Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 11 - Evidence, October 4, 2001

OTTAWA, Thursday, October 4, 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 at 10:50 a.m. this date to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: I welcome senators and our witnesses to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. Today is our third day of hearings on Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other acts. This bill is more commonly known as the Youth Criminal Justice Act. If passed, it will replace the Young Offenders Act as the law governing Canada's youth justice system.

For the benefit of those who are our guests or who may be watching eventually on television, our hearings on this act began on September 28 when Minister of Justice Anne McLellan and her staff were here to provide an overview and to answer some broad questions about the bill. Yesterday we heard from representatives of victims' groups and saw a short brief from Statistics Canada about the trends and characteristics of youth crime.

Today we have before us two very important groups that are essential to a thorough review of this bill, the Canadian Bar Association and the Barreau du Québec.

Before beginning, for the personal interest viewers and the guests in the room, I want to take a moment to give you some historical information about the room in which we are meeting today. Even some witnesses who have been here before may not know this. This building, the East Block of Parliament Hill, was built between 1859 and 1866, and it gives us the best idea of how the Parliament buildings looked at the time of Confederation. Until 1976, this building was the centre of executive government in Canada, with the Governor General's office, the Privy Council Office, which is the cabinet meeting room, and the Prime Minister's Office all located here, right up until the tenure of Prime Minister Trudeau. This room was originally used by the Department of the Secretary of State for Canada, and it later formed a whole warren of little offices which came under the Department of External Affairs. The room took on its current appearance when it was renovated for the first G-7 summit that was held here in 1981. It now serves as this committee's regular meeting room.

With that preamble, I will turn the floor over to our witnesses.

[Translation]

Mr. Francis Gervais, Lawyer, Barreau du Québec (Quebec Bar): Madam Chair, distinguished members of the Standing Senate Committee on Legal and Constitutional Affairs, the Barreau du Québec thanks you for giving us this opportunity to appear before you today and to put forward the position of the 19,000 lawyers of the Province of Quebec.

We shall be sharing our concerns with you with regard to Bill C-7, an Act in respect of criminal justice for young persons. Allow me, first, to introduce the people who are here with me. To my right, Ms Carole Brosseau, a lawyer with the Research and Legislation Service. She has been following the file from the beginning of the various consultations we will be referring to later. We are also accompanied by Ms Julie Delaney, an intern at the Barreau du Québec. She has participated in the work on this file, but has expressed the wish that you not ask her too many questions. You will understand that she is in training, and we are happy to have her with us here this morning. Ms Brosseau will reply to the main questions. She has an in-depth knowledge of the file.

As you can see, we recently sent along a summary of the Barreau du Québec brief on Bill C-7. In light of the importance of this piece of legislation it appeared essential to us to send you a complete analysis. Thus, a document was sent to you this morning or toward the end of the day yesterday. As you will be able to see, the first part of that brief outlines our position on the bill as a whole and the second part puts forward more specific comments on certain clauses.

This brief was inspired in large measure by our presentation to the Standing Committee on Justice and Human Rights with regard to Bill C-7, in which we proposed many amendments to Bill C-3. In spite of our representations, those amendments were not included in Bill C-7, currently under study.

As an aside, when we made our representations, it seems that the Minister of Justice misunderstood them. I was appointed president of the bar, and on May 29, 2001, newspapers quoted the Minister of Justice as saying that the Barreau du Québec was satisfied with the changes made to the law. It is true that the letter my predecessor sent to the minister mentioned on the first page that we were satisfied with the amendments. But on the second page - and this is a bit of a summary of what we have to say today - we maintained, in spite of what she had done, that there was still a great deal of ground to be covered and that we were not satisfied with the bill overall.

The bill proposes an overall reform of the criminal justice system for young persons which will have an important impact on the administration of criminal justice as it applies to adolescents, a particular reality in Quebec. One has only to look at the various press clippings. In September when she appeared before you the minister is reputed to have said that she recognized the particular situation in Quebec. Allow me to quote an excerpt from the Montreal Gazette of last September 28 where the minister is quoted as saying, before the Standing Senate Committee on Legal and Constitutional Affairs:

[English]

Quebec resorts less to jailing young people than other provinces.

[Translation]

In point of fact, I think that in fact this theme is present throughout our brief.

Before noting all of the interventions of the Barreau in the file involving young offenders, allow me to remind you that the first mission of the Barreau du Québec is to ensure the protection of the public. This is a duty imposed on us by law. This government as well as most provincial governments, has always recognized that the Barreau and the law societies are institutions that play an essential role in protecting the values of a free and democratic society such as our own. From that perspective, the Barreau du Québec seeks, inter alia, to promote a balance between individual rights and freedoms and the powers of the government.

The Barreau is guided by this mission when it must determine its positions by carrying out detailed analyses of all bills that affect the rights of citizens, and it does so with the objective of furthering a just and safe society. That was our perspective when we examined the legislative provisions concerning the Young Offenders Act and the new provisions to be introduced in the Act in respect of criminal justice for young persons.

To say a few words about the background of this file, as early as July 21 1989, the federal Minister of Justice launched the process with a consultation document entitled: "Young Offenders Act, Proposed Amendments". Shortly thereafter, the department introduced Bill C-58, which contained amendments involving referrals affective the usual jurisdiction for adolescents who commit offences, extending custody provisions, and parole. The Barreau du Québec had at that time produced a brief on the bill.

In July 1991, the federal Minister of Justice continued her consultation process with a document entitled: "Consultation document on the custody and review of provisions of the Young Offenders Act." The Barreau du Québec then produced a brief entitled: "An Act to Amend the Young Offenders Act and the Criminal Code." In August 1992, the department submitted four working documents for reflection, entitled: "Draft document on custody, review provisions, and rehabilitation," "Receivability of statements made by young persons and persons in authority," "Provisions relating to records," and "Various Issues."

In February 1993, the Barreau du Québec responded once again by producing a brief entitled: "The Young Offenders Act."

On June 1994 the Minister of Justice and Attorney General, Mr. Allan Rock, tabled Bill C-37, an Act to amend the Young Offenders Act and the Criminal Code. In September of the same year, the Barreau du Québec submitted a brief. Already, the Barreau du Québec perceived that in fact Bill C-37 was a response to pressure exercised by certain citizens who wanted to increase their protection by demanding a more effective response to serious crimes. This is once again the leitmotif of the current bill.

At that time the Barreau du Québec encouraged the Standing Committee on Justice and Legal Affairs to adopt and promote within the law an orientation that would make it possible to achieve a fair balance between the needs of the young person, in order to facilitate his or her rehabilitation and social reintegration, on the one hand, and, on the other, the protection of society.

In 1995, the Barreau du Québec once again responded to the invitation of the Minister of Justice and Attorney General of Canada by commenting the in-depth review of the law that led to the 13th report of the Standing Committee on Justice and Legal Affairs tabled on April 27, 1997, entitled: "Youth Justice Renewal."

In its brief, the Barreau du Québec stated that reintegration remained a key element, and whatever the repressive measures introduced to control young people, we would never be able to completely eliminate extreme, odious cases. We would not like to see an act that was only designed to address those cases.

In April 1997, following this report, the Minister and Attorney General of Canada, Ms Anne McLellan, tabled her Youth Justice Renewal Strategy, developed following the 13th report of the Standing Committee on Justice and Legal Affairs.

The Barreau responded to this strategy by reaffirming in an important brief that youth policies must further the reintegration of young persons into society rather than their exclusion. The Barreau du Québec stated that psychological problems and exposure to violence and poverty were factors that led young offenders to have dealings with the criminal justice system.

In 1999, the Minister of Justice and Attorney General tabled Bill C-68, the content of which was almost entirely contained in Bill C-3, an Act in respect of criminal justice for young persons and to amend and repeal other Acts. The Barreau du Québec tabled a lengthy brief in response to that bill.

In that case as well, the Barreau du Québec reaffirmed its belief that in a society such as ours, lawmakers must seek to balance the protection of society and the young person's right to be dealt with in accordance with his or her capacity for development and maturity.

One of the many criticisms of the bill by the Barreau was the fact that a great deal of attention was given to the type of offence committed rather than to the young offender, with a view to ensuring his social reintegration. We feel that the same comment applies to Bill C-7.

In the June 16 edition of La Presse, in a letter from the Minister of Justice addressed to journalists, this was said, and I quote:

The proposed bill contains more effective and better-targeted measures for young offenders. It will take into consideration the nature of the offence and other elements such as particular circumstances, the best way of rehabilitating the offender, and the government's obligation to protect society.

We note that the first concern in the minister's statement is the nature of the offence. The Young Offenders Act has been reassessed on a regular basis especially during the past few years. The Barreau du Québec shares the government's concern with protecting the public but does not believe that the means chosen through Bill C-7 are appropriate.

It is true that the bill improves the system in some respects. For instance, keeping the age of criminal responsibility at 12 years, the scope of extrajudicial measures, the improvement in the role assigned to parents and victims, the clarification of the non-detention concept and the amendments to the non-automatic referral process are some of those improvements.

Our brief is the result of a detailed study carried out by people from all walks of life. In the list, you will see that there are university professors, sociologists, people who work with young persons, lawyers in private practice, and lawyers from the Youth Protection Branch. Everyone has participated in this study and their point of view is unanimous.

