friends. This was in a tavern. They go out and they are out in the parking lot, going to go away. The fellow comes along and starts to fight with him. The other guy is 6'2, " and he is a little guy. He takes out the knife, one thrust, and it just happened to go in the wrong place and the guy, within I think it was 35 seconds, was dead. When it came to sentencing, I looked in the court and I saw a woman taking notes and so on. I said, "The press is here. This gives me a good opportunity to lay out the problems of sentencing. " I gave it in spades, right from the beginning to the end, and how the courts have to deal with these. I figured that tomorrow's paper would at least have some explanation. The paper the next day was a three-column article, down in sort of the middle bottom, and it was all about the mother and father against the sentence and they want the guy in jail and they want him in jail forever, they want him hanged; nothing was said about sentencing.
I think revenge is not a very good motive.
The Chair: As you know, Justice Nunn, for victims and the issues they go through, that is one thing. For us as legislators, that can play no part in what we are considering, nor will it.
Mr. Nunn: You cannot design the act to suit the victims. Unfortunately, victims are injured people. Supposing you said, "Okay, I will make the law so that someone who does this will get an extra term or an extra-long term. " How can you say that it is in the best interests of the child? That is what you are dealing with. It may be in the best interests of the victim, but not of the child.
Senator Cowan: Welcome, Justice Nunn. It is an interesting reversal of roles here, the first time I have had a chance to ask you questions, rather than the other way around. I am delighted that you are here, and your insight is very important to us.
I would like to get back to a point that had to do with the issue of judicial discretion and the mandatory minimum sentences. I am sure you have had cases, and you mentioned one a moment ago, where you thought you were making a point and you thought you gave a sentence that was appropriate in all the circumstances, and our friends in the media did not see it exactly the same way. You must have had people come up to you and wonder how you could have ever come to a conclusion such as you did. I am sure your brother and sister judges have had similar experiences.
What do you say about that as a judge, as someone who has to evaluate all of the evidence before you and make a decision? Is it helpful to you, as a judge, if that discretion is limited in a way, or is it better if you are able to be less limited or unlimited — I guess nothing is unlimited — but to have fewer limits on your discretion when you are making your judgments?
Mr. Nunn: Are you talking about adults?
Senator Cowan: I am talking about your experience. You are an experienced trial judge. You have tried many cases over 22 years.
Mr. Nunn: Twenty-two years, yes. I think mandatory minimums are not the best approach. Judges are appointed. I was president of the judges' organization some years ago, and I would have said there are 800 or so Supreme Court judges across the country. I would have said that there may have been only two or three, or half a dozen that I would not want to be before, but the rest of them were all hard working and good. I think a mandatory sentence does not take into account the real factors in the case. It is easy to say, "Give them the minimum. "
I learned that very early in the game. I had a large 6'3 " or 6'4 " Black person who was before me, and he was charged with robbery. The robbery happened when he was in the washroom in the tavern, and when another fellow went in, the man before me said, "I want your money. Give me your money. " The fellow said, "I only have a dollar. " He said, "I will take that, " so he took the dollar and the fellow went back out. His brother was with him. He said, "I got robbed. " The brother said, "Oh, I will fix that. " The brother goes in and sees this large fellow looming in front of him, who says, "I want your money. " He said, "I only got a dollar. " The guy took it and he was charged with robbery.
This fellow was 34 years old. He had a labour job. He worked steadily and was making decent money. He was looking after his mother, living with her in an apartment in Halifax. I have forgotten whether he pleaded guilty or was found guilty. I am dealing with him.
