Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11 - Evidence, September 27, 2001
OTTAWA, Thursday, September 27, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill C-7, an Act in respect of criminal justice for young persons and
to amend and repeal other Acts, met this day at 10:50 a.m. to give consideration
to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, I see a quorum. We are in session on
Bill C-7. We have before us this morning Minister of Justice Anne McLellan.
Welcome, Minister McLellan.
The Hon. Anne McLellan, Minister of Justice and Attorney General of Canada: Madam
Chair, allow me to begin by expressing my gratitude to you and to all the
members of this committee for the invitation to join you here today. Indeed, I
am pleased to have an opportunity to speak to you about the values and
motivations that underlie Bill C-7, the Youth Criminal Justice Act.
It is always a pleasure to be here. I feel as if I spend more time here than I
do at home. It is always enjoyable coming the Senate because I know that you
always do your homework and that you ask tough questions.
As parliamentarians and senators, it is our responsibility to deal with complex
and difficult issues, issues of great importance such as the well-being of our
nation's youth. That is what the proposed Youth Criminal Justice Act is about.
During your review of this bill, I ask you to remember that four years of hard
work, consultation, revision, refinement and amendment have gone into this bill.
I am happy that this proposed legislation is now before your committee and that
we are one step closer to improving our youth justice system and giving
Canadians what they have been asking for - a fair youth justice system.
My presentation today may seem something of a departure to those who have
followed this issue closely. Yes, I want to provide a clear and detailed
overview of the proposed legislation, and I shall. Yes, I am anxious to respond
to your questions, and I shall. However, I also wish to take direct issue with
those arguments that, in my judgment, rely upon false information and misleading
assertions, arguments that are in truth aimed at advancing political positions
rather than improving the quality of our youth justice laws.
Perhaps the most appropriate place to begin this overview is with the
shortcomings of the existing law, the Young Offenders Act. Some may argue, as I
believe some honourable senators did during debate, that new legislation may not
be needed, that the YOA does not need reform and that, if problems do exist,
they are the result of inappropriate implementation.
This position, I believe, fails to take into account 17 years of experience
under the YOA. It fails to take into account the numerous amendments - some of
them major - that have been made over the years to the YOA. More important, it
fails to take into account exhaustive consultations and reports by the House of
Commons Standing Committee on Justice and Legal Affairs, a cross-country review
that was asked for by my predecessor, the Honourable Allan Rock, as well as the
work of the federal-provincial-territorial task force on youth justice and the
Department of Justice itself.
In talking with police, with victims and with those who work with youth, it
became evident that there was much more we could do to bring fairness to the
youth justice system. A new approach was required.
In drawing this conclusion, permit me to underscore the most frequently cited
weaknesses of the YOA. Our work revealed any number of specific flaws in the
existing legislation, but this morning I will highlight just six for your
First, it fails to distinguish between serious, violent offences and less
serious offences. As a result, there is a visible inconsistency in the
consequences handed out under this system. Violent crimes are sometimes seen as
going insufficiently punished while minor offences can result in relatively
severe sanctions. There is no clear road map.
Next, it fails to keep the minor offenders out of custody. Canada's
incarceration rate is higher than that of most western countries, including the
United States. This is a severe systemic failing.
In order that there is no confusion around this fact, while the U.S. has a
higher incarceration rate of adults, we incarcerate young people at a rate
almost four times higher than the United States of America. We incarcerate young
people in this country at a rate very much higher than some of our European
neighbours, Australia and New Zealand - countries with which we regularly like
to compare ourselves.
You need to ask yourselves why this has happened and what in the YOA has led to
it. You must also ask yourselves the policy question of whether you want to
continue to incarcerate young people in this country at that rate that is
disproportionate even to the rate in the United States of America.
This issue is not a minor one. It speaks to the entire orientation of what
happened under the YOA. This is not what was intended in 1984, but this is what
we have seen. We see this use of incarceration in all provinces across the
country, especially in relation to relatively minor offences.
As a humane society, keeping the UN convention in mind, we must consider the
purpose of incarceration in relation to young people. We have the balance wrong
and we must honestly address that.
Next, the existing legislation fails to recognize the concerns and interests of
victims. Under the Young Offenders Act, there is no specified role for victims
in community-based solutions and no clear obligation to keep victims informed
when extra-judicial sanctions are imposed.
As you know, senators, we are trying to involve the community and the victim,
whether through restorative justice initiatives, community conferencing, or
whatever the case may require. We need to look at how we reorient our criminal
justice system to ensure that all legitimate stakeholders have a voice and are
contributing, especially in relation to young people, to their rehabilitation
and reintegration into the community from which they came and from which, almost
always, the victim comes.
The YOA fails to ensure fair, consistent and clear application of the law. The
Young Offenders Act sees unfair sentencing outcomes. The courts are overburdened
with cases that do not involve serious or violent crimes, thereby hampering
their capacity to focus swiftly. At the same time, the process of transferring
youths to adult court is unclear, overcomplicated and subject to significant
delays. These and other technical but vitally important aspects of the youth
justice system lack clarity and direction.
The existing law fails to ensure effective reintegration of youths after release
from custody. The Young Offenders Act includes no requirement that youth be
supervised following release from custody, or be provided the critical support
structures needed to pave the way for successful reintegration into one's
community as a productive citizen.
Finally, and perhaps most fundamentally, the Young Offenders Act fails to
reflect a coherent and principles-based philosophy toward youth justice. The
principles and objectives underpinning the YOA are unclear and conflicting.
There is little to guide decision makers on core questions, such as the balance
between sanction, rehabilitation and prevention, or the role of extra judicial
processes. In short, the Young Offenders Act is a law that has lost the
confidence of Canadians.
I would like to turn now to what we have proposed with Bill C-7. Before I
summarize the key aspects of the proposed legislation, I would like to take a
moment to review the full extent of the process that has been undertaken to
The challenge, as we understood it from the outset, was not simply to adopt an
improved law but to adopt an improved perspective. This could not be
accomplished in isolation and removed from those affected and confronted with
youth crime in their day-to-day lives. We needed to hear from Canadians.
Following second reading of the bill, which preceded this bill, several months
were dedicated to parliamentary hearings. The result was a wide variety of views
and recommendations. We found the substance of many interventions extremely
compelling; as a consequence, we moved 160 amendments to our own bill.
The proroguing of Parliament intervened before third reading could occur, as we
all remember. Consequently, we introduced yet a third version of the proposed
act, Bill C-7, which integrates all 160 amendments that had been earlier
I recite the history of this proposed legislation in detail for two reasons:
first, to demonstrate the sincerity we have exhibited in our determination to
consult broadly and to show flexibility in drafting this new law; and second, to
remind us all of exactly how long we have been on this road to reform.
The bottom line is that we have taken the time to consult genuinely and to
proceed inclusively. We have reached out, listened and responded. Having said
that, I must say, and you would expect this, we did not agree with everything
that we had heard.
In fact, as you know, if you have examined the testimony, there were a vast
number of submissions that conflicted with one another. That speaks to how
difficult this area of youth justice is for so many people, even for those who
work in the area.
We have built this law from the ground up. We are convinced that this is the
right law, in large part because it has been developed in the right way.
I know that senators are familiar with the individual provisions of Bill C-7, so
I will keep my overview of the bill's provisions succinct, to permit greater
time to explore the questions that you may have. There are, however, eight
specific areas of change that I should like to draw to your attention - eight
specific areas that encapsulate the full measure and scope that we have proposed
in this law. These eight are as follows.
The first area is clarification of the principles guiding youth justice. The
proposed legislation specifies the philosophy and the objectives that should
guide our approach to youth justice. I understand that some senators addressed
this issue in their speeches at second reading, and I will not try to respond to
their concerns. We may talk about that later.
A detailed preamble and set of principles, as found in Bill C-7, make clear that
the youth criminal justice system has three fundamental objectives: to prevent
crime, by targeting the circumstances underlining its causes; to rehabilitate
young people who commit offences and seek to successfully reintegrate them into
our society as respectful and productive citizens; and to ensure that young
people who break the law are subject to meaningful consequences.