These people were chosen for their knowledge and their legal experience. Their conclusions show that some serious changes must be brought to this bill in order to settle Quebec's concerns.

As it has done on several occasions in the course of the past few years, the Barreau du Québec reiterates the importance of maintaining a balance between the objective of protecting society and the right of the adolescent to be treated according to his level of development and maturity. We feel that that essential balance is not respected in the bill as it stands. We must be careful because some points in the preamble give the impression that that balance might be found there. In legal drafting, the preamble is normally the last element one turns to. When one is in a tight spot as concerns interpretation and no longer knows where to turn, one turns to the preamble. It is certainly not by including them in the preamble that specific values are brought to the fore.

Certain principles that are mentioned in clause 3 seem very important and change-inducing. These principles govern, generally speaking, but the principles in each of the clauses contain contradictions between the general principles set out in the beginning of the bill and those put forward elsewhere. I will let Ms Brosseau come back to this later.

Although the preamble as well as certain principles attempt to balance the needs of the young persons and the protection of society, the fact remains that the very structure of the bill does not respect that objective. In fact, the seriousness of the offence is the determining factor in the choices to be made under Bill C-7.

Given the complexity of the bill, the recognition of the right to counsel must be guaranteed at the beginning of the process, and even after legal proceedings. Recently again, on July 12, the Supreme Court reminded everyone that the bar and lawyers were important elements in the legal system because of the knowledge they possess and because they can provide a guarantee of competence and confidentiality.

The Barreau du Québec objects to the provision that the child's parents may have to repay the costs incurred in the child's defence, and reiterates the position taken by the Conseil général of the Barreau du Québec in June 1995, which stressed the need for services to be provided by the government representative free of charge.

The bill introduces a complex sentencing system in which young persons found guilty of the same kind of offence may be given a youth sentence or an adult sentence. As well, an automatic release mechanism is introduced that is similar to the parole system we are familiar with for adults. The Barreau submits that all these provisions distort the nature of the rehabilitation programs that apply to young persons. Increasingly, the distinction between the criminal justice system that applies to adolescents and the criminal system for adults seems to be evaporating.

The new referral process may apply not only to young persons aged 16 and 17, as is the case under the current act, but also to young persons aged 14 and 15, who may be subject to this procedure in the cases specified in the bill. In addition, the flexibility that the minister has announced is limited to the possibility of making adult sentences not applicable to young persons, by order of the Lieutenant-Governor in Council, which is clearly not sufficient.

The bill also makes it possible to broadcast the identity of convicted young persons in the media in a case where a specific sentence has been imposed for a presumptive offence, or where the young person has received and adult sentence.

In the latter case particularly, where the young person has received an adult sentence, this measure applies even if the appeal periods have not expired. The Barreau du Québec is still of the opinion that a young person's identity must not be disclosed, particularly when the young person is given a specific sentence, a concept that is now associated with the new provision. In fact, that principle complies with the spirit of the international rules regarding respect for young people's privacy. Canada has decided to adhere to certain international agreements. There must be consequences to that participation and that will to subscribe to international principles. While publication of young persons' identity is sought in certain cases because this is regarded as protecting society better, the Barreau du Québec believes that we must resist this pressure and do a better job of explaining the youth criminal justice system to the public.

In conclusion, may we reiterate that the autonomy of the Barreau du Québec vis-à-vis the government is one of the bases of our democratic system recognized by the Supreme Court in its referral on the Manitoba Law Society which contributes actively to the respect of the rule of law as well as to constitutional order.

The history of western political institutions demonstrates that lawyers and bars have played an essential role in preserving democratic institutions. It is with this in mind that the Barreau du Québec will continue to push for the acceptance of principles that underpin our society and our democracy.

With your permission, I will now give the floor to Ms Brosseau who will be making a more technical presentation on certain aspects of the bill.

Ms Carole Brosseau, Lawyer, Barreau du Québec: Madam Chair, I would like to add some more specific information. There have been amendments throughout the bill. The process was quite lengthy. There were amendments concerning statements and objectives.

The value of the interesting preamble of the bill has not been considered by the courts and by current doctrine. That means that no matter what the content and objectives set out in the preamble, they will not be considered by the courts or by an interpretation rule. People will go by the objectives set out in a general fashion in clause 3 of the bill and in a more specific fashion in the various determining parts of the bill, such as the chapter on extrajudicial measures, sentencing and measures concerning custody.

Specifically, those objectives will have priority over the preamble even if it is specified that in a complementary fashion, the mechanism in clause 3 on principles shall apply. Unfortunately, as I was saying earlier, the objectives set out in each of the parts will apply more specifically, as concerns custody, for instance, where the primary objective is the protection of society as opposed to what was set out in clause 3, where the rehabilitation of the young person is given priority over the objective of protecting society.

That is the explanation I wanted to give, from the perspective that the bill will bring major change to the way things are done in Quebec currently, under the existing Young Offenders Act. I will give you a practical explanation. Under the current act, there are measures to be taken automatically and gradually, i.e. the offence is analyzed first to determine whether extrajudicial measures will be used or whether the justice system will intervene.

As the current Young Offenders Act is applied in Quebec, the young person's situation is assessed to determine which process will be used. For instance, in Quebec there is an alternate measures program. The type of offence certainly has a determinative influence on the type of rehabilitation that will be selected for the young person. In some particular cases an offender may be sent to the justice system because of the reactions he or she has had; even though the offence may seem minor, his or her behaviour may have considerable impact.

In the brief, I quote a case of car theft as an example. A young person could - young offenders who commit offences are not all hardened criminals - commit such an offence in a very spontaneous way, in a group.

Spontaneously stealing a vehicle could be the only delinquent act of that young person in all the years of his adolescence. For others, such a theft may be indicative of a delinquent profile that runs the risk of developing and persisting even into adulthood.

Quebec deals with these cases in light of the protection of society and the profile of the young person to ensure his or her rehabilitation. Automatic mechanisms will see to it that when you have committed offences - there are categories between a violent offence and a non-violent one - you will automatically be channelled into a system of alternate measures for violent offences. Be that as it may, you certainly will not get off with a warning. You will immediately be subjected to a process of sanctions, the equivalent of the alternate measures program or the justice system. I am not referring to presumptive offences in this context.

These automatic mechanisms raise problems in the application of the law. Under sentencing rules, once the young person has been found guilty, there will be further automatic mechanisms: the Youth Court will have to grapple with them in attempting to enforce the measure itself. Will it be a sentence specific to young persons? They are referred to as specific sentences in the bill. Will it be an adult sentence?

Adult sentences may be applied when the young person has committed a delinquent act. If one compares this to the adult system, that delinquent act would make the offender liable to a sentence of two years or more. I will spare you the provision of clauses 61 and following with regard to notices. These are automatic measures that do pose problems. We see another problem involving the use of the young person's records and as concerns the real confidentiality of those records.

The submission expressly identifies problematic legislative provisions. Generally speaking, many people will have access to the youth's file.

In reality, the legislation's stated principle, namely ensuring the confidentiality of information and limited access to the youth's file, will be difficult to uphold. From the moment a police officer is authorized to disclose information, even to insurance companies, you can see how this might create a problem. Only companies such as the Bay and Zellers actually stand to benefit from this provision. This information is of no benefit whatsoever to the youth or to parents. That is a real problem.

The problem is one of automatic responses and stringent observance of certain established rules. The legislation makes provision for every eventuality. Allow me to expand on this statement.

Unfortunately, one important issue that the Youth Criminal Justice Act, or Bill C-7, fails to address is the matter of young persons having criminal records. The legislation sheds no light at all on this area. The Barreau du Québec has always maintained, particularly in the case of offences involving specific sentences, that a youth should not be prejudicially affected. Contrary to popular belief, it should be remembered that youth offences usually involve other youths or groups of youths. Usually, we are dealing with assaults committed upon other youths. In the case of male youths, the period of juvenile delinquency usually lasts only two or three years, that is from 14 to 17 years of age. In the case of female youths, the rebellious period usually occurs between the ages of 15 and 16.

That is the profile of the juvenile delinquent. The Barreau and lawyers working in the youth system in Quebec base their opposition to the bill on this profile. They feel the legislation as drafted is based on automatic responses and shows a lack of regard for youths. Any youth legislation must focus first and foremost on youths. Its provisions must not (and this is the biggest problem we have with the bill) mimic those applying to adults. This could lead to problems. I can elaborate on this later. The parole and temporary release systems already cause problems for adults. Why then adapt these provisions to the youth justice system? This is not a recommended course of action. In short, theses are some of the problems we have with the bill.

[English]

Ms Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: The Canadian Bar Association is pleased to have this opportunity to present our views to your committee today. We consider Bill C-7 to be a very important piece of legislation for Canadians.

The Canadian Bar Association is a national association that represents over 37,000 members across Canada: lawyers, notaries, law teachers and students from every part of the country. The submission that you have received today is a letter that outlines some outstanding concerns with the bill as well as a more detailed submission on the predecessor, Bill C-3. These documents were prepared by the National Criminal Justice Section of the association.

The Criminal Justice Section is unique in that amongst its 1200 members across the country are both crown attorneys and defence counsel, so we bring that balance to our representations to you today.

Amongst the primary objectives of the Canadian Bar Association are improvements in the law and improvement in the administration of justice. It is also in that optic that we make our presentations today.