What in the name of heavens will I do with this? The appeal court has said that robbery is automatically at least three years, which is like a minimum sentence. I am not going to sentence this guy to three years, so I gave some kind of a suspended sentence and six months to a year of probation. I thought I handled this one pretty well. It kept him working, kept him supporting his mother, kept him in Halifax, and he had no great record, no record at all. The Crown appealed, and it went before my former partner, who was the Chief Justice at the time. It came down, "We have decreed that the minimum sentence for robbery is three years. Justice Nunn's sentence is not correct, and we are changing it to three years in penitentiary. "
What happened to this guy? He lost his job. I do not know what happened to his mother. She obviously would have been on welfare or something. What good did it accomplish? That is the problem with minimum sentences; no two people who appear in court are alike. They all have different characteristics and are in different situations.
I do not know why you would appoint a judge and then say, "Judge, you cannot do this. " One of the problems is that terms of sentences have gone down in years. I used to sweat blood over what I will give this fellow, five years or six. I give him six years, and then I learn he is out on the street a year and a half later, two years later. If I gave him a year, he is out on the street in three months. That is not my fault, but I do not think that mandatory sentences are going to correct that. They will put everyone in who commits a crime as if they are all little chickens of the same calibre.
The Chair: Colleagues, we have six senators who wish to ask questions of Justice Nunn, and we have half an hour left for this panel. Please keep that in mind. Justice Nunn, if you will consider that in your responses as well, I would appreciate it.
Senator Lang: Senator Runciman spoke about some of the witnesses earlier today, and I have said it on a number of occasions: The sense we are getting from the public, and it is a common thread, is that there is a lack of confidence in the judicial system generally. One can argue for whatever reasons, but that is certainly coming through loud and clear as we have these hearings day after day.
You touched on it when you mentioned the fact that you might give someone five or six years and they are back on the street within 16 or 18 months. I believe that is one of the inherent problems.
Mr. Nunn: That is the parole board.
Senator Lang: I am not arguing that, and I understand how the system works. The reality of it is that Joe Citizen out there, who thought that individual was getting six years, is blown away when that individual shows up on their doorstep 16 months later. Then you wonder why there is a lack of confidence in the judicial system.
I also want to say that on the concept of deterrence, I think in most cases people are not looking for revenge, but they do believe in consequences for someone's actions. That is why we have jails. Otherwise, if there is no deterrence, we do not need jails. Everyone can be on conditional parole or conditional release and we can deal with it accordingly, but that is not the real world we face.
You were very much involved on that inquiry. It had to do with that young person, and it is a real tragedy. You said he had 38 charges that had compiled over a period of time as the court system did not deal with him and he just kept getting out and coming back. It was no fault of his, quite frankly.
It seems to me the root of one of the real problems here is that these issues are not being dealt with quickly, which is allowing this to continue. It would seem to me that people such as yourself, who are very knowledgeable about the system and how it works, should be coming forward with recommendations on how to expedite the business of justice so that justice is not only being done but it is seen as being done, and this young person may not be in the situation that, in this case, he finds himself in today if he was dealt with in the beginning.
I have gone to youth court. I am not going to get into my experience in great detail, but I can tell you right now those young people who were obviously doing part of the circuit, part of the 35 high flyers — we all have them, whether you are in the Yukon or Nova Scotia — have no respect for the law.
Perhaps you could expand on how you see revamping the court system so that we can deal with these young people in an expeditious manner so we can hopefully prevent some of this happening.
Mr. Nunn: I did in the report. I wanted the police to break away from the habit of saying, "Look, I caught you here doing this, now I want you to come back in court on June 10 and you will be dealt with then. " For youth, June 10 from February is like eternity. As someone else said in his testimony, the youth is thinking no further than the Friday night dance, and then next Friday night, so he is going a week at a time. This is wrong.
I indicated in the report that the person should be charged and he should be brought before the court within a week. That will put a heavy burden on someone, but it was supposed to be done pretty fast.
I am told that all of the recommendations have been accepted and have been or are being worked on in Nova Scotia, so I have to presume they are doing something. I gave them the English system, which was a vast improvement in time for the child to be dealt with, and I think they are working on it.
I agree with you that if you take the youth and tell him to come back in three months' time, he does not think he is ever going to come back.