Furthermore, the preamble and principles add clarity and direction by explicitly
recognizing the importance of other elements, such as compliance with the UN
Convention on the Rights of the Child. This is the first time that I firmly
believe we have indicated that the UN Convention on the Rights of the Child
forms part of the basis of our thinking in relation to youth justice in this
country. This is an important acknowledgement.
Obviously, Senator Pearson knows so much more about this than I, but, in fact,
this is an important philosophical step for us. This is the first time that we
have formally acknowledged the underlying principles in our youth justice
We also, in the preamble and principle, directly address the interests of
victims, the importance of public education, the needs and varying circumstances
of youth, who are in the process of maturing, and greater rights enhancements.
Next, we distinguish clearly between serious violent and non-violent crimes. The
new law makes the distinction clear between those who commit violent crimes or
seriously reoffend and those whose transgressions are non-violent. This bill
promotes the use of measures that are applied without the intervention of the
courts - so-called extra judicial measures - for all non-violent offences. This
is also a first.
The proposed new legislation will require the people working in the system to
consider measures that do not involve court proceedings before other measures
are contemplated. Alternatives to court that require young offenders to accept
responsibility and repair the harm done to victims, in conjunction with
effective community-based measures such as community service and supervision in
the community, are often more effective than custody, which is often imposed on
young people found guilty of minor offences.
At the same time, the proposed new youth justice legislation targets custodial
sentences when an adolescent commits a serious criminal act involving violence,
or when he or she reoffends. The bill would permit the use of a new intensive
rehabilitative custody and supervision sentence for the most violent, high-risk
youth. When the most serious, violent behaviour occurs, we believe it should be
dealt with fairly and appropriately.
As such, in the case of murder, attempted murder, aggravated sexual assault or a
pattern of serious violent offences, the presumption will be that those 14 and
older will be subject to adult penalties. This presumption can be waived on a
case-by-case basis by the Crown prosecutor or by the young person through their
lawyer; or the young person through their lawyer can make the case to the judge
that an adult sentence would be not appropriate. In the case of the latter, it
would then, obviously, be up to the judge to determine, as he or she does now,
on an application to transfer. Provinces and territories will be able to set the
age of presumption at 15 or 16, if they so desire.
Next, we are confirming meaningful consequences for all offences. The proposed
legislation makes provision for meaningful consequences for all offences, and
permits an enhanced range of options for police, Crown prosecutors and judges in
the legal system.
Moreover, Bill C-7 includes a wide range of sentencing options to deliver
consequences that resonate with our young people and convey an appropriate sense
of responsibility. These include measures such as restitution, compensation and
community service, as well as closer supervision and support in the community.
Often it will be more meaningful for a young person to have to make restitution
to the victim, or do some form of community service, as opposed to serve a few
weeks in a detention facility. This, as I said, has unwittingly led the YOA to
overuse incarceration and to underuse the other possibilities that are
meaningful in the life of young people that could enhance their understanding of
their actions and the resulting consequences, so that they could take
responsibility for their actions and begin to turn their lives around in the
community in which they are found.
Next, we are ensuring clear guidelines and fair sentences. The sentencing
provisions included in Bill C-7 provide greater clarity and coherence than under
the Young Offenders Act. In particular, they are intended to reduce the
disparities and unfairness that occur currently as a consequence of ambiguous
and unclear direction. For example, the new law states clearly that the
punishment imposed on a young person must not be greater than what would be
appropriate for an adult in similar circumstances.
With respect to the transfer of youth to adult court - a process that has
resulted in unfairness, complexity and delay - this process has been eliminated.
All youth will be tried in youth court. I hope all senators understand that this
is an important change. It is a fundamental change in the approach that we are
taking to this youth justice legislation. Under the Young Offenders Act, the
Crown would seek transfer to adult court. The judge had to consider the transfer
application. That decision could be appealed. By the time that appeal had run
its course, it could be up to two years before the young person got before the
court to deal with the substantive offence. We all know that when you are
dealing with young people, time is of the essence. Two years down the road, when
the judge gets around to sentencing a young person who has been found guilty, he
or she has basically forgotten what they have done. Their life has moved on.
Young people say to us, in those circumstances: "Why are you doing this
now? If it was such a big deal, why did you not do it when I did the act? You
are telling me now, two years later, I must serve time in detention? My life has
moved on. If it was such a big deal, why was it not dealt with at the time of
Again, it was not intended that this transfer to adult court would lead to these
kinds of delays. However, that is what has happened in any number of cases. We
want to do away with that approach so that the proceedings are dealt with in
youth court. The judge will hear all of the evidence from the prosecution and
the defence. Then, if an application has been made to seek an adult sentence,
after having heard all the evidence the judge will make that determination.
Honourable senators, I ask you, does it not make more sense to have a judge make
the determination as to whether an adult sentence is appropriate after he or she
has heard all of the evidence and the circumstances of that young person's life,
as opposed to dealing with it on a transfer application where, of course, there
is evidence led, but not the detailed evidence that one has at the trial? One is
not dealing with the substance of the issue before the court in the same way.
We want to do away with these transfers to adult court and we want these matters
dealt with in youth court. If the Crown is seeking an adult sentence, he or she
will only decide if that is appropriate after the merits of the case have been
dealt with and defence counsel has been fully heard.
The next point is the issue of publication of names. This is a very difficult
issue. It is an emotional, complex issue for those who work with young people.
Communities assert the right to know when young people hurt others in their
communities. The media asserts the right to be able to publish names and be in
open courts. Of course, our history is of open courts. The media wishes to be
able to publish that which is heard in that open court.
However, we also know that young people are different from adults - that is why
we have a youth justice system - and that sometimes that publication can have
adverse effects and can be counterproductive in the life of a young person. As
with so many things we do in our lives and in the criminal justice system, it is
a case of balance. It is a case of attempting to acknowledge the legitimate
concerns of communities in terms of their safety, but also the important
principle that young people should be given the opportunity to attempt to make
amends for their wrongs and move on with their lives.
We have taken steps to clarify when and under what circumstances the names of
young offenders can be published. As I have said, this is a sensitive issue.
Accordingly, the new legislation would permit publication of names in the
following circumstances. The first is when a youth receives an adult sentence.
At present, the name is published automatically upon transfer to adult court. We
are recommending that when a youth receives an adult sentence his or her name
would be published. The next circumstance is when a youth is at large and a
danger to others - a matter of common sense. One must find the young person to
either protect him or her and others. The next circumstance is when a youth
receives a youth sentence for what is deemed a presumptive offence, stipulated
as murder, attempted murder, manslaughter, aggravated sexual assault or a
pattern of serious violent crimes.
Next, we are introducing reintegration measures, community supervision and
support following custody. Among the most striking insufficiencies of the Young
Offenders Act is the absence of mandatory provisions for supervising and
supporting the reintegration of offenders into their communities. The new law
addresses this failing directly in two ways. First, it provides that all periods
of custody must be followed by a period of supervision and support within the
community. Second, it includes a provision that requires judges to identify
publicly what portion of the sentence will be served in custody and what portion
will be served in the community. It is hoped that these provisions will go a
great distance in meeting the twin goals of diminishing the incidents of
reoffending and, thereby, promoting the long-term protection of the public.
Keep in mind, honourable senators, although we all talk much about our concern
for young people and the importance of a separate system, that a young person
could leave a detention centre after serving six months or a year and be put out
on the steps of that detention centre with no requirement for any supervision in
that young person's life. We require supervision for adults, because we know how
hard it may be for that person, without support, to reintegrate into their
community. We know how hard it is without support for that young person perhaps
not to go back to drugs, not to go back to the gang from which he or she came.
With young people, of all people, we should be providing that kind of mandatory
supervision and support so that they really have the opportunity, once they
leave the detention facility, to have a shot at not going back to where they
came from and being able to move on and build on that which, one hopes, happened
in the detention centre in terms of skills training, school, psychological
therapy, support, et cetera.
This supervision and support could and should involve families. It will involve
a plan for every young person. There will be a plan developed to help that young
person, in partnership with community agencies, family, school and others, to
ensure that that young person, if he or she wishes to take it up, has the
Next, we are focusing on a more inclusive approach in this legislation. There is
little debate that progress with respect to youth justice will, in the long
term, rely substantially on prevention, early intervention and rehabilitation.