I will ask Ms Schurman to outline the more detailed aspects of the bill that we would like to bring to your attention today.

Ms Isabel Schurman, Past Chair, National Criminal Justice Section, Canadian Bar Association: There are three essential components to a fair and effective system of juvenile justice. There is the law, there are systems put in place and resources to fund them, and there is the implication of people and human nature. Any one of these elements might fail, but our goal should be to have the fairest and most flexible law, the most resources possible devoted to the goals of that law and the highest qualified workers within the system. If we have these, then our chances of failure are perhaps far lessened.

There has unfortunately been a great deal of publicity about a very few, very violent crimes committed by juveniles in this country, and that unfortunate publicity has shifted the focus from the reality. The reality is that youth crime in this country is decreasing. The reality, as Ms Brosseau has explained, is that the type of crime is often property related. When it is against a person, it is often between youths.

The Canadian Bar Association, as Ms Thomson explained, represents 37,000 attorneys across the country. We put together a committee of attorneys - crown and defence - from all over the country, including Quebec. I myself am a native of Montreal. Our committee studied the predecessors and Bill C-7.

Some areas of the country said this piece of legislation is nonsense and too lenient. Quebec said this is nonsense and too severe. It is the same piece of legislation, the same law. Our conclusion is that neither response is accurate. It is neither too lenient nor too severe. We maintain that it is generally good, comprehensive legislation representing a principled approach to youth justice in this country.

For years, Quebec has been extremely successful at keeping children out of detention. Children should not be detained. Quebec has been extremely successful with a program of alternative measures that works. It is properly funded, and it works. Quebec and British Columbia, as I understand it, have the lowest incarceration rates for young people in the country. The other provinces' rates are higher than the United States, higher than the United Kingdom, higher than any place we might look to and say, "Thank God we are not there."

A good proportion of this law favours the Quebec model without, we submit, taking anything away from Quebec's ability to keep doing exactly what they have been doing so successfully. That would be a shame, and that would be just plain wrong.

At the House of Commons committee, I had the honour of being asked to speak. At the time, the then bâtonnier, Denis Jacques accompanied by Ms Brosseau, were present. The view from Quebec, as I understood it, was that the legislation was not necessary, but if you had to do it, there were a few clauses with which they did not agree. The Canadian Bar Association also takes the position that there are a few clauses with which we do not agree. I will get to those as we go on.

The Quebec position seemed to be that it was not necessary because they were already doing it in Quebec. Fine, it is done in Quebec, but it is not being done in the rest of the country. In the rest of the country, people should be encouraged to keep our young people out of detention for things that do not merit detention.

This law, in our humble view, seems to support alternative measures and treats prison as a last resort - and so it should. Prison, detention or incarceration should be a last resort for our young people. We, after all, are the ones raising them. We, after all, are the ones responsible here. The bill supports an emphasis on rehabilitation. Many of our native communities in Canada say that it takes a village to raise a child. Many of our children are being raised without a village. This bill's emphasis on implication of families, implication of communities and implication of victims will perhaps give some of those children a village within which to grow up.

We do see problems, and I will not say otherwise. We have said it. It is in our brief.

We have always said that if the state wishes to transfer a young person either to an adult system or to an adult sentence in the new system - the distinction in this new system is that you are not transferred to an adult system but treated as an adult at the sentencing state - that burden should remain on the state. It should be up to the state that is prosecuting to say why this person does not deserve to be treated as a young person. That burden should not be the young person's shoulders.

The age should remain at the age of 16. We have repeatedly said that there is nothing wrong with the present Young Offenders Act scheme. Leave the burden on the Crown, and leave the age at 16, with the possibility, as in the present system, from 14 to 16.

We have also said that transfers - be they physically to another system or type of penalty - should be limited to a category of the most serious offences in the most exceptional circumstances. The present system allows for that.

We do not believe that the three-strikes-you-are-out is sound philosophically. We see it with adults in California. It is something similar here. We do not believe in it. We believe very much in the value of judicial discretion. In one offence, the judge may decide there is a major problem; but in ten offences the judge may say, "Look at all the circumstances. This child is not a criminal." We believe in the value of judicial discretion. It is key to our whole system. We believe parties should be able to apply to a judge to consider all of the circumstances.

After our last representations, the government did tighten its definition of "serious violent offence" for the three strikes situation, but it did not address the inherent arbitrariness of the whole three strikes principle.

We were vehement and adamant that the dangerous offender proceedings should never apply to young people. As the law is now drafted, they would apply to young people who receive an adult sentence, and we have reservations about this. Dangerous offender proceedings should be a last resort when there is nothing left to do, and it would be a shame to ever think of the last resort when we are speaking of people who are not even at the age of majority.

The Young Offenders Act has a scheme for publication questions, and if there is a question of danger, a person, a police officer or a Crown prosecutor can apply to a judge to ask that a name be given out. We believe the scheme as it exists is sufficient.

Further to our representations on the last draft, the government did change sections that dealt with the admissibility of statements of young people. We were happy to see the change. We were unhappy with the last version. The change now gives judicial discretion to render inadmissible statements of young people in cases of technical breaches. It is not as all-inclusive as the present law, and the present law was fair. We believe that perhaps it is not necessary in the circumstances.

We do believe that all governments should be putting resources into the interception, intervention and rehabilitation questions.

We are happy, as are my colleagues from the Barreau du Québec, that the age of majority was not lowered below 12. Children below 12 belong under the auspices of child welfare agencies.

We were happy to see the government amendment that allowed young people with minor violent offences, or perhaps a prior situation under the law, to still be admissible for alternative measures, because that is fair and flexible.

We are happy to see the government recognize a special provision concerning Aboriginal offenders, which we believe was fair and in line with the Supreme Court of Canada decision in the case of Gladue.

With respect to the mandatory supervision sections and follow up after sentencing, we do not share the fear of our colleagues from the Barreau du Québec that children coming from detention centres will be turned into children on parole as if they were adults. If these organizations are set up properly, the mandatory supervision may just be the help and support that the young person may need to find his or her way forward. We would reject any kind of blanket presumption that this type of supervision would be precisely what we see in adult cases.

Our fear about the one-third/two-thirds formula was that sentencing might go up in certain parts of the country because judges might feel if somebody is going to go out after two-thirds, perhaps they should raise something. We think that would be a shame because the reintegration into society is part of any sentence. It is not as restrictive as being detained, but it is part of any sentence. We hope that judges do not respond by raising sentences generally.

There may be refinements over time; there may be amendments or changes that ultimately need to be made. However, if we are saying that we should reject a comprehensive, principled approach to criminal justice for youth in this country, we do not believe that it is the case.

We do not believe this is a step backward. We believe it is several steps forward, not the least of which is the emphasis on alternative measures in those parts of Canada where they are not only being underused, they are not being used.

[Translation]

Senator Beaudoin: I am truly impressed by the caliber of the witnesses' presentations, given the complexity of this bill. I have one or two preliminary questions for you, as I am certain my colleagues will also want to jump into the fray. In Quebec, a case can be transferred to the Court of Appeal. How does the Barreau feel about that? Do you favour this course of action?

Mr. Gervais: For the time being, the Barreau has no intention of reviewing this matter, unless of course specifically requested to do so. The Barreau's policy has always been to make representations, just as it is doing today. Engaging in debates of a more political nature is not necessarily the Barreau's role. It makes representations when and where it feels the need to do so. The Barreau has not been asked, and has no intention, of intervening.

Senator Beaudoin: The Quebec system is different. I have taken note of what you like, and do not like. Do you think the bill can be amended, or is it a hopeless cause? Are your objections to the philosophy behind Bill C-7 such that you believe it cannot work, even if amended?

Ms Brosseau: The Barreau has proposed a number of legislative amendments to the former Bill C-3. Bill C-7 contains some of the suggested changes and some of our concerns have been addressed. We state as much in our revised submission to the committee.

Moreover, if the Barreau said it was satisfied overall, that would mean all of the changes requested were made. I doubt that that will in fact happen by the end of the fiscal year. Furthermore, in order for the Barreau to claim complete satisfaction, the whole issue of criminal records for young persons will need to be revisited. Unfortunately, no mention of this matter is made in Bill C-7, despite our requests. As for the transfer process, the Barreau prefers the provisions in Bill C-7 to those in the existing Young Offenders Act. However, the Barreau has never supported the idea of youths under 18 years of age being treated by the justice system as adults. This is unsatisfactory to us.

Senator Beaudoin: In your presentation, you voice your clear disapproval of a number of provisions. If several significant amendments were made, could this bill be acceptable to you? Or is it merely an exercise in futility? Are the two systems so different as to be irreconcilable? Will the Barreau endorse this proposed legislation if major amendments are passed?

Mr. Gervais: That would depend on the extent of the amendments. Obviously, the Barreau is pleased with the progress made and the differences between bills C-3 and C-7. However, there are still a number of provisions with which we disagree.

It would all depend on the scope of the amendments. Yours is a hypothetical question. We might well be satisfied with Bill C-7, but what kind of major amendments are you referring to? That will most likely be your next question.

It is not a black or white issue. We have made representations about a number of things that are important to us. If we were satisfied that the amendments addressed these concerns, then I suppose we could live with the bill.

[English]

Senator Beaudoin: Now, for the Canadian Bar, you say that it is an improvement. I ask you the same question. You have some reservations about the bill. I understand from what you have said that they may be cured. Those areas may be amended and the bill would be acceptable.