Senator Lang: I want to pursue this because I think it is important. To be able to expedite procedures in court so that they happen within a week and a decision is taken within that period of time or within two weeks, do the procedures in court not have to change as well so you can deal with it?
Mr. Nunn: Yes.
Senator Lang: Perhaps you could expand on that.
Mr. Nunn: You may need more judges in the youth court. I do not think you will have 400 of them showing up in one week. I think there would be a gradual period where maybe it will take three weeks or a month before it was done, but that would be whittled down until they were operating pretty quickly. That is what I think, and I think they should.
The Chair: Thank you for that response.
Senator Baker: You would have to increase the number of police officers because you would have to free them for testifying purposes. You would have to speed up the disclosure that is necessary in a criminal trial. That will require some extra resources. Within a week, I do not know, judge, if that is possible.
Mr. Nunn: It may not be. Really, I have not given much thought before I came here as to what I said five years ago, but I know that I did say, "Speed the process up. "
Senator Baker: Judge, we have heard from you now and from one other judge. It is a breath of fresh air to hear you and your testimony and that of the other judge as well. Unfortunately, people will say that these amendments to the Youth Criminal Justice Act are the Nunn amendments; they are the result of your report. However, you have distanced yourself considerably from some of these enactments that we are considering here today.
Mr. Nunn: Yes.
Senator Baker: Are there any of them that you agree with?
Mr. Nunn: I agreed with the protection of the public. I agreed with the 29 and 39 sections, violent offences, because you could twist yourself in a knot trying to do something with the definition that is there now. I do not know whether there is anything else that I did. I certainly was against deterrence and denunciation.
Regarding denunciation, the fact that it is an offence denounces it from anything else. I am against extending the use of adult sentences, particularly at age 14, and so on. I would suggest on that one that if you are going to go along with it, then you put in that the prosecutor must prove that the person is not as adolescent as he seems and prove that beyond a reasonable doubt, not on a balance of probabilities.
Senator Baker: Yes, beyond a reasonable doubt. For clarification purposes, when you say a number of offences, for example, someone has 30 charges against them. In today's world, which is different from 20 years ago, you would really have to look at the charges to see how many actual delicts are there. From one delict, from one offence where you would have been charged with one count 20 years ago, today it could be six or seven. Am I correct?
Mr. Nunn: Yes.
Senator Baker: You might find someone's criminal record could be 10 or 15 pages long, but it happened on two occurrences. For the general public's understanding, when you mention a certain number of offences, given the fact that there is a presumption of innocence when you are charged and when you first appear before a judge within 24 hours, which is a requirement under the code, if the offence is not indictable, the normal procedure is that once you are charged, even at a police station, the officer is supposed to release you on a promise to appear. You do not even go to a judge.
All of those things, unfortunately, the general public and sometimes we misunderstand — that is, what the importance of some of these terms is and what is actually going on.
My question is this: I think you have done a marvellous job. I want to congratulate you.
The Chair: Does he agree?
Senator Baker: I wish you the best for the future. I hope you agree with me.
Mr. Nunn: Thank you very much.
[Translation]
Senator Boisvenu: Mr. Nunn, it is a privilege to hear you this afternoon. I can assure you that not all victims or their families, myself included, are full of feelings of anger and revenge. You have raised an interesting question that I myself have been considering for years: are the various authorities not working too much in isolation?
I have previously compared our management of criminal behaviour to the situation of a 15-year-old cancer patient who is initially under the care of one physician and who, upon relapses at 24 and 40 years of age, is cared for on each occasion by various doctors. The second physician does not see the medical file of the first and the third does not see those of the first two. I get the feeling we manage our crime in somewhat the same fashion. A young criminal spends three or four years in a youth centre and his file does not follow him when he is released. He subsequently winds up in a provincial prison and no one has access to information in his criminal history. All we know is the type of crime for which he was convicted. Then he winds up in a federal penitentiary, and we start over.