This requires an approach that reaches beyond the strict confines of the
Finally, we are in the business of protecting rights. Bill C-7 ensures that
young persons and victims have rights that must be respected in the youth
justice system. The bill provides that the youth justice system must be separate
from the adult system.
I do not know where this confusion out there has come from in terms of what we
are doing. I hope you can see that what we are trying to do, what we are
enhancing, is ensure that young people are treated as young people; we do not
want them mixed up in the adult system in a way that might be counterproductive
in terms of their long-term rehabilitation and reintegration.
We are providing that the youth justice system must be separate from the adult
system. It must emphasize enhanced procedural protection for young persons to
ensure that they are treated fairly and that their rights, including the right
to privacy, are protected.
Provisions throughout the bill reflect the importance of restraint in the use of
criminal law and the significant liberty interests that are at stake in youth
Unlike the YOA, the bill also sets out specific rights for victims, including
the right to obtain information and participate in proceedings.
Accordingly, Bill C-7 includes a number of important provisions. First, in
distinguishing between violent and non-violent offences, it allows for the
diversion of certain offences to extra judicial measures where deemed
appropriate. There is a presumption that for first-time, non-violent offences,
extra judicial measures will be used. For example, these include informal
warnings on the part of the police, Crown cautions, referral to community
programs and extra-judicial sanctions such as a written apology to the victim.
Second, public education must play a much broader role and specific mention of
this fact is clearly made in the preamble. To this end, we have committed to
pilot projects and secured additional monies for provinces to ensure that their
efforts in this respect are well co-ordinated and well funded.
Third, the proposed new law places substantial focus on the integration of
parents, family and victims into the process of youth justice more fully.
Consequently, the law encourages the use of conferences, of which I know you
have heard much, at numerous stages of the legal process. They are aimed at
including communities, family, educators, police and counsellors to demonstrate
graphically the consequences of their offences on the lives of others and to
offer them guidance in correcting the course of their own lives.
The bottom line is that the complexity of youth crime often involves the
breakdown of family and support structures critical to the development and
maturation of our young people. These structures must be lent our support. These
youths must be given every chance to appreciate the full consequences of
breaking the law and the full promise that comes from respecting the standards
of our communities. The proposed new youth justice act is founded firmly on
these principles. It has been developed with an eye to building not just a
stronger law, but a stronger society and stronger communities.
In summarizing the many aspects of the proposed new Youth Justice Act, I would
say that it represents a new point of departure. It is an opportunity to set
forth on a new course with new solutions. A critical part of that new course is
the implementation of a broader strategy, one that seeks to move beyond the
limits of legislation and lend support to efforts taking place in our community.
This legislation is only one part of our youth justice renewal initiative. To
some extent, it is unfortunate that people have focused so much on this. It is
an important, key component, obviously, key legislation. However, it is one part
of an overall youth justice renewal strategy.
Over the course of the next five years that the proposed legislation is in
force, provinces will receive nearly $1 billion in federal funding. These moneys
will support local implementation efforts, program support for the provinces,
innovative approaches and partnerships with police, educators, mental health
professionals and others. As legislators, it is our responsibility to improve
the law, but as leaders, we must meet a higher standard. That is the full
ambition of the proposed new youth justice legislation, and that is why it marks
not just a new law but also a new beginning.
Having outlined what I submit are the virtues of the proposed legislation, I
would now like to take a moment to address the criticisms most commonly advanced
against it. I would characterize the most notable of these as threefold: that it
is either too tough or, you will hear, not tough enough; that it is too complex;
and finally, that it disrespects provincial jurisdiction. Allow me to address
each of these in order.
First, to those who argue that this new law goes too far or falls too short in
terms of being tough, both arguments misunderstand the full dimension of youth
justice. The best youth justice system is not about how tough it is or how
lenient we need to be, but about how effective and fair it is. If a dose of
tough measures were all that was required to end youth crime, then with our
current high youth incarceration rate one could argue that Canada should be free
of conflict and confrontation. We know it is not the case.
The truth is that to be effective and to generate the outcomes we desire the
judicial system must reflect a mix and a measure every bit as varied as the
complex question of youth crime itself. Part of our obligation, and part of what
I have been trying to do and I hope you try to do as you talk in your
communities about this legislation, is help Canadians understand that the debate
should not be about whether this is too tough or not tough enough. What we must
focus on are some fairly fundamental and basic things. Do we want a separate
youth justice system? Is that important in our society? We as a government have
staked our flag, if you like, on the importance of treating youth differently
and having an effective and fair youth justice system that fits the needs of the
21st century. As such, we have an obligation to help people understand that
effectiveness does not always mean that a young person goes to a detention
facility, that you cannot determine whether you have a fair justice system by
how many kids you put in jail and for how long.
That is a real challenge for all of us. I would ask you as senators to take up
that challenge. You are an important part of the democratic process. We need to
help Canadians understand that this entire area of youth justice, and this
involves much more than this legislation, is not about whether we are tough
enough or whether we are too soft. It is about effectiveness, fairness and our
goals as a society if we believe first and foremost that young people are
different, that they have a chance and that they should be given a chance to
turn their lives around.
In my view, there is no less productive and no more limiting perspective toward
our youth justice initiative, including this legislation, than the question of
toughness. It is an artificial construct, a blatant attempt to politicize the
issue of youth justice.
Second, to the suggestion made by some that this proposed act is too complex,
allow me to point out that numerous amendments were incorporated in Bill C-7 to
respond to this criticism. We have striven to reduce complexity and provide
greater clarity. Having said this, I know that you recognize that dealing with
young people who have come in conflict with the law is no simple matter.
We could have a simple youth justice system. We could have legislation with a
first section that says this is a young offenders act, or whatever we want to
call it, and then we could strip out all the principles we believe in as a
society. We could strip out all the extra-judicial material, which, I agree with
you, adds complexity to this legislation. Some of you probably did not get past
it. It does add complexity, but it is important.
What do you want your youth justice system to be? If you want it to be only
about detention, we can do that quickly, which is, unfortunately, what too much
of the YOA has been about. I do not need to write many sections if that is what
you want youth justice to be about. However, if you want youth justice to
represent the values of Canadians, then we need the extra-judicial measures.
The Chairman: Madam Minister, I think perhaps you might not presuppose
how we are going to react to this bill.
Ms McLellan: The complexity issue is not a simple issue. If you want to
do this and provide the panoply of opportunities for young people, for judges,
for victims and communities, then there will be complexity. That is the point I
want to make. There will be complexity.
Senator Cools: Most of us are quite used to complexity and have an
enormous respect for complexity. I would say that this committee and most
senators are not fazed by complexity. Most of us accept the challenges of hard
Ms McLellan: I appreciate that. There were, however, some concerns
expressed during senators' speeches about the complexity of the legislation. In
respect for senators, I thought it important to directly address that issue
because it came up more than once in the speeches that I reviewed.
Honourable senators, some questioned whether this legislation is respectful of
provincial jurisdiction. I can say that there is unprecedented flexibility for
the provinces in the administration of this bill. The Government of Canada is
confident that Bill C-7 is constitutional. It is a valid exercise of the federal
government's criminal law power and it does comply with our obligations under
the UN Convention on the Rights of the Child. All those matters have been
thoroughly reviewed by our lawyers and by others. We stand behind this
legislation and we will defend it as it proves necessary.
Furthermore, Bill C-7 includes key amendments that specifically respond to
provincial concerns and, when enacted, Bill C-7 will not only allow provinces to
maintain but also to improve their youth justice systems. In summary, the main
arguments that have been brought to bear against the new law, I believe, are too
often without foundation.
In good faith and by good measure, by incorporating some 160 amendments we have
worked hard to reflect the legitimate input of those who have argued for and who
have suggested improvements.
Some assertions have been made about the provisions and the objectives of this
legislation that do not represent a full understanding of what we are trying to
do here. For example, some say that this law is repressive; that it treats youth
as adults. I have already said that this bill eliminates the practice of
transferring youth to adult court. Others have asserted that we failed to
consult broadly when, in fact, years of hearings and federal-provincial hearings
have been open to all. We cannot let these false assertions go unchallenged. We
will not allow unfounded claims to stand without challenge from us, the
Government of Canada.