Ms Schurman: That is our feeling, yes.

Senator Beaudoin: That is the feeling of the Canadian Bar Association?

Ms Schurman: Yes.

Senator Beaudoin: You consider that as a federal law. It is a federal system, also, but is it a federal system that may be reconciled with the Quebec system?

Ms Schurman: We believe so.

[Translation]

In our opinion, there is nothing in the bill to prevent Quebec from doing exactly what it is doing right now. On the contrary, I think it will encourage other provinces to follow Quebec's lead.

However, it is incumbent upon the provinces and the federal government to ensure that sufficient funds are available to develop alternative systems.

Quebec has benefitted from this kind of funding and the results have been very positive. The legislation will encourage other provinces to follow Quebec's lead. However, funding must be made available to them.

[English]

Senator Beaudoin: I wonder if I may ask the same question of the Barreau du Québec.

[Translation]

You seem to be saying that if a particular amendment is brought in, you might be able to live with the system. Obviously, many amendments would be needed. Still, it leads me to wonder this: if the requested amendments were made, would you be able to live with the bill, or it that not possible given the differences in approaches to the justice system?

Mr. Gervais: That is the very crux of the matter. If your important amendments changed the approach taken to the whole question, then it would be easy to answer that question. If they did not, that perhaps we could not live with the bill.

Senator Beaudoin: That answers my question.

Mr. Gervais: It all depends on how far these amendments go.

[English]

Senator Andreychuk: I thank both groups for coming and sharing their perspectives. It is very helpful.

I understand and support the Quebec model because it appears to be working to the benefit of young people and the communities.

One of you started your presentation by saying that when you came together as lawyers, some were saying that the act was not tough enough and did not have the teeth to protect society. Others were saying it was too tough and should have more rehabilitation; you had this great disparity across the country. Yet you have given a brief here saying that "the bill is fine, but for..."

How did you come to that, if the disparity was so great? How did you come to your conclusions?

Ms Schurman: What I was saying was that the initial group came from areas of the country where these were the predominant feelings. The group - present company excluded - was made up of an exceptional group of jurists who are very wise in their approach and had the patience to go section by section and look at the reality. They would bring in the views from their area of the country, as I did, but also be open to the others, saying, "These are the views in our area, but look at this section and that section."

When we sat down after many meetings looking at it and working through it, we realized that there were not many things in the law that were very close to what was working in Quebec There were other things that were perceived as lenient in other provinces that might in fact benefit other provinces, such as those alternative measures programs, and that what was referred to as being so severe may be open to interpretation.

Of course, as you know, we have those several points on which we were not able to say we agree with the legislation. On the rest, we were all able, after a lot of work together, to sit down and ask, "What will be the best for the youth of our country? What is best approach to avoid youth crime in Canada and help those who suffer from problems?"

Each person, perhaps, did not hold the views of their area of the country but they brought them into the discussion. Some held them; some did not; but they brought them into the discussion. What amazed us was that this single piece of legislation could have stimulated such diametrically opposed objections. We would sit in those meeting rooms and just be baffled.

We decided to take a section-by-section approach to the law and ask, "What is good for our youth and what is not? Is this so wrong on one side or the other?" We concluded it is not. It may need refinements, but it is a piece of legislation that is meant to deal with an awful lot at once, in areas of the country with different priorities. However, it deals with it in a comprehensive and principled way.

Senator Andreychuk: You commented that there is an awful lot in this legislation.

Ms Schurman: Yes.

Senator Andreychuk: Am I correct that it is predicated on resources to make it work?

Ms Schurman: As far as the alternative measures programs and certain other sections go, certainly. That is a fair statement.

Senator Andreychuk: Are saying that Quebec is the one that released resources to alternative measures under the existing act? You have made the point that others have not. What leads you to believe that, under this act, those resources will be in place, other than in Quebec?

Ms Schurman: I can see situations arising, for example, where, if the law has as a principle that detention is to be a last resort, and in a particular province a young person is sentenced to detention because there is no alternative, as counsel, I would be perfectly as ease to challenge that before the courts. I would ask the courts to solve the problem as far as the resources go, so that we would not be strictly in the will of any particular federal or provincial government. We would be in a situation where the law gives us the tools to go forward and say, "Please, tell the government to do what they have to do in order for our young people not to be sent automatically to jail."

Senator Andreychuk: Under the Young Offenders Act, as I understand it and have applied it, incarceration was supposed to be a last resort also.

Ms Schurman: Yes, but the way this scheme is put in this new law, it is so much more detailed and better developed in terms of what steps must be taken before you even get into a courtroom. Even in the number of articles in the law, it is so much more detailed than what exists now. It is so much more so that I think it would be a more powerful tool to be able to go to a court and say, "Step one was not taken; step two was not taken; step three was not taken, because they do not do it in this province; there is no money for it." Perhaps the courts could order that the problem be resolved that way.

Senator Andreychuk: Does it concern you that it will pit the justice system against the provincial will in having to go to courts, if they already have not provided those resources?

Ms Schurman: I do not know if we are pitting them against each other or forcing them to work together.

Yes, we see that. Of course, it is a concern. We do it in various areas. However, part of the role of the courts in protecting constitutional values in this country is to respond to those situations where the state may not be doing what it should be doing to carry out the intent of the legislator. There is always that sort of risk. If you flip it, it is also a positive thing that we have not just our executive branch but also our courts to say that we have a power of surveillance and we are looking at this and it does not seem fair. I see that as a reassurance, not as a stimulus to argument.

Senator Andreychuk: We are really talking about social services, which are provincial resources under provincial responsibility that go into alternative measures. You are saying they were not done directly by the province exercising its legitimate jurisdiction, so we will now formalize it in the court process so that the courts will mandate the provinces to do what you believe they should have been doing under their provincial jurisdictions.

Ms Schurman: If you get there. We may also have a number of provinces that say, "This makes sense. We see what is being done, and we see the philosophy behind this law." We cannot presume that provinces will not come around and say, "We have a problem here, and perhaps we can solve it the way Quebec did. Maybe we can learn from this and use it." One can hope that we will not get to that point.

Senator Andreychuk: Perhaps I can pose my last question and the witnesses can reply in writing. My concern for the Canadian Bar Association is that we work best when we give the professionals the discretionary power to look at each individual child. The difference between the Young Offenders Act and the present Bill C-7 is that it seems to fetter the discretion of the judiciary and the entire judicial system, mandating how they will exercise that discretion in great detail. Is this not defeating and undermining the fine professionals who dedicate their lives 24 hours a day, seven days a week, to working for the young people in our communities?

Ms Schurman: If that is what it does, then that is the result, but we too support judicial discretion and the ability to look at each child individually.

Senator Cools: I thank the witnesses for what I think has been very good, serious testimony. It is obviously well prepared and well considered. My question is slight in the scheme of things.

I was struck when the witnesses basically said that persons under 18 should not be treated as adults. In other words, the witnesses are strongly upholding the fact that children are children and should be dealt with as children. As the witnesses were making these statements, it occurred to me that the law of divorce, on the other hand, says the opposite. The law of divorce, for example, says that persons over 18 are not adults, but children, and for the purpose of one ex-spouse paying child support to the other ex-spouse, I think they even have the expression "adult children."

Senator Beaudoin: Is that in the act?

Senator Cools: We cannot go there. It is very complicated. However, the age for child support was extended from 16 to 18 recently. It used to be 16. Adult children are over the age of 18, past the age of majority.

The Chairman: That is, I believe, for the purposes of supporting adult children who are still in school.

Senator Cools: Or, for whatever reason.

The Chairman: I will point out that this aside from this bill.

Senator Cools: It is not aside, because how can the same law of the land in respect of children and adults have such opposite and conflicting views? I wonder why one set of law goes in one direction and the other set, applied to young people who find themselves in trouble before the law, takes another direction. Since you have given a lot of thought to the philosophical underpinnings, do you have any views on the obviously opposite movements in the law?

Mr. Gervais: When we talk about children under the Divorce Act, we are talking about financial dependency. A child over 18 but who is in school or has physical problems or other problems so that he cannot be financially independent will then be considered under presumption a child.

In the act under consideration this morning, we are talking about a personal responsibility. The law says that when you are applying your own personal responsibility, you must be considered as a child under 18, and over 18, as an adult. We are not talking about the same kind of focus.

Ms Schurman: I cannot even pretend to have any knowledge of current family law at all. It would be fair to say that you will often find situations in Canadian law where, for the purposes and goals of one piece of legislation, a particular definition may be adopted where you may have something else somewhat different or strikingly different according to the purposes or goals. It does not necessarily mean there is an inherent conflict. It may mean you are trying to help and protect a certain group in one area or another.

Senator Joyal: You called for the elimination of clauses 145(5) and (6) of the bill. Madam Chairman, you testified before the House of Commons on February 29 on that very recommendation, and I quote your comments at that time:

[Translation]

You state the following:

We believe it would be constitutionally invalid to create a paragraph that would say that all of these protections in subclauses (1) to (4) are necessary when dealing with statements taken from children, and to then allow the judge to refuse in fact to admit the statement into evidence if the judge decides it does not bring the administration of justice into disrepute.

