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