I welcome debate on this very important issue. I appreciate the fact that this
is such a key component of our justice system. However, the debate must be
undertaken with full information and with all the facts on the table. The debate
must be based on the facts and not on any other possible motivations or
Honourable senators, I know this review is an important undertaking for you. It
has been an important undertaking for this government for the past four years.
Indeed, it has been an important undertaking for Canadians and their governments
since 1984 and earlier when deficiencies were defined in the Juvenile
Delinquents Act that led to the passage of the Young Offenders Act.
No one should be surprised that, as our views of young people and their
responsibilities and opportunities are evolving in a caring society, it would be
necessary to make fundamental changes in the criminal law that applies to them.
That is what we are doing here. This is part of an evolutionary process that
will not end with us; it will continue as long as there are young people who get
in trouble with the law.
The Chairman: Honourable senators, I would point out that we have some
visitors with us today. We have a delegation from the Czech Republic, our
counterparts on their Senate Committee on Legal and Constitutional Affairs.
Members of our committee met with them yesterday and they are here to observe
the minister's presentation this morning. We welcome them to Canada.
Ms McLellan: Let me also introduce Rick Mosley and Catherine Latimer. Ms
Latimer has headed up the Youth Justice Initiative for the past four years and
is fully versed in all aspects of the youth justice system. Mr. Mosley heads up
my Criminal Policy Division and is knowledgeable not only of youth justice but
how that system fits within our larger criminal justice system and how it fits
with the systems of other countries. Both these people are highly skilled and
have worked long and hard with Canadians everywhere to produce the best youth
justice system possible.
Senator Andreychuk: Thank you, Minister McLellan, for coming and giving
us your perspective on this bill. I think some of your comments may have been
directed at me as the critic of this bill. This bill has been a long time in the
making. Before the Young Offenders Act, the changes to the Juvenile Delinquents
Act were some 40 years in the making. We recognize this is a highly difficult
area of legislation. Because we give much latitude to parents to raise their
children and to societies to be different within Canada, it can be difficult to
come to a consensus on how to approach the problem of young people in conflict
with the law.
The complexity of the bill is not the central issue, though perhaps, in
shorthand, I have said that myself. What is complex and difficult is how a child
moves through this system - and we are in fact talking about a child. We have
set an age of 12 here for criminal responsibility, but the issues that lead a
child to be in conflict do not start at age 12. They start almost at birth. The
provincial responsibilities are extremely important because so many of the
social services are provincial responsibilities. Education, social support and
mental support systems both to the parents and the children are services that
must be properly provided by the provinces.
I should like the opportunity, and I am sure that you as minister will comply,
to meet with your department officials to go through this bill page by page. I
will leave the workings of the act for now and talk about policy issues.
You indicated that we will have a youth justice system, as opposed to one court
for all citizens, in order to have a system that is effective and fair for young
people. Why would we put in a system that does not include a tie-in to
resources? I want to start there. I had never before questioned the provincial
motives or your motives or the department's motives. When I sat with Mr. Kaplan
in the 1970s, he assured us that children would not be criminalized; that our
entire idea of youth criminal justice was based on knowing that they could not
handle the full brunt of court; knowing that they were more malleable to
rehabilitation than adults; knowing that we should provide resources to help the
maturation process continue in a more constructive way.
The concern that I would want addressed is whether we have costed out what these
changes will mean practically. During the time that I was a judge and
thereafter, I tracked this very closely with provincial authorities,
non-governmental authorities, caseworkers and judges.
They do not resort to incarceration because they want to or even because they
think the legislation drove them there. They resort to incarceration because it
was the only alternative left after piously hoping something in the community
would work. Consequently, the measures here are credible, but they are two-fold.
First, they are highly complex, if they will work. There are no simple answers
for young children. Second, many of them are within the purview of provinces.
Forgive me for the long introduction to my questions. Has this been costed out
with the provinces? What kinds of programs will be available? Have they been
contemplated? Have they been prepared? Are the provinces onboard, ready and able
to effect the training throughout the entire youth system? Are the resources
sufficient to meet this demand? If they are, you have allayed about 99 per cent
of my fears with this proposed legislation.
Ms McLellan: Your question reflects your deep knowledge of this area. You
have worked in the system. You have put your finger on one of the most important
things that we need to address here, which is the entire question of resources.
Why did the Young Offenders Act not live up to Minister Kaplan's or your
expectations? Why did that happen? I would like to say some things about that.
Just before I do, let me say that your point is important in view of the fact
that a child's life is a continuum. In the criminal justice system, we must draw
lines, and we have drawn a line between 12 and 18. It used to be 16, you will
all remember. However, with the Young Offenders Act in 1984, it went to 18.
Senator Andreychuk: Some had 18.
Ms McLellan: That is right. Some did; others did not. Much of that which
can lead a 12-year-old or a 17-year-old into the youth criminal justice system
happens before the age of 12. That is why we want to work with the provinces
through the national children's agenda. My colleague Jane Stewart worked with
the provinces in the areas of early childhood development, education and fetal
alcohol syndrome, FAS.
You have perhaps heard me at this committee on FAS. So many of the young people
who end up in detention facilities all over this country suffer from some degree
of fetal alcohol syndrome. That is completely preventable. We must get involved
with young women who may become pregnant and tell them they should not be
drinking or doing drugs. When you have numbers coming out of some provincial
youth detention facilities that would indicate that as many as 50 per cent of
the young people in detention suffer from some degree of FAS, that is pretty
shocking. That is why this is a youth justice initiative.
It is not just about this legislation. That is only one part of it. This zeros
in on issues for those who are 12 to 18 in a certain framework. There is so much
more that must be implicated in terms of a youth justice system. The emphasis is
on "justice." That drives us back to root causes of crime and why
young people get in trouble with the law and the work we need to do with the
provinces through the National Children's Agenda, through this legislation and
elsewhere to ensure we are identifying root causes of problems and supporting
families and helping families be able to support their kids.
As Ms Latimer is just reminding me, much of the crime prevention initiative -
for which we just got $145 million new dollars to double it in the next four
years - identifies young people as a priority and targets directly the root
causes of young people getting into trouble with the law.
I thank you for putting that on the record. It is so important. This is a
In terms of resources, as I mentioned, we will be giving the provinces close to
$1 billion over the next five years. In fact, over $200 million of that is new
money that the Minister of Finance targeted for our new youth justice initiative
in his budget two years ago. It is fair to say that you will hear from the
provinces, if you hear from some of them, that there is not enough money. There
is never enough money. We know that. There is so much that one could do in this
area and with adult criminal offending behaviour.
That is, in a sense, not the issue. The question is, is there enough money for
the provinces, either alone or working with us and agencies in the provinces, to
put in place the kinds of initiatives, especially the up-front, extra-judicial
stuff, that is so important to the success of this legislation, and also money
We believe that there is enough money. Would we like more money? Of course we
would. I would like more money for everything I do in my department. However, we
think we have enough money. We are slowly redressing what happened in the late
1980s when the federal government moved from 50-50 cost sharing with the
provinces in the area of youth justice to a lesser amount. We are slowly
rebuilding that. It fell as slow as 27. We are rebuilding it up to close to 40.
By the way, we do not have a full cost estimate from the provinces. However, we
have asked them to work on it, and they are doing that now. They will, as they
develop the initiatives, especially the extra-judicial stuff, get a handle on
what a full cost estimate would look like. I am looking forward to receiving
that from them. As the years go by, I am very hopeful that we will be able to
build and increase the funding that we are able to give to the provinces to
address these issues.
We received $206 million in new dollars. We believe that is enough for the
provinces to either build on existing programs or create new ones to do the
kinds of things we all know are so important.
On the training side, we have special money targeted for training that can be
accessed by provinces, by agencies and by the police. We have special training
sessions for Aboriginal peoples. We know part of the challenge is to train
people, all those who will be in the justice system, so they understand what our
goals are and the tools they have available and when they can use them and not,
depending on their discretion.