You go on to say this:

The Supreme Court of Canada has consistently said that conscriptive evidence obtained in a manner that violates the charter would bring the administration of justice into disrepute. We believe that there is a serious chance these sections would not pass scrutiny under the Constitution.

Could you elaborate a little further on this matter?

Ms Schurman: When I made those statements, these provisions had not yet been amended. However, I must first tell you that the Canadian Bar Association has not yet taken a stand on the transfer issue. When I testified before the House committee, the amendments had yet to be introduced. The wording of the clauses was much broader in terms of the latitude awarded a judge. Evidence could be ruled admissible despite what could be perceived as a major violation of the young person's rights. We objected because this was counter to existing case law. The appropriate amendments were made.

As a result, these clauses pose far less of a problem for us. As amended, the provision now states that a judge may admit a statement into evidence when there has been a technical irregularity. The word "technical" has not yet been defined, as I mentioned earlier. We are still somewhat uncomfortable with this because this provision does not offer the same safeguards as section 56 of the Young Offenders Act. I cannot make as forceful a statement as I did before the House committee because these two provisions are very different now than they were at that time.

Senator Joyal: Could this provision still be challenged under the Charter, despite the amendment? The revised subparagraph (6) mentions a "technical irregularity", specifically:

When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), [...] may admit into evidence a statement referred to in subsection (2) [...]

Ms Schurman: The Canadian Bar Association has not taken a stand on the transfer issue, but this will become a question of fact, rather than a constitutionality issue. That is only my personal opinion, of course.

Senator Joyal: I am having some difficulty reconciling your statement with the Barreau du Québec's submission. The Barreau maintains that up until now, Quebec has taken into account the young person's overall situation in its approach to dealing with a case, in keeping with the spirit of the Young Offenders Act.

In other words, not only does it take into account the offence committed (for instance, auto theft) but also the circumstances surrounding the commission of the offence (for example, the youth's personal and family situation) before deciding on the appropriate course of action.

Now you are telling us that the bill takes a fundamentally different approach by focusing on the nature of the offence. You are telling us that the Quebec model has worked well and should be exported, if I may use the expression, to other provinces in Canada, albeit with some changes. That is what I do not understand. I fail to understand how you can go from guaranteeing that the bill's stated objective will in fact be achieved in other provinces when the premise on which the Quebec model is predicated is being changed. Budgets can be either increased or cut. Provinces can decide unilaterally, just as Mr. Klein has done, to close certain facilities. According to the Red Deer Advocate, Mr. Klein is planning to shut down four youth work camps.

[English]

In an article entitled "Work camps could close to cut costs", the paper reported yesterday that "the Solicitor General's department is looking for ways to trim $2.4 million from its $240 million budget."

[Translation]

In other words, as a result of an act of political will, there will now be some degree of certainty that rehabilitation will become the key feature of the philosophy behind the legislative provisions which are essentially based on the nature of the offence. I would dearly like for this to be the case, but it is not enough simply to wish it were so. Specific provisions guaranteeing this outcome would need to be included in the legislation. I do not see how the approach advocated by the Barreau du Québec whereby an assessment of the overall situation is preferable to automatic responses will suddenly become the approach of choice in the other provinces, when the very foundations of the system are being altered. Money will be used to bait provinces that have different systems to adopt the Quebec model.

[English]

It will be a question of teasing them with money when we know that the money is a variable factor according to circumstances and so forth. The newspaper this morning just showed that in Alberta, which is a province with a high level of detention, will be cutting into its initiatives for rehabilitation. That is what I am trying to understand from the proposal that you have made.

[Translation]

Ms Schurman: When my colleague talks about automatic response and the emphasis being put on the nature of the offence, there are certain categories for which the rules of the game are set to change. Instead of certain offences being labelled more serious, a youth who has committed three violent offences, albeit poorly defined according to certain persons, may be transferred to an adult court. However, for the vast majority of offences, such as property offences, the various alternative measures that will apply are set out in clause 4 of Part I. We disagree with any kind of automatic responses. We believe the legislation will encourage extrajudicial measures in the vast majority of youth offences, thereby avoiding incarceration. Some contentious problems still need to be resolved, such as the onus being on the youth for transfer questions and the three-strikes-you're out-rule. Admittedly, a wide range of alternative measures may be imposed, as police officers and social workers are not being told to disregard the young person's overall situation and circumstances.

At present, a Quebec youth charged with shoplifting is not brought before a judge. He receives a summons to appear before a social worker. The young person may be accompanied by his mother or father or by counsel. The conversation is private and privileged, if ever the young person decides he would rather have the matter go to court. Anything said in the course of this meeting cannot be used again him. The aim of this approach is to encourage the youth to acknowledge the commission of the offence and to determine if there is a chance that he can be rehabilitated. In the vast majority of offences, whether a judge, police officer or social worker is involved, we encourage them to assess the overall situation and the nature of the offence.

In the case of automatic responses, and the three-strikes-you're out-rule would certainly qualify as one, we disagree completely with this approach. Judicial discretion must be exercised to assess at every stage of the process the youth's situation and the circumstances in which the offence was committed.

Ms Brosseau: I disagree with my colleague. Clause 62 of the bill stipulates that an adult sentence may be imposed on a young person, not just in the case of presumptive offences, but also in the case of an offence for which an adult would be liable to imprisonment for a term of two years or more. I have drawn up a list of such offences as set out in the Criminal Code. Setting aside Bills C-15 and C-24, I have come up with 18 full pages of offences that would fall into this category.

Senator Joyal: Would you care to share that information with us?

Ms Brosseau: I would be happy to send you a photocopy. My colleague stated that we had the legislation, the resources and the means to enforce the law. In the case of Bill C-7, the same problem will recur or will be compounded.

When new legislation is tabled, the provisions must have a specific meaning. How these provisions are ultimately interpreted by the courts will determine application guidelines.

To my mind, the profile of a young person charged with property offences is one consideration. However, this type of young offender may not have a profile likely to result in his benefitting from a less sever sanction. I do not share my colleague's view because of clause 62. Resources are one thing; how to go about enforcing the law is quite another.

Quebec had no problem with the existing legislation. Basically, I do not believe it is the same thing. Will this lead to harsher measures being taken by Quebec? That remains to be seen. Will other provinces adopt a more flexible approach? That too remains to be seen.

It would be interesting to have more extrajudicial measures. We cannot forget either positive prerogatives and programs that may be established by a lieutenant-governor of a province where the police would have some discretionary authority.

Police officers are not interested in the least in exercising any discretionary authority. They are concerned because they feel they lack the knowledge to gauge the importance of a particular matter. What about warnings that are not sanctions? What about alternative measures programs? Why type of programs will the lieutenant governor be establishing? That remains to be seen. It comes down to the legislator's discretion and to a matter of provincial prerogative. All of these factors will weigh in the choices to be made by the province.

It should also be noted that we seem to be looking increasingly to the adult model when considering ways of dealing with young offenders. International conventions stipulate that a young person warrants special consideration. There are systems in place to deal with young persons, but the trend today is to apply the adult justice model to young persons. That is where the issue gets complicated.

[English]

Ms Schurman: A point of information, I do not think that your study of clause 62 can be complete without looking at clause 72. In clause 62, we are talking about presumptive offences - murders and second-degree murders. In paragraph 2, we are talking about anything for which an adult might receive two years or more.

In clause 72, there is provision for a hearing where the youth court will look at all the circumstances and all the characteristics of the offender. That discretion is in clause 72.

Our problem is when the burden is on the youth to make the application, which is another issue. The discretion remains for everything except those presumptive offences. It must be read as a whole.

It is a little misleading that the first paragraph of clause 62 says, "shall", and then we insert discretion into paragraph (b)

[Translation]

Ms Schurman: Paragraph 62(b) refers the reader to paragraph 72(1)(b).

[English]

The Chairman: You are referring to clause 72(1)(b). That leads to the section that says, "if it is of the opinion that a youth sentence imposed in accordance with the purpose set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length ..." That is where the discretion rests.

Senator Beaudoin: That does not change what Ms Brosseau had said.

Ms Schurman: It reads in 72(1) that the "court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person ..." The discretion is there.

Senator Beaudoin: Could we hear from Ms Brosseau on that? Does it change?

[Translation]

Ms Brosseau: To my mind, that does not change. People's positions may be contradictory at times and that is why we have courts. Our point here is not to present a contradictory position. That would in no way change the approach certain provinces will take to establishing programs.

Earlier, Senator Andreychuk referred to the discretionary authority that will be exercised by the individual responsible for administering sanctions and to the discretionary aspects of the legislation.

Quebec's youth protection branch has considerable judicial discretion with respect to the application of the two laws.

[English]

Senator Joyal: The witness has already touched upon my next question in terms of the international convention and the system that brings it closer to an adult system. This is a key question on the constitutionality of the bill, and I will come back to it on another round.

[Translation]

Senator Fraser: Clause 6 mentions the discretionary powers of police officers. You are concerned that a police officer may not feel qualified to make a correct determination and may automatically, as a precaution, charge the young person. Is that correct?

Ms Brosseau: Based on my experience and pursuant to the legislation, the lieutenant-governor in council may establish a special program for police officers and Crown prosecutors. The lieutenant-governor in council will likely have set down some rules and guidelines for police officers to follow in such instances.

Senator Fraser: That applies only to warnings. However, the police officer does maintain some discretionary power, even if no provincial program is in place.