Based on all your years of experience, would it not be a good idea to consider ways of further integrating the tools of punishment, as it were — youth centres, prisons — in order to better integrate all the rehabilitation programs? It is as though everyone is working in isolation.
[English]
Mr. Nunn: On the criminal side, the adult criminal side, the records are kept and they are there. It comes before the court. If someone is charged with something and his trial is starting, the prosecutor has, from the RCMP, the whole record. I have no problem with that. The problem that I have is with the suggestion of keeping the prejudicial records — in other words, the records with youth of the times that the policeman stopped him and sent him home; the time that the prosecutor sent him home; the time that he went to restorative justice, all of which takes place with a youth. I do not think it should be kept as a record because it is not in the best interests of the child. That is the first and biggest reason.
I think it is harmful, in trying to work out a rehabilitation of that child, because the knowledge that a record has been kept of every step along the way is not rehabilitative, in my view.
The Chair: Do you have one further short question?
[Translation]
Senator Boisvenu: The average number of stays in Quebec prisons is seven. At the federal level, it is four. I recently visited Donnacona institution, where I saw a lot of cardboard boxes containing prisoners' files that no one had ever taken the time to look at.
It is as though the system were starting a patient's treatment over from scratch without looking at his medical file. In my opinion, something is lacking with regard to integration.
[English]
The Chair: Do you care to comment on that?
Mr. Nunn: I do not know whether there is something wrong with it. It is a problem. It is like when you get someone in front of you and he has been convicted and you are sentencing him. The first thing you hear is that he was abused in his family by his father or by his uncle and it all starts from there, all the way up. Sooner or later, you turn a deaf ear to that kind of thing. I do not know, but with an abundance of records, you end up dealing with the records and not with the individual, if that makes sense.
Senator Jaffer: Justice Nunn, certainly I read your report and the recommendations that you made about the process and the accountability. I want to ask you a question about your experience. Should we be sending to prison people who have mental disorders?
Mr. Nunn: Should we be sending to prison people with mental disorders? I do not know. You could say that almost every criminal who is facing you has some kind of mental disorder, and we have been sentencing them. There is no place else to put them. That is probably the best answer.
Senator Jaffer: Justice Nunn, I have been a lawyer in my other life, and in speaking to judges I know how often judges struggle with the aspect of proper sentencing. You have expressed that today as well. Judges often told me there is not a cookie-cutter approach to this. I see mandatory minimums as a cookie-cutter approach to how you deal with the offender. We know that each offender is different, and they have very different circumstances. The sentencing you would pass on offender A under the same circumstances would be very different for offender B because they are two different offenders.
Do you feel that removing flexibility from the judges will hasten or delay the process in the court system?
Mr. Nunn: I am not in favour of mandatory sentences because I have seen so many different situations of a particular offence. You could do the same offence five times with five different people and it is a whole different set of circumstances. I am not happy with minimum sentences for adults certainly.
I do not know how the minimum sentences would work if I were to commit an offence under the Criminal Code, but I am a youth and the offence calls for a minimum sentence. I do not know what happens in the youth court in that circumstance. I just cannot say anything other than that I am not happy with it.
Senator Angus: Your Lordship, it has been very refreshing for all of us to have you here. Thank you so much for coming up and sharing your views with us.
One of the statements you made, and you repeated it several times, is that you are against the concepts of deterrence and denunciation. I need a little more understanding. What do you mean by denunciation? I know it is a term of art, but in your context what is wrong with it?
Mr. Nunn: I always looked at it as something that you gave the fellow a little higher sentence than you would have given him normally because you are trying to please the higher court by showing that you have recognized denunciation and deterrence. There is an initial deterrence. It is an offence. That is the first deterrence. You do not rob a bank because it is an offence. I do not think that there is any deterrence beyond that.
Senator Angus: I agree, but what is denunciation? You are denouncing something. It is not a concept I am familiar with.