That training will be key. It has already begun, because we want people to start
thinking about how we should be looking at this entire initiative in the area of
youth justice, not only the legislation. Training has begun. It will continue.
It is one of the things the provinces talked to me about as late as September
when I was at federal-provincial-territorial justice ministers' meetings.
Senator Andreychuk: I will leave some things for the departmental
officials, particularly on the cost funding and how it will be broken up. The
police have also recently worried about the money.
Much of this bill is premised on our commitment and adherence to the Convention
on the Rights of the Child. We have both signed and ratified the convention;
however, it has not been incorporated into our national law. When can we expect
enabling legislation to ensure that we are in full compliance and are part of
the international convention, not only morally but also practically within our
Ms McLellan: I will let Mr. Mosley respond to that, but I would say that
we incorporate the principles of the convention in everything we do.
As Senator Pearson knows - and she has been instrumental in helping my
department and others in this - we look at what the convention says in terms of
any legislation we put forward that deals with young people or children. Here we
decided to specifically reference the UN convention, for the first time in our
youth criminal justice legislation, to bring home the point that that is an
important document. It puts important principles on the table, and we believe
this legislation is fully compliant with the UN convention.
One of the results of this legislation, once it is implemented, is that the
provinces will save money on the detention side. They will have fewer young
people in detention; therefore those resources can be reinvested. We are hoping
that they will free up those resources and redirect them to the front end, which
is the youth programming. For example, conditional sentences are a controversial
subject. However, through the use of conditional sentencing we have seen a much
lower detention rate in provincial detention facilities. That has freed up
resources that the provinces have been able to use for crime prevention and for
other things in their respective jurisdictions. We anticipate that there will be
freed up dollars for the provinces to use because they will not be detaining as
many youth, and the demands on their detention facilities will be much lower.
Mr. Mosley wishes to say something about the convention.
Mr. Richard G. Mosley, Assistant Deputy Minister, Criminal Law Policy and
Community Justice, Department of Justice Canada: One of our objectives in
starting this process was to get away from the current distribution of funding
from virtually 80 per cent on detention and approximately 20 per cent on
alternatives. We wanted to turn this around so that 80 per cent would be going
towards the alternatives to custody.
The convention on the rights of the child is a convention of general
application. You may have heard recently about the government's intentions to
implement a convention that the United Nations passed recently. In that regard,
we need implementing legislation to conform and comply to that convention, and
In this context, however, the concern is to ensure that our existing statutes
are in conformity with the convention. Thus, we regularly respond to concerns,
questions and criticisms as to whether our statutes of general application are
in conformity with the convention. In this particular instance, as the minister
has noted, this is the first time there has been a deliberate effort to spell
out that adherence to the principles of the convention in our statute relating
to youth justice.
Senator Beaudoin: It is always a pleasure to welcome you to our Legal and
Constitutional Affairs Committee. Bill C-7 raises several points having to do
with constitutional law.
My question is along the same lines as the one raised by Senator Andreychuk. We
have inherited Great Britain's system whereby whenever we sign a treaty, we must
implement it through legislation. It is true that in the preamble you refer to
the United Nations Convention on the Rights of the Child. Do you not think that
we should go a bit further and say that this bill is the implementation of that
extraordinary treaty on the rights of the child? I suggest that this be
mentioned somewhere. It could be in the preamble or in another part of the act.
Since we must enact a piece of legislation to implement a treaty, this is how we
comply with this principle involving constitutional and international laws.
This is not a frequent occurrence, nor, indeed, a strictly mandatory one, but in
light of the scope of this bill, I really wonder whether we ought not mention
it. This is just a preliminary question, before we study the bill. The bill is a
sizeable one. We are used to that; we like it.
Ms McLellan: In terms of what you say about the convention, everything in
this bill has been run against the provisions of the convention. The convention,
as Mr. Mosley has said, deals with principles and rights. We do ensure, whether
we are dealing with a bill such as this or whether it is in other areas, that we
look at the convention and what is there. In a way, there is nothing to
legislate; we have ratified it. Every day we implement that law, when we ensure
and go on the record as saying that our laws reflect the principles and rights
set out in the UN Convention on the Rights of the Child.
Senator Beaudoin: You say that?
Ms McLellan: Yes. I am not sure if the court has been asked, but there is
no jurisprudence that suggests anything we have done in relation to children at
the federal level is in violation of the UN Convention on the Rights of the
That is how we proceed. Whether it is here or in other areas of the law, we take
the general principles and the rights. For example, there is the right to
privacy. The Charter gives that right to young people as well as to adults.
However, it is also in the UN charter. That is why, in this legislation, you see
reflected an acknowledgement of that right, not only because we believe it is a
Charter right but because it is in the UN Convention on the Rights of the Child,
and the right of the child to due process of law.
Senator Beaudoin: I agree with you. That is stated in the fourth area of
the preamble. I congratulate you for that. It is good. We must comply with the
principle of duality because we are also a federation and some provincial law is
involved. Perhaps it might be appropriate to say that it is implementing the
Ms McLellan: On that point, senator, as you know, we can only implement
the convention as it relates to those matters within our jurisdiction. The
provinces will implement it in relation to those matters within their
jurisdiction. I believe I am now able to say that all provinces, including
Alberta - and Senator Pearson knows this, because I believe that she had
discussions with the Province of Alberta, informal and otherwise - have now
subscribed to the principles of the UN Convention on the Rights of the Child.
Senator Beaudoin: Have all the provinces complied?
Ms McLellan: Yes.
Senator Beaudoin: That is my second question. Of course, this is
respectful of the division of powers, because criminal law is a federal matter.
All tribunals have generously interpreted it since Confederation. There is no
When you were talking about cooperation with the provinces, you said, "We
will spend a lot of money," and you have the right to do that. It is the
spending power; therefore, it is all right. However, there will be some
negotiation with the provinces in the field of education, which is a provincial
matter. I do not doubt for a moment that you will respect that entirely. Is
there enough latitude given to the provinces in the bill, or is it very general?
I believe strongly in negotiation between Ottawa and the provinces. It is part
of our federal system. The history of Canada lies there. However, it is not
always easy because some provinces wish to have more centralization and some
others would like to have more decentralization. Those of us who come from
Quebec know that by heart.
Is there enough latitude in this bill for negotiations to take place between
Ottawa and the provinces as to what the provinces may do? Quebec is in a
difficult situation, but it is a province, and they must do the same thing as
the other provinces are doing. In your opinion is there enough latitude?
Ms McLellan: This piece of legislation is a model of flexibility in terms
of giving provinces the opportunity to put in place programs and initiatives
that they think meet the needs of their young people and the communities in
which they live. In fact, we have been criticized by some - and you may hear
this - for providing too much flexibility to the provinces. Like you, senator, I
believe that the federation only works if we are working in partnership and
cooperation with the provinces. That does not mean we always agree.
The basis of the allocation of the funds for programming is in the form of
contribution agreements. You are quite right, senator, those are negotiated with
the provinces. Within our general criminal law power - this legislation being
criminal law - we reflect, for example, in the extrajudicial components some of
the things that we would want to see available for judges, police, young people
and victims themselves. Provinces are at different stages regarding the
provision of those services. We want to put the emphasis on that which is
non-judicial. We all understand that, right? You go to court, there are lawyers
and there is sometimes detention. However, even within that system, we will
provide the provinces with money to be able to do a better job of therapeutic
intervention and rehabilitation, especially of the most serious offenders while
they are in detention.
Most of the provinces have identified that that is a new cost for them.
Therefore, we have earmarked special dollars to help them begin to develop those
programs as we move forward with this legislation.
It is a matter of negotiation. There are contribution agreements. The provinces
know that in the past 80 per cent of our dollars went to those provinces that
put an emphasis on detention. We want to change that. That is why you will see
provinces such as Quebec start to receive proportionately more money. This will
apply to provinces like my own, which is Alberta, which has done a lot in the
area of extrajudicial, community-based justice. Quebec is the most notable of
the provinces in that it has experience with this extrajudicial area. Their
dollars will increase, too.