Ms Brosseau: As matters now stand, the Attorney General has responsibility for deciding whether or not to opt for extrajudicial sanctions. In Quebec, this responsibility fell to the counterpart to the Attorney General. This will still be the case, but with respect to warnings, police officers have expressed a great deal of concern because they are required to keep a record of the extrajudicial measures taken, given that they may be asked to disclose that information.

The fact that the lieutenant-governor in council may establish a program will provide additional guidance for police officers in this area. However, if no such program is in place, it will be difficult for them to exercise this discretionary power given the concerns they have expressed about the process in general.

Senator Fraser: I felt that this offered a great deal of protection to young persons.

Ms Brosseau: It is not ill-advised to have a provision allowing the lieutenant-governor in council to set down general rules governing this broad area.

Senator Fraser: Moving on, regarding the publication of the names of young offenders, you note the following in your summary:

[English]

"The principle that a young person's identity must not be disclosed complies with the spirit of the international rules regarding respect for young people's privacy."

[Translation]

Could you elaborate on that for me, and also on the distinction between the spirit and letter of these rules and how these relate to international privacy laws? The list of exceptions is rather lengthy.

Ms Brosseau: The principle of confidentiality is set out in the bill. There is a general obligation to maintain confidentiality. Those who receive information must not disclose it to other parties. However, there is a rather long list of individuals who can access the information contained in files. On that score, there was no discrimination between the young person's social profile and purely judicial proceedings. We were somewhat uncomfortable with this definition because the information can be made too widely available. It will be accessible to many persons, including advisory committees representing many individuals. People will have access to this information for a variety of reasons. It is a fairly complex situation.

Senator Fraser: I am not familiar with international law as it applies to this area.

Ms Brosseau: At issue here are the Beijing Rules.

Senator Fraser: An article of the UN convention states the following:

[English]

Privacy must be respected at all stages of the proceedings.

[Translation]

When I put this question to other witnesses testifying before this committee, I was told that this did not mean the youth's name should never be published.

Ms Brosseau: We need to refer at this point in time to the Beijing Rules, specifically to Rules 8.1 and 8.2 respecting publication. These rules tie in with the provisions of the UN Convention on the Rights of the Child and come under the heading "Protection of privacy":

The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. In principle, no information that may lead to the identification of a juvenile offender may be published.

That means no information whatsoever.

Senator Fraser: At any time?

Ms Brosseau: The juvenile's identity shall not be disclosed. In the case of a specific sentence, that is a youth court sentence, the young person's identity shall not be disclosed. When a young person is transferred to the adult system for sentencing, then his or her identity may be disclosed at the time of sentencing, even if the appeal period has not expired. We had requested that at the very least, the appeal period should have to expire or at that all appeals should have to be exhausted before the identity of a young person sentenced as a an adult is disclosed.

Senator Fraser: You would ultimately go along with having the young person's identity published if all of these appeals were allowed?

Ms Brosseau: We object to the publication of a young offender's identity. We would prefer that this information remain confidential forever. However, if we operate on the principle that a young person is subject to adult sentencing rules, than all of the rules applying to adult offenders must apply to that young person. That means disclosure of the young person's identity. However, in cases where a specific sentence has been imposed, the identity of the young person must never be revealed. Young persons on whom an adult sentence has been imposed must not be denied access to the parole system. That would be unfair. The problem lies in treating them as adults. That is indeed the crux of the problem.

[English]

The Chairman: If I may come in here just for a minute, the young person's name, though, is currently published in certain circumstances, even before they are found guilty. Is this law not an improvement?

[Translation]

Ms Brosseau: The adult system provides for this at the present time. From the moment a adult sentence is imposed on a young person, that young person's identity may be published. These general rules apply because trials are public.

Justice must be a public process for the sake of the credibility and transparency of the entire judicial process. Currently, the transfer of the young person occurs in the initial stages, which is an improvement.

Senator Nolin: Questions of principles are always interesting, but the real issue is how these general views apply to the actual details of the legislative provisions. This bill is after all rather complex.

I have a question concerning clause 146. The Canadian Bar Association discussed this provision in its submission to the House of Commons committee. In this morning's presentation, they softened their position somewhat. The Barreau du Québec has not issued an opinion on the question.

Ms Brosseau: In our submission, we noted that some improvements had been made, but the position of our membership remains the same.

Senator Nolin: You are opposed to any and all changes, even those of a technical nature?

Ms Brosseau: The issue of whether such statements are admissible is highly controversial. We operate by consensus and we maintain our position in so far as Bills C-3 and C-7 are concerned.

Senator Nolin: In other words, the statement in question does not meet the criteria set out in clause 146. All criteria must be met, that is not only must the statement have been given voluntarily, but the youth must also have been allowed to consult with counsel, if he so requested, otherwise the statement is deemed inadmissible.

Ms Brosseau: That is correct.

Senator Nolin: The committee will be hearing from Justice Jasmin who examined how the process works in Quebec. I assume you agree with Justice Jasmin's report on young offenders.

Ms Brosseau: Yes.

Senator Nolin: I have a question for Ms Schurman respecting clause 11 which states that parents must receive notice. It is a small detail, one to which you refer in your submission to the House committee. You seem to be saying that if parents are not notified - the person who administers the program is required to notify parents - then that young person does not qualify for extrajudicial measures. Therefore, if the parents cannot be reached, even if the overriding belief is that extrajudicial measures should be applied, this will not in fact happen.

Ms Schurman: The outcome would be prejudicial to the young person.

Senator Nolin: I agree, but I would like to hear your views on the subject.

Ms Schurman: I will check into this. I was wondering if perhaps this was not one of the clauses that had been amended. I do not know for certain.

Senator Nolin: Let me read the clause in question to you.

Ms Schurman: We maintain that the young person should not be denied the opportunity to benefit from alternative measures simply because the parents cannot be contacted.

Senator Nolin: The English version uses the word "shall," whereas in French, we have the word "doit." The clause in question reads as follows:

If a young person is dealt with by an extrajudicial sanction, the person who administers the program under which the sanction is used shall inform a parent of the young person of the sanction.

Ms Schurman: If the young person is not eligible for the extrajudicial sanction because a parent was not notified, that is unfair to the young person. We stand by our position.

Ms Brosseau: The police officer and the attorney general have been replaced by -

Senator Nolin: By the person who administers the program.

Ms Brosseau: What I mean is that certain programs have been established. This does not change anything really.

We encounter the same problem in Quebec, for your information. I have worked with the two regimes, including that of the Youth Protection Act. The problem associated with the requirement to notify a parent has also been raised. To resolve the situation, every reasonable, possible effort is made to give notice to the parent. Programs most likely make provision for this.

Senator Nolin: Even though the legislation says "shall"?

Ms Brosseau: I am saying that every possible effort will be made by the program administrator to notify the parent. I believe the principle espoused by my colleague is correct, but the process could be integrated somehow.

Senator Nolin: Ms Brosseau, you practise law in the criminal justice system for young persons and therefore I am interested in your views on this fictional situation whereby the criminal division of a superior court will be able to hear a case involving a juvenile. How will matters unfold in reality when a young person is charged with murder? This all seems rather unreal to me.

Ms Brosseau: I gave up the practice of law several years ago, but based on my experience and given the information conveyed to me by my colleagues, I think I can answer your question.

As matters now stand, the judge will proceed to the youth court where rooms have been set up for a trial by judge and jury. At least, a room has been arranged for a trial by judge and jury in Montreal. The judge will preside for the duration of the trial. We will be dealing with a different type of judge with a different mindset. I do not know how this is going to work in reality, but the infrastructure is already in place.

Senator Nolin: How are cases dealt with at the present time?

Ms Brosseau: The young person is transferred to an adult court. I sincerely feel that leaving the young person in an environment designed for youths 18 and under constitutes an improvement.

Senator Nolin: Ms Schurman, how do other provinces feel about this?

Ms Schurman: The members of the Canadian Bar Association agree on the need for a youth court, whether or not a jury is present. Judges are familiar with this area of the law, they know the environment and the young persons. This would prevent situations where a young person is transferred to an adult court and finds himself before a judge who is not accustomed to dealing with 16 or 17 year olds and who has no knowledge of the special characteristics of young persons. The single youth court structure is a very sound idea.

Senator Nolin: Then the case would not be heard by a superior court justice, but rather by a judge who will be assigned to youth court?

Ms Brosseau: Correct.

[English]

Senator Grafstein: There are some substantive issues that I would like to deal with from a constitutional standpoint, but first I want to talk about the notion of treating children under the age of 16 as criminals. I start with the basic principle of law in the Criminal Code and that is that ignorance of the law is no defence. Can you be satisfied that someone at 14 years old should not have available to him or her some flexibility that does not automatically suggest that ignorance of the law is no defence?

Let me give you some examples. Under the Criminal Code, as you know, there is a precise procedure of arrest, warrant and information, all of which is necessary to trigger the criminal process. It used to be a common law offence, and there could be some exceptions to the rule, but our Criminal Code is clear that ignorance of the law, except in some specific circumstances, is no defence.

Do you think the sole onus should be on a child of 14, as it would be on someone of age 17? That question is for those of you who support this bill, and both of you do. It has the weight of the Criminal Code.

Ms Schurman: I am thinking about your question. It is not a question to which I have given a great deal of thought. I find it interesting.