Mr. Nunn: You would be denouncing the activity of the youth in the offence that he committed. You would be denouncing that particular offence.
Senator Angus: By punishing him?
Mr. Nunn: In effect. I do not see what else you can do. I am afraid that that will open the door to more adult sentences between 14 and 18. That is a door I would hope you do not open.
Senator Angus: The other thing you referred to, and we have had a few other witnesses talk about, is the United Nations Convention on the Rights of the Child. You said this at the very beginning in relation to your understanding of the Youth Criminal Justice Act and how it is designed to protect children. Have you studied these amendments that we are considering in Bill C-10?
Mr. Nunn: Yes.
Senator Angus: Do you feel that as drafted the bill offends the UN Convention on the Rights of the Child?
Mr. Nunn: When you look at the best interests of the child, how is it in the best interests of the child to talk about denunciation or to impose something more for denunciation? How is it in the best interests of the child to talk about deterrence? You can say to the child, "Look, I am sentencing you to three years, and a good reason for that is to deter you from ever doing this again, " but that is not the kind of deterrence. You have to go to the cases in the courts, and the courts tell you there are two kinds of deterrence.
I sentenced a fellow who caused a death in a motor vehicle accident, and he was drinking, but it was a crazy situation that I cannot totally remember. The prosecutor was telling me that I had to consider deterrence in this, not only his deterrence but also society's, but I said, "I don't put much faith in deterrence. I do not think it does very good. " The appeal court got it and they said that the learned judge was wrong, and deterrence is a factor and so on.
Senator Angus: Did they increase the sentence?
Mr. Nunn: Yes, they increased the sentence.
I went to Harvard, after I finished Dalhousie Law School, and I took a course in criminology. We went through all of these particular things about sentencing and so on, and I had to write a paper. I asked the professor what he would suggest as a paper. I was there in 1958, and the English Court of Criminal Appeal started, I think, in 1908. It was its fiftieth year. The professor suggested I write a report on how and what the English Court of Criminal Appeal has added to the problem of sentencing. You would not believe it, but in 1908 they started talking about denunciation and deterrence, and they began talking about a few others of these types of principles, and they never changed them in the whole 50 years. They just kept saying the same things. It made a short paper, but I really was astounded.
Senator Angus: Well, we have to change it now. Thank you very much for your help. It looks like we have gone a little beyond what your recommendation said.
Mr. Nunn: I should say to you, from what I told you about the appeal court, I was not always right.
Senator Frum: Justice Nunn, I found myself having a very emotional reaction when you were speaking about how you often see on the part of the families of the victims the desire for revenge. I was feeling strongly because earlier today we had another witness here, Line Lacasse, whose 17-year-old son was murdered by a group of 10. She explained to us that of the 10, 8 of them were out of jail in less than 2 years and 2 of them — and this is just my recollection of what she said today — 2 of them subsequently attempted to murder someone else shortly thereafter.
I found her testimony so moving because I thought she was entirely without any sense of revenge. Her motivation for testifying in favour of this bill was because of her concern for public safety and her concern to see preventive measures put in place.
It had nothing at all to do with emotional reactions on her part. I guess she could maybe imagine that, had there been such preventive measures in place, her son could be alive in the circumstances.
I was having difficulty hearing this idea that revenge is what motivates people when they want to see lengthy sentences.
Mr. Nunn: I do not want you to think that everyone wants revenge and that every situation is a revengeful one. I am saying society at large has reflected, by comments on the court decision or what you even hear on the street, that if someone does something that is bad — and the worse it is, the more it is their attitude — "Hang him. Do not bother to waste time putting him in jail. Just get rid of him. " That is a common approach.
I think a lot of people, under the notion that Senator Fraser spoke about when she gave me the term "closure, " think that penalizing the person and punishing them — and the more severely you can do it the better — brings closure. I do not think it brings closure at all.