We are sending a message, senator, that we do not want all of our dollars spent
on warehousing young people as they have been in the past. We want people to
think more creatively about extrajudicial measures that will help young people
who commit less violent crimes and who would be better served in the community.
We are working very hard with the provinces to ensure that they have that
flexibility. However, within that basic philosophical framework, we have spent
too much money on simple detention in the past and not enough on other means of
support for young people in the communities.
Senator Nolin: Madam Minister, it is always a pleasure for us to welcome
you here. For the moment, I am going to limit my remarks to a single aspect of
the bill, and afterwards take part in the second round of questions. I see that
time is passing very quickly, but in any case, Madam Minister, would it be
possible for you to come back some other time?
It is always possible that when the committee is hearing from witnesses that
policy questions arise. It is always good to know in advance that the minister
can come back to address those policy questions.
Ms McLellan: Certainly, if there are those clarifications at the end of
your time with the witnesses, I can return.
Senator Nolin: As I said before, I will only be commenting one aspect of
the bill, which is making information available to the public. In your
preliminary remarks, you mentioned Canadians' loss of confidence in the youth
criminal justice administration system. In the third whereas of the preamble,
you refer to the right of Canadians to have access to objective information.
Do you believe Canadians really have access to objective information that allows
them to assess the effectiveness of the youth criminal justice system?
Ms McLellan: I hope my friends in the media do not take this the wrong
Senator Nolin: It is probably not they who are the problem.
Ms McLellan: I think it is fair to say that most Canadians get their
impression of the justice system - whether it is the youth justice system or the
larger justice system - from what they read in the papers or see on television
or hear on radio. Most Canadians, thankfully, do not come into personal contact
with the criminal justice system where they or members of their family have been
victims or where they have been hurt or they have a young person who has broken
the law. We can all say thank goodness for that.
The impressions of the public are, as in so many areas, shaped and moulded by
what they read in the papers. Do you call that objective, senator? Honestly, I
do not know.
I do not know how many Canadians pay attention to StatsCan and to the judicial
institute who put out numbers in terms of what is happening. What we know is
that while youth justice has declined slightly, violent youth crime has not.
That should be troubling to all of us. Why are young people committing violent
crimes? The degree of violence is greater than we have seen in the past. That is
a troubling question for all of us.
This year, violent youth crimes went up 2 per cent. Those numbers are out there.
What proportion of the public pays attention? I do not know. If my colleague,
the Attorney General of Ontario appears before you, he will put in front of you
a number that many people in Ontario know and use and which many Canadians have
seized upon. That is to say that over the past 20 years, youth crime has
increased 100 per cent. If you look at the number in that window, then it is
alarming. If that were the only number you ever saw, you would be very alarmed
and ask yourself, "What is happening with our young people and our families
and what is happening in our communities?"
We take heart and hope from the fact that over the past seven or eight years
youth crime has declined slightly. It has basically flatlined. In the area of
violent youth crime, we do seem to see some troubling things that we will need
How many people pay attention to that? That is objective data. How many people
pay attention to it, senator? I do not know.
Senator Nolin: That is precisely the point I want to debate with you. It
should not be necessary to include a whereas in a preamble to have a government
attempt by all possible means to make objective information available to the
You referred to statistics from the Canadian Centre for Justice Statistics.
According to the figures I consulted, one may conclude that there is in Canada a
decrease in juvenile criminality. In 1996 there was a decrease of 3.2 per cent
in the number of criminal charges laid for violent offences, and in 1997, there
was a further decrease of 2 per cent.
It is true, however, that there is an increase in drug-related offences. Some
may say that some of these are not violent offences. However, in other cases
very violent crimes are committed. As you noted quite rightly, this information
is available on an annual basis. Often, it does not find its way into the
headlines, nor onto the front pages, certainly.
Is it not the government's - any government's - duty to make objective
information available to Canadians, using all possible means to do so? Why do we
need a whereas in a bill to impose that responsibility? Should that not be a
government's daily responsibility, to ensure that all Canadians can feel
confident in a system that seems to produce results?
Ms McLellan: I take your point, and I agree that it is the obligation of
all of us. That is why I called upon all Parliamentarians earlier to help inform
the public about what is happening in our society in respect of crime and, in
particular, to youth crime because we are dealing with young people. We have
devoted millions of dollars, as this initiative moves forward to what we call
"public education." That will help the public to understand that the
big headline in the newspaper about a tragedy is not the only element they need
to know about youth justice and what is happening with young people in Canada.
We are also trying to educate people about the fact that you should not equate
success in the youth justice system with the number of times that someone goes
to detention. That is why, for example, in our crime prevention program we spend
quite a bit of time helping communities understand. There are great programs
happening in communities to keep young people out of trouble. Would it not be
nice if we all did more of this, as opposed to focussing on the headline that
says, "Young person beats Mr. X to death." I am not suggesting that
the headline is not important public information, but there is so much more
happening in our society that is positive in keeping young people out of
trouble, or in finding new ways to help them if they do get in trouble. That is
the obligation of all of us - every concerned citizen and everyone who cares
about young people. We are putting resources into that, and we will continue to
Senator, as you know, sometimes it is an effort to get people to listen and to
see beyond the headlines so that they can understand this complex area, that
young people are complex and that the solutions are not simple; it is often akin
to beating your head against that wall. We all know that, as Parliamentarians.
However, we cannot stop making the effort; we must help Canadians understand
that youth justice is about more than putting kids in jail. Too often, Canadians
define the success of the system by whether someone goes to jail and for how
long they go to jail.
We included this to remind all of us that we have an obligation to help
Canadians who are concerned about the safety and security of their families and
communities. We have an obligation to help them understand that this is a
complex issue that goes beyond detention statistics.
Senator Nolin: Madam Chair, I hope that we will be able to have the
minister back at another time. I have questions to ask concerning principles
raised in the bill, funding, and sharing and exchanging information with the
The Chairman: I am glad the minister has committed to return. Our time is
limited today and we have additional questions.
Senator Fraser: Madam Minister, I am particularly concerned by the
provisions about publication of the names of young persons. I spent my life as a
journalist before I came here, and I am in favour of open courts. I understand
the fundamental principles of the protection of society with which the judicial
process must deal. However, we have accepted as equally fundamental, the
principle that young people are different and that they need protection. I note
that even the UN convention says that a young person's privacy shall be fully
respected at all stages of the criminal proceedings.
I can understand, perhaps, the provision that a young offender's name is
publishable if that individual is actually a danger to society and is on the
run. How are they to be found if they are not identified?
However, in other cases, what public good is served by publishing the name of a
youth - and in some jurisdictions it will be name of a 14-year-old child, who
has committed an offence - when the entire principle of this bill reflects your
conviction, and certainly my conviction, that what we try to do is rehabilitate
that 14-year-old child? If we publish the 14-year-old's name, he or she can
never again escape the stigma that will be attached. It might even be
counter-productive at first, because we know that 14-year-olds tend to think
that there is no such thing as bad publicity. Some of us know better.
It even seems to make a mockery of the provision that their records shall be
kept private. I do not understand what earthly, public good this serves.
Ms McLellan: Keep in mind, senator, that youth justice legislation in
Canada has always had public information provisions, so this is not new.
Senator Fraser: However, the whole bill is new, so why can we not fix
Ms McLellan: Publication, in certain instances, is the right balance to
strike. In fact, when the UN convention speaks to the right to privacy, it is
the same issue that we experience under the Charter of Rights and Freedoms. That
does not mean that the right of privacy is self-defining and that no
identification of any young person will ever take place. That is not what it
means. We believe that this legislation is fully compliant with the right of
privacy as set out in the UN convention.
Having said that, as I said earlier, it is a case of striking a balance in a
democratic society. We acknowledge that young people are different, but we also
acknowledge that in limited circumstances, where there has been grievous harm
done, there is an interest in the community in knowing what has happened so that
the community can begin to heal.
You will hear from some victims' rights organizations, and I would ask you to
listen to them and to not discount what they say about the importance,
especially in situations of grievous harm, of events that have taken place. We
are all aware of situations of grievous harm, where one receives an adult
sentence and, at present, where one is transferred to adult court. Part and
parcel of that acknowledgement, in a civil society, is that your name will be
Senator Fraser: At the age of 14?