Senator Grafstein: It is a profound question that goes to the heart of the Criminal Code. I do not want you to react unless you have given it some thought. Please give it some thought and get back to us in writing.

Ms Schurman: I would prefer that because my colleagues who work on this committee with me may well have varying opinions on that profound question.

Senator Grafstein: While you are thinking about, please think about another one. Under the Canadian Charter of Rights and Freedoms there is a minimum degree of mens rea, particularly as it applies to children being treated differently under international treaties. We eviscerate that by, in effect, treating them as part of the Criminal Code so that the minimum standard of mens rea lapses as it applies to a 14-year-old as opposed to a 17-year-old.

You are familiar with the minimum standard of mens rea as it applies to children. There is a different calculus of mens rea as it applies to children as opposed to the way it applies to adults.

Senator Pearson: For the purpose of those who may be watching us on television, could you explain the meaning of mens rea?

Senator Grafstein: Mens rea is the basis of the criminal law, which is that a person is considered not guilty unless the Crown can prove beyond a reasonable doubt that that person had a mental intent, which means that they understood the nature and the course of the offence. That is limited. The ignorance of the law is taken out because it is a criminal offence. You cannot say you are ignorant of the law. You are presumed to have intent, and the ability to form that intent.

I will leave that for these thoughtful witnesses because it goes to the heart of why one has a concern about moving the strong criminal power from children to adults and where you draw that line. I believe you all know what I am talking about. It is the fundamental basis of the Criminal Code. Let us move to more specifics. That was my philosophic question.

Senator Joyal: It is part of the constitutional issue.

Senator Grafstein: It is philosophic, but it is also part of the Charter.

Let us turn to clause 61. I am delighted that the staff reminded me of this; it has been forty years since I went to law school. If I am a little rusty, you correct me. Section 91.27 of the Constitution indicates that the criminal power is exclusively the federal power. Is there any question about that in anybody's mind? The criminal power is exclusively the federal power. Everybody across the country has already accepted that. It has been accepted since 1867 in every part of the country and in every region. There is no problem with that. That implies that the federal power has to be equal in every part of the country. The administration of justice under 92.14 can be different, but it is one law.

Now, take a look at clause 61. What does clause 61 say to you? None of you have raised this in your brief. I have not gone through the House of Commons transcript. You may have alluded to this there.

Is this clause not an ultra vires delegation of power from the federal government to a cabinet to decide whether the age of a child in Canada should be lowered from 16 to 14, as opposed to keeping it in the federal sphere? Is that not ultra vires section 91.27?

Ms Schurman: We did not look at whether it was ultra vires 91.27. We did have some discussion that is not reflected in our brief about whether this particular section might create a problem in the sense of a 15-year-old in one province being treated as an adult for that which a 16-year-old is being treated as a youth in another province.

Senator Grafstein: I will come to that in a moment.

Ms Schurman: We had considered that but had not put it in the brief.

Senator Grafstein: That is a separate issue. That is a Charter issue: equal rights before the law. There are two issues here under "constitution." One is the old Constitution and one is the new Constitution. The old Constitution is very clear that the federal power was 91.27, and unless the principles of law have changed, the federal government does not have the right to delegate the criminal power. It is exclusive to it.

[Translation]

Ms Brosseau: Your question regarding section 15(1) of the Charter will, among other things, be dealt with by the Court of Appeal.

[English]

Senator Grafstein: I am not asking the Charter question. I will ask that in a moment.

[Translation]

Senator Nolin: The law must be applied equally.

Ms Brosseau: Correct, but as I just told you, this is one of the issues that will be dealt with.

[English]

Senator Grafstein: If neither of you have given any thought to that, would you give it some thought and get back to us?

Ms Schurman: Your question is whether this is ultra vires delegation of criminal law powers?

Senator Grafstein: It establishes an unequal pattern of the application of criminal law across the country and it puts the power into the hands of the provinces as opposed to the federal government. One law for everybody across the land: That is what the criminal law says. That is why the criminal law is exclusive to the federal government.

Having said that, Madam Chairman, the witnesses will get back to us on that.

Let me deal with the next issue, which is equally cogent but a little more complicated. That is the application of equal treatment before the law under the Charter.

Let us use the word "minor" as opposed to "child." If a minor under 16 can be treated differently in one province than in another, then how can one say that the Charter has been fulfilled or met?

Ms Schurman: What we have seen in the Young Offenders Act, as it is now, is that on a case-by-case basis, the prosecutors might request that a particular individual be treated as an adult. Your question, I think, is one that I would like to respond with the members of the committee, because we had several of what might be called e-mail discussions about that issue, after Bill C-7 came into being. I think it might be wise if we respond to you in writing on that because it is a very real issue. The difference between that and the Young Offenders Act as it is now is that it will not be a case-by-case basis; it will be that this is the status for this province as opposed to that one.

Also, given the fact that the Canadian Bar Association has not taken a position on the renvoi a la cour d'appel, I will not go any further because that may well be an issue that is part of all that.

Senator Grafstein: In your brief your first recommendation is that the presumptive transfers not be lowered beyond the current level of 16 years of age. Whether that was constitutional, sociological or practical is another question, but at the end of the day we find ourselves in the same position, which is, if in fact we do allow a quiltwork of applications in this new code, in effect, we end up not meeting your first recommendation. You obviously have concerns about clause 61. That is your first recommendation.

Ms Schurman: Correct.

Senator Grafstein: Let me just deal with that.

[Translation]

Senator Nolin: I trust you will get back to us on this, Ms Schurman. I would not want you to be prevented from giving us a legal opinion because it might be used by the Quebec courts or simply because there is a case before the Quebec Court of Appeal.

Ms Schurman: Of course not, but I cannot give you a personal opinion today. I will check to see where the Canadian Bar Association stands on this matter.

Senator Nolin: I understand. I merely said this because you alluded to the fact that the matter was before the Quebec Court of Appeal.

[English]

Senator Grafstein: I agree with you. It is fact that the courts should not prevent us from giving a legal opinion - to the contrary.

[Translation]

Ms Schurman: If the Canadian Bar Association takes a stand on this matter, it will do so before the Court of Appeal and perhaps it will then agree to share its position with the committee.

Senator Nolin: Yes, but if, for some reason, you decide not to take a stand on the matter before the Quebec courts, this is no reason for not answering our questions. I simply want us to be clear on this issue.

[English]

The Chairman: Senator Grafstein has raised a very important point. What we really need to know about this matter is whether clause 61 of this act is a delegation of the federal power? The Supreme Court has declared that it is unconstitutional to delegate federal power. We cannot do so.

Senator Grafstein: Let me turn again to your first recommendation, which obviously is troublesome. Let us assume that I am wrong, and that clause 61 is constitutional - and I do not believe it is - from a criminal justice standpoint. Bearing in mind that a minor is different from a major, you have clearly said that the scope of clause 61 in its definitional terms is much too broad; it takes in impaired driving, bodily harm, a fight between teenagers in a classroom or a playground; it becomes a presumptive crime, criminal negligence causing death.

Again, I do not have any problem with murder. I do not have any problem with kidnapping, but surely the criminal law has been brilliant in giving layers of responsibility to serious crimes. Here we have wiped it all away.

Instead of having graduated powers here, we have decided to give all the power to an Attorney General of a province to decide practically almost anything is a serious crime. Is the scope not much too broad and not in keeping with the careful degrees we have within the Criminal Code? I am talking about the profound philosophy behind the Criminal Code. I just wonder how strongly you feel about that.

Ms Schurman: I am not certain. First, are you referring to clause 62?

Senator Grafstein: I am referring to page 7 of your brief.

Ms Schurman: The brief from the House of Commons.

Senator Grafstein: It says the following:

Impaired driving causing bodily harm, impaired driving causing death, criminal negligence causing bodily harm, criminal negligence causing death, sexual assault, aggravated assault, robbery, kidnapping, unlawful confinement, extortion, residential break and enters, and weapons offences all potentially fall into this category and are therefore subject to presumptive transfer ...

That is a broad power for minors.

Again, we are into the whole question of specific intent, mens rea, which, to my mind, is difficult. If it is too wide sweeping - and I tend to agree - how do we limit the application of the presumptive offences? Where would you draw the line for us?

Ms Schurman: Our big problem at the time of the writing of this brief was the definition of "serious violent offences." At the time, it included more than what the amended version now includes. We have a problem with the three offences and even with the new definition of serious violent offences. We do not believe the system should proceed that way.

The new definition limits some of those offences that might fall into that category. We are not sure the problem is with the definition. It is with the whole concept of the three strikes. Even if the definition is limited to go to a higher category - and this brief referred to the pre-amendment text - we still have a problem with that section because we do not believe the youth justice system would be going to a "three-strikes-you-are-out" idea.

Senator Grafstein: It would be useful if you would give it to us in writing so we can look at it. It is difficult to deal with principles. Tell us where you draw the line and how.

Senator Nolin: We have in front of us a brief that the Canadian Bar Association submitted to the House of Commons. The bill has been amended since. In your letter, you say that some of your recommendations are different because of those amendments. Can we have from you a text with the recommendations of what you do and do not maintain?

Ms Schurman: It will be our pleasure.

The Chairman: I do remind senators that the witnesses are here on very short notice.

Senator Grafstein: We are looking for help here. We are not being critical.