I would admire the woman you are talking about who was able to experience that terrible tragedy and come out looking for a good social approach. I do not think for a minute that revenge applies to everyone. There are many people who do not do that.
[Translation]
Senator Dagenais: Thank you, Justice Nunn. Earlier you talked about the common sense that must prevail with regard to justice. In our system, young offenders are offered options when they reoffend. On the other hand, perhaps too little attention is paid to the victims, and perhaps we at times have too little concern for the protection of citizens when we say that these individuals are still children.
Instead of talking about common sense, in your great wisdom, can you tell us a little about the sense of community?
[English]
Mr. Nunn: You said these people are children. They are children. They are not adults, they do not think like adults and they are not responsible like adults. You have to take it as a fact that they exist and that this is the way they are.
During my time as a judge was when they brought in the notion that the victims would prepare a statement as to their feelings and present it to the court. That may have given the people some comfort from being able to say, "I loved my son and I miss him. His wife misses him and his children are alone. His wife is now on social welfare, " the whole story they give. I am not belittling it, but I do not think it plays any kind of a role in sentencing. It looks good in the newspapers the next day. The judge hears it and reads it. I do not think he adds more time because of the victim.
I do not know how you can deal with the victim in either the Criminal Code or in the Youth Criminal Justice Act, because the victim is a whole new story. You do not judge what you are sentencing by the victim. If a mother is shot and she has one child, you do not take another fellow who shoots another mother who has ten children. Murder is murder, and the sentence is what is prescribed in the code.
I do not know how you can really deal with victims. I am not belittling them. I know their concerns. Heavens, I had people write, fax and email me to say, "Hang the you-know-whats, " and "Throw the act out. Do not recommend anything for the act except get rid of it. " There is a lot of that out in the world.
I think in the long run what you really have to realize and accept is that it is a very good act. It has 200 complicated sections, and it changed the whole world of youth justice.
If you look at the United States, the United States said three strikes and you are out. You are caught with a marijuana cigarette; that is one strike. You are caught again, two months later, with another marijuana cigarette, and that is strike two. Then you are caught again a third time and away you go, and you go to the regular prison and you are there for a while.
I think our system is an excellent one. I thought it needed a little wrinkle, and I recommended the wrinkles that I thought made sense. I think some of them that are now before you are not as desirable.
[Translation]
Senator Dagenais: If I understand what you are saying, convicting is not necessarily good for society?
[English]
Mr. Nunn: No, I am not saying that. I think that sentencing is automatic. It happens that if someone is convicted of the offence you have to sentence them.
I think you have to have confidence in your courts and your justices that they will sentence the person before them appropriately. Two people can commit the same offence and they may have vastly different situations and may deserve, perhaps, vastly different sentences.
Look at the one in the papers in the last while, the kid who had the gun and had a picture of himself in his shorts in the mirror pointing the gun. The police happened to come in for some other reason and they saw him and he was charged. The minimum sentence is three years. One judge said this is a situation where a minimum sentence should not apply: It would be cruel and unusual punishment. It is not the kind of situation that the intention of the act ever was to get at, but I would not want to be that fellow.
The Chair: Thank you, Justice Nunn. That was extremely interesting, and just reinforces the different opinions and the difficulty in finding, as we try to find perfect, or as close to perfect, answers to providing protection for society. It is an elusive goal and a complex issue. There are many opinions, and it depends on the perspective where one comes from, but we certainly respect the effort and dedication you have given to your time on the bench.
For the work we are doing with Bill C-10 — you refer to them as wrinkles — your wrinkles are very evident in Bill C-10 from the fine work you did on your commission, and we commend you for that. Thank you.
We have run over in our time but, as you can gather from the questions, there has been much interest in what you have had to say. On behalf of us all, Justice Nunn, thank you so much for your time here.
Mr. Nunn: Thank you for having me.
The Chair: We are adjourned until 8:30 tomorrow morning.
(The committee adjourned.)