Ms McLellan: Yes.
Senator Fraser: I do not follow that reasoning, minister. I do not
understand that, but I understand that it is vital for society to be persuaded
that justice has been served.
Ms McLellan: They must also see it being done.
Senator Fraser: I do not understand that that should automatically occur.
It is very sweeping.
Ms McLellan: No, in fact, this is very narrow.
Senator Fraser: It does not seem narrow to me.
Ms McLellan: I am sure that some of the organizations that come before
you will tell you that they would prefer to see a much broader publication
possibility. We tried to strike the balance.
In fact, the change from the existing law is minimal. In presumptive categories,
if one gets an adult sentence or a youth sentence, there will be publication.
However, the young person, in relation to the youth sentence, has the
opportunity to convince the court that the publication should not take place.
There is judicial discretion.
Senator Fraser: Would it have been contrary to all your principles to put
it the other way around, with the burden put on those who seek publication?
Ms McLellan: As I say, there are different approaches one could take. We
are trying to strike a balance. We should not underestimate the deep concern
that exists within society. More than the substantive offences themselves for
which we create a presumption, the area that Canadians feel the most visceral
about - and we, as Parliamentarians, must respect how they feel - is in the area
of their right to know as a civil community. I have tried to explain to them the
limitations that we have put in this bill and why they are there and the fact
that rehabilitation and reintegration into society are also important values in
I think we have struck the right balance. I understand that there are those on
both sides of this discussion who feel that we have not. However, this is a
small and incremental change to the existing law.
Senator Pearson: My question has two parts and relates to youth
engagement. I have participated in a number of the consultations that have been
organized by the Department of Justice in which children have been happily
integrated. Many of them have been there and spoken about their experiences.
First, it is extremely important that young people know the law. Much of the
flippancy that the public attributes to young people is not flippancy, but
simply a lack of understanding of what the law is about. I am hoping that some
of the money that you have been talking about for public awareness, with which I
agree, there will be a focus on informing young people about the law. That is
the first part of my question.
Second, the convention, where young people have a right to take part in
proceedings and regulations and so on concerning them, is well covered in the
actual due process. However, even behind that, in the formulation of this
legislation, was there any attempt to reach out to young people to get some
opinion from them about what would work and what would not work for them?
Ms McLellan: To your last point, yes, absolutely. I attended a session
where my department brought together a large number of young people from across
the country - individual young people as well as young people who work in
various youth organizations that exist in cities like Montreal and elsewhere and
who, on a daily basis, are helping each other.
Ms Latimer can talk more about that if you would like to hear about that now, or
maybe at another time. However, we have made a real effort to hear from young
We also had a special session dealing with Aboriginal communities and Aboriginal
young people, because they, of course, have so many of their number in detention
all across the country.
We wanted to ensure that we heard from young people about their attitudes: what
works, what does not, why they get in trouble, what will keep them out of
trouble, and what will keep them out of trouble after they get into trouble? We
talked to them about issues like publication and why young people do some of the
acts of violence that we all see and read about.
When Ms Latimer and Mr. Mosley and others return, I know they would be happy to
talk to you about that. It is an important part of what they do. Yes, there are
resources to help young people. It is always a question of how you get to them.
That is one of the things we want to talk to young people about: What is the
best way to get to you to let you know what the law is?
We can reach them through schools and through families, although it must be a
multifaceted approach. Schools are key to all of this, as well as youth
organizations and groups, boys' and girls' clubs and other organizations where
young people believe that these people are not just adults preaching to them but
that their own organizations that have credibility with them. We will spend some
considerable time reaching down into the communities of young people to ensure
they know what the law is.
Senator Prud'homme: I certainly recalled, as I listened to your
presentation, that I am a Quebec senator in Ottawa. Needless to say, I am not
here to carry out the instructions of any Quebec political party, and that
includes those who are attempting to pressure us to commit to voting against
this bill. None of that impresses me much, I am too old for that.
My question is very simple. The Government of Quebec, which is most opposed -
- as they would say in English, adamantly opposed to this project and
unanimously opposed to the project -
- have they misunderstood the bill? Did they refuse to take an active part, with
their officials, in the work that led to the drafting of this bill? If they did
participate, what was the result of that? And if not, why not?
Ms McLellan: We have had, until a certain point, many discussions with
Quebec officials. In fact, Quebec officials were very forthcoming in helping us
understand their concerns and how we could accommodate some of those concerns. I
think some of their concerns are reflected here. Not all concerns are reflected
here. If the Attorney General of Ontario comes here, he will tell you a story
very different from than that which you would hear from Quebec in terms of this
In fact, in most things we do, we have a very good, pragmatic working
relationship with officials in the Quebec government in the justice area. Having
said that, are there concerns? Of course there are and we are all aware of it.
However, my task is to keep reassuring that there is nothing in this legislation
that will prevent the Government of Quebec and the agencies that exist in the
province from doing the work they are doing now, and I always make the point
that we will even give them more money to do it.
I respect their concern as to whether this will force them to change some of the
good things that they believe, rightly, that they have been doing. The answer is
no. In fact, much of this approach will point the rest of the country to some of
the good things that the Government of Quebec has been doing.
Is any province's system perfect? No. In fact, we do hear from the front line
workers in all provinces, including Quebec, where they say because resources
have been cut and because of other decisions made at one level of government or
another, they are not able to do the things they should be doing.
We can all do a better job, but I want to reassure you and others that because
of the flexibility this legislation gives to the Governor-in-Council in Quebec,
in one case, and the Attorney General in other cases, they can proceed to do
that which they have been doing. I will continue to make that case.
Senator Nolin: Madam Minister, if we eliminate the partisanship that is
inherent in federal-provincial relations, the facts speak for themselves.
As opposed to Ontario, the juvenile criminality rate in Quebec is inferior to
its proportion of the Canadian population. Some things are certainly being done
right in Quebec under the existing act, and it would be worthwhile for the other
provinces to adopt these approaches, without disrupting the whole process. We
will, in fact, be hearing from Justice Jasmin, who has carried out a
comprehensive analysis of the current system.
I presume that my colleagues from the other provinces must be wondering what
Quebec is doing that is so different that it results in a youth criminality rate
that is lower than that of Ontario. I would not go so far as to say that it is
double in Ontario, proportionally speaking, but it is very close to 50 per cent.
Do you see Quebec's concern?
Ms McLellan: First, we have to be careful. The numbers we talk about in
the statistics are charges. They are not the rate of youth crime. They are the
charges laid. In fact, Quebec - to its credit - has diverted many young people
who have committed minor offences out of the formal justice system even before a
charge is laid. Keep in mind that the numbers are charges.
Senator Nolin: I agree with you, but originally, at the beginning of the
process, extrajudicial measures produced positive results. Why involve the
courts and the justice system if by using diversion measures right from the
beginning, you can promote social rehabilitation?
Ms McLellan: Keep in mind that in spite of that, every province in this
country uses incarceration at rates higher than other countries with which we
would like to compare ourselves. That is wrong, and we must consider why we use
incarceration. What is the underlying philosophy in the province of Quebec or
B.C. or wherever? Incarceration is used too much? It is the unintended effect of
the YOA, and we must change that.
Having said that, I will take the point, and I applaud the Government of Quebec
for doing the best it can within the orientation of the Young Offenders Act. We
need to, in some cases, do more of that which Quebec is doing at the front end,
but we all need to look at why we use incarceration as a tool in so many cases,
and that includes Quebec.
Looking at the numbers of people who are transferred from the youth system to
the adult system, Quebec in a number of years is number one in terms of using a
transfer to adult court. It was, I believe, third in the country last year.
Maybe that is a good thing. That is a provincial discretion, and under the
existing system, the attorney general and prosecutors will decide whether
someone will elevate to adult court. In the new system, it will be to seek an
adult sentence. However, in comparison to other provinces, the province of
Quebec uses the adult system to deal with young people quite frequently.
I am not questioning that, because that is its right. However, we need to
understand all the things that are happening and how each province does use the
existing legislation and the existing system. I have an official who is an
expert in the Quebec youth justice system. She has met with many who work in the
system, many who have expressed concerns about our legislation, and, certainly,
from her perspective, she will be able to engage you directly on some of these
Senator Cools: I have been listening with some care to the minister's
presentation. I feel compelled to say that I think the minister is a little
severe in her judgment of Canadians and their concerns about youth violence and
I believe that the concern of most Canadians is at least as valid as ours here,
and we can all agree that the concern with problems is not the real issue. It is
the approaches, the managing of problems and responding to problems. I say this
as a person who has had considerable experience working as a youth worker in
previous incarnations of my life.
As a matter of fact, when I was on the parole board, I remember reading a
person's case very closely. He was then an older man, but as a young person he
had been transferred to the adult system and had been sentenced to be hanged -
or whatever it was; they executed people in those days - and I think if we can
even begin to get some insights into the nature of the offences that lead courts
in those directions, we may do a service. This particular case is a very tragic
case, but this individual's first acts of violence occurred when he was about
three years old, and, of course, it was one of those cases that had been
commuted to life imprisonment. There is a fair body of experience around this
I have been listening with care, as I said. So far, very little has been put on
the record here or in the chamber that allows us to form conclusions in respect
of this bill. I have been having difficulty gleaning what I would consider to be
policy foundations and the very reasons for this bill, just as I have been
having difficulty putting faces on some of these people. My concern was
confirmed when the minister, told us that violent youth crime is on the
Perhaps the minister could give us a portrait or profile of these people. Let us
put some faces on these people. Perhaps the minister can tell us how many young
offenders there really are across the country, the number and kinds of violent
offences - for example, the number of murders. Perhaps we could get some
information about the number of repeaters - I think the word that the system
uses, at least, in the adult system, is recidivism - the social and ethnic
complexions and factors around it.
It seems to me, Madam Minister, that the committee should have a very solid
factual basis of the justifications and the reasons you have used to bring
forward the initiative. It would be nice to know that the changes you are
proposing are needed in the community and that they have been provoked by the
I say that to you, minister, because you suggested that many concerns are
ill-founded but I will give you an example. Thousands of cars around this
country are stolen per day. In Ottawa alone - which is a comparatively small
town - 50 cars are stolen on a daily basis. These thefts are treated as very
routine, so the police do not even go out to the place where the car was stolen
any more. It is all treated as a matter of fact. I am told that most of these
cars are stolen by young people - there is a word for it, joyriding - and that
very few charges result from this. They just find the car elsewhere.
The 50 people who, today, will have their cars stolen have been affected by
crime. Yet very few of those youth will ever be charged. Could you assist us to
put a face on these young offenders that we are talking about?
The Chairman: Before the minister answers, I want to point out to the
senators that we will hear statistical evidence on crime.
Senator Cools: It would be nice if the minister could tell us how the
data moves into policy.
Ms McLellan: We can put together statistics for you, but I will not go
through them today. We can go back 20 years or to give you a fair view of where
this began and where it has gone. We can look at the numbers for 20 years out,
40 years out, last year - whatever you feel would give you a good picture of
where we have been over a significant period of time. We could look at a
generation or two of young people; we can show the types of crimes they now
commit, along with other demographic data.
Senator Cools asked what young offenders look like. The one thing I will say is
that too many of them are Aboriginals. That is one thing I will say here today
categorically. Also, too many come from families where there is addiction or
abuse. Too many of them were born with either FAS or FAE. Those are just quick
visual images. There are many others. Some young offenders come from
middle-class families and commit what would seem to us absolutely senseless,
brutal crimes. Those are my first impressions when I think about young
Our statistical overview will probably be similar to your other input because
the Canadian Centre pulls all these statistics together for Justice Statistics.
They are the authoritative source. I would recommend that you not use others'
Senator Cools: I was looking for more than just data. Data is available
to us. I am trying to comprehend how the data affects the whole phenomenon of
this proposed legislation.
Let me take another shot at it. Page 5 of the bill has a novel definition of a
young person. You seem to be creating a new category of - for lack of a better
word - criminal, who is younger than the traditional age of criminal
responsibility. It states:
"young person" means a person who is or, in the absence of evidence to
the contrary, appears to be twelve years old or older, but less than eighteen
years old and, if the context requires, includes any person who is charged under
this Act with having committed an offence while he or she was a young person or
who is found guilty of an offence under this Act.
Make no mistake; that is a new sort of criminal category that you have created.
It matters not what euphemism you use. How does your data, which this committee
hopes to receive, influence such a clause in this bill?
Ms McLellan: Our strategy documents show the philosophical underpinnings
for why we are doing what we are doing. We will ensure that everyone receives
that document because that is where we talk about why and how we are doing this.
Regarding the definition let me assure everyone here that this is not a new
category. This is the same definition that existed in the Young Offenders Act in
terms of the age and so on. The term being defined used to be "young
offender" and we took out the word "offender" because we were
offended by that. In fact, until one is found guilty, one is not a young
"offender." We have used the language of "young person." The
bill deals with those who are aged 12 to 18. That is the definition under the
existing law. It will continue to be the definition.
Senator Cools: My question remains. How is your information moving to -
Ms McLellan: We will make sure you get the strategy document. Then if you
have questions when I come back, we can return to this.
Senator Cools: We shall return to it.
The Chairman: I have a question to which perhaps you or your official can
respond to in writing. I am concerned about the constitutionality of clause
146(6) where it appears that a technical irregularity can abrogate the inherent
Charter protections of a young person.
Ms McLellan: We have reviewed that provision closely and we will provide
you with our full rationale in writing.
Senator Gustafson: I am not a member of this committee but I am
interested in your presentation. My concern is the education of the general
public in regards to what is happening in our society with deterrence and
rehabilitation. I come from a farming background. I also have run a construction
business. I have had the experience of hiring young people aged 16 and younger
who have not had a fair chance in life. I have found that if you give them a
chance, they will make mistakes and they will still get into some trouble, but
they will come out all right.
I am not sure that legislation alone will solve this problem. Education and
understanding are needed by the general public. Coming down with a hard fist and
jailing these children will not resolve things. I had three experiences of
having a youth steal my car or doing something similar. Such youth often come
from homes where alcohol was abused. They have never had a chance in life. I
even went to the Mounties in some cases and asked them to take it easy and to
let me deal with the kids.
Amazingly, they turned out well. One of those young fellows could not find a
house to rent after he got married because no one trusted him. I am not trying
to be the good guy here, but I rented him a house and he paid his rent as
faithfully as he could. These kids need to be given a chance in our society.
There are root causes for their problems. Leaning on tough legislation alone
will not solve the problem.
Ms McLellan: Senator, that is why you should be supporting our
legislation and what we are doing. This legislation will ensure that many of
those kids of whom you speak will be diverted out of the formal justice system
and into the hands of people like you, in the communities, who care about them
and will give them a chance.
Senator Gustafson: How do we educate the general public to the reality of
what must be done if we are to change it over time?
Ms McLellan: It is a huge challenge, as Senator Nolin has said. That is a
challenge and an obligation on the part of us all, including the media and those
who work with victims in our communities, to help the public understand that
even though sometimes bad things are done - sometimes very bad things - however
we must always understand the context, of the community, larger society and the
life of that young person. Without that, we will not be able to develop a youth
justice system in this country that actually does what we want it to do, which
is prevent crime, rehabilitate and reintegrate and provide meaningful
consequences for those who hurt others.
Senator Gustafson: I was brought up in an era when all work and no play
made Jack a dull boy. It seems that we have moved into an era where all play and
no work has caused some severe problems. Good government should look at areas
where our society can be helped. I am now talking about minimum wage and other
things that can be helpful. In some cases today, people who might employ and
help young people who are hurting are fearful of doing so for fear they will get
themselves into trouble doing that. There are always problems and risk in life.
We need to be looking at legislation that will allow our public the opportunity
to be educated to the point where we can help.
Ms McLellan: This legislation will do that. We can maybe talk more about
that either with my officials or when I return.
The Chairman: On that note, that is a good spot to close. Madam Minister,
thank you for offering to come back. We will have you back.
The committee adjourned.