[Translation]

Senator Nolin: You may be the most important witnesses that we are likely to hear from. You will be the ones working with the legislation enacted by Parliament.

[English]

Senator Pearson: My questions are to the Barreau du Québec. One question arises out of curiosity and the other one is seeking clarification.

I am curious about the statistics presented to us about the number of cases, the number of children charged, and so on. Is there any particular reason for the fact that Quebec has transferred more young people to adult court than any other province, except Manitoba, for two years in sequence? Were there special conditions in which a group of young people were particularly active, or is there some other kind of explanation?

[Translation]

Ms Brosseau: Unfortunately, I cannot give you a clear answer as to the number of cases or how they were resolved. One case that comes to mind is that of the young person who murdered his entire family while he was still in high school. I believe his name was Martin. However, I cannot tell you for certain. The enormity of the crime was certainly a determining factor in deciding to transfer his case to adult court. This is not the only such case, but I would have to verify the information.

[English]

Mr. Gervais: For more precision, are you asking us if something special happened? For example, could the involvement of 13, 14 or 15 kids in one incident explain the fact that in one specific year something special happened? Is that what you are asking?

Senator Pearson: There were two years.

Mr. Gervais: You are asking if there is something specific like that? To that question we have no answer.

Senator Pearson: The statistics suggest that Quebec has used the YOA for transfer to adult court a certain amount in comparison with other provinces.

Mr. Gervais: There is nothing special that we can bring up to explain it. There are no special examples, cases or circumstances in which many people were involved. Nothing comes to mind.

Ms Schurman: If it would be any help, I had occasion to meet with several of my colleagues who do what we call "high volume practices" in Youth Court. I remember being surprised to hear a number of them say they asked for it. Many young people who are near the limit prefer the conditions they will receive in the adult system. They are not contested hearings. There is a high percentage of requests, apparently. It is hearsay, but I remember being put in my place by one of my colleagues with a high volume practice who said it is nothing to complain about. It is the choice of the client. It is a factor to be considered, whether it is being chosen or whether these are contested hearings. I do not think they are.

Senator Pearson: You have brought up the issue that has been raised before when we looked at the amendment to the Young Offenders Act in 1995, which was that in many cases, the treatment in the adult system is better for kids than it has been in the juvenile system. It is an issue to think about, so we can nuance our reaction to some of these things.

You raised something else I had never heard. You felt that under this new law it would be possible for insurance companies and stores - where would you find that as a reference?

[Translation]

Ms Brosseau: I can give you the exact clause reference. It concerns access to records. The clause stipulates clearly that police officers may disclose information to an insurance company. In turn, that information will be widely disseminated. Clause 125(4) reads as follows:

A peace officer may disclose to an insurance company information in a record that is kept under section 114 (court records) or 115 (police records) [...]

That means that information concerning measures taken, even warnings issued, is contained in these records.

[English]

Senator Pearson: For the purposes of investigating a claim, these are discovery situations. I am really puzzled here.

Senator Grafstein: It is regarding theft or damage to property.

Senator Fraser: This proposed section states that a peace officer may disclose to an insurance company information for the purpose of investigating a claim arising out of an offence committed or alleged to have been committed by the young person. This is for the purpose of the insurance company's investigation?

[Translation]

Ms Brosseau: No, as part of a police investigation.

Senator Fraser: It would be requested for the investigation of a claim arising from an offence committed by the young person?

Ms Brosseau: That is right. One has to understand that the police records contain information about the investigation.

Senator Fraser: Right.

[English]

Senator Pearson: I understand it already existed in the YOA.

Senator Fraser: I am trying to understand what it says here.

[Translation]

Take the example of a young person who breaks my window. The police officer could disclose the name of the offender to the insurance company? Why does it need to have that information?

Ms Brosseau: Because insurance companies are the guardians of the rights of the victim.

Senator Nolin: The Barreau's argument goes further than that. From the moment this information is placed in the insurance companies' records, the law cannot prevent its subsequent disclosure. Is that correct?

Ms Brosseau: Yes.

[English]

Senator Pearson: This was not in the existing act so it is something that has not changed.

Senator Beaudoin: Do you disagree with that? Is that the position of the Barreau du Québec?

Ms Brosseau: Yes.

The Chairman: Would this probably be related to car accidents, then?

Senator Grafstein: Any property offence, but it does not say that. It is not limited.

Mr. Gervais: It could be also for a personal thing, if someone suffers from some kind of prejudice.

The Chairman: This provision already exists.

Senator Grafstein: I think it has been broadened. We must compare the two. It strikes me that this is broader. These are not even crimes; these are allegations.

Ms Schurman: I refer you to section 44.2 of the present Young Offenders Act, which states:

44.2(2) A peace officer may disclose to an insurance company information in any record that is kept pursuant to section 42 for the purpose of investigating any claim arising out of an offence committed or alleged to have been committed by the young person to whom the record relates.

The Chairman: It is word for word, then.

Ms Schurman: It would appear so, yes. That may well be why we did not treat it. I was wondering why we had not treated it, and it could well be because it was done word for word, I don't know.

The Chairman: It is not a new provision.

Senator Pearson: I wanted to know if the issue of confidentiality was one we needed to explore further.

Senator Joyal: On a supplementary question, on the first question asked by Senator Pearson, could our witnesses come forward with an additional explanation taking into account what was raised? I think it is an interesting element. Is it possible for you to come forward with some additional information?

Mr. Gervais: To be sure, the question was: Is there a reason why, in Quebec, the number of referrals seem to be higher?

Senator Joyal: That is in the last two years.

The Chairman: That is probably the last two reported years.

[Translation]

Senator Beaudoin: It is possible to get an answer?

Mr. Gervais: We can always look, but I do not know if there are any answers.

Ms Brosseau: I will have to check with the Justice Department and with the Attorney General to see if there are special grounds.

[English]

Senator Moore: I want to pursue the issue raised by Senator Fraser with respect to the publication of names. Yesterday, we had before us witnesses from the Canadian Resource Centre for Victims of Crime. Their position is that a community has a right to know the identities of youths who commit serious crimes. It even suggested that such names should be placed on CPIC.

The Barreau du Québec say that the young person's identity must not be disclosed where that person is kept in the youth system and that is consistent with the international rules regarding respect for young people's privacy.

I got these briefs just before we came in here today. I did not see anything in the brief of the Canadian Bar Association with respect to that. I may have missed it. In any event, the Canadian Resource Centre for Victims of Crime thinks that the publication of such names is important in those crimes because of the responsibility and accountability factors that they see built into such publication.

I would like to hear from both organizations as to what your position is and how it jives with the position of that responsibility and accountability, those factors, as enunciated by the witnesses from the Canadian Resource Centre for Victims of Crime.

Ms Schurman: Although you did not see it in the materials, I alluded to it earlier. Our position is that the present scheme under the Young Offenders Act allows for an application to be made by the Attorney General, by a police officer or by certain groups of interested parties, if there is a real reason to believe that the security of a person may be in danger or for the protection of the public. There are certain criteria in the law as it stands. The Canadian Bar Association believes that this present scheme was adequate and that it was the best way to approach the whole problem, because the judicial discretion, which we feel is so important, would come into play to decide whether or not there is a need for the name of a certain young person to be made public. We are more than a little concerned about the targeting of young people by angry citizens in very difficult situations. We are very concerned about provisions that might make it easy to make up lists of those young people who should then be stigmatized for the rest of their lives; people who, perhaps, should not be stigmatized for the rest of their lives. Although it was in the memo, our view is that this system protects everyone adequately if it is used according to the letter of law.

[Translation]

Ms Brosseau: If I can return my colleague's favour, the provision in question is section 44 of the Young Offenders Act.

[English]

The Chairman: I have a question before we come to a second round. Yesterday, both our witnesses suggested that this law would be all right as long as we took a second look at it somewhere down the road. They then suggested a five-year review period. Would this lessen any of your concerns with this bill?

Ms Schurman: We have seen that in the past, with the Corrections and Conditional Release Act. We have seen that five-year review process. It is not a bad idea. However, it may not solve some fundamental problems if the senators, or whomever, come to the conclusion that some of the problems raised by one side or the other are not so fundamental. A five-year review may not correct or alter that. However, it is not a bad idea because there are also a lot of smaller amendments that none of us have even thought of yet that will arise along the way and those will need to be addressed.

[Translation]

Mr. Gervais: Our position is similar to that of my colleague. Obviously, no one objects to a five-year review, but what act are we planning to review? If we are talking about the bill as it is now drafted, there would be no point in doing that. We would merely be going around in circles. However, if the legislation is amended extensively, as Senator Beaudoin mentioned at the outset, we would of course still be interested in reviewing it five years down the road.

People have often referred to the Quebec system. It should be remembered that the Quebec system operates on the basis of a federal piece of legislation. We have made different arrangement using the same act. We have adapted two additional principles to the act. The way in which the legislation's provisions are applied and the people who apply them make all the difference in the world between a youth justice system and an adult justice system.

[English]

The Chairman: This legislation makes it easier to adapt to the province, does it?

Mr. Gervais: This legislation that we have does make it easier, but the one submitted to us does not.

Senator Joyal: From your presentation, I understand that some of your recommendations take into account your interpretation of the international instruments that relate to the status of the child. You mentioned the child convention and the related rules.

[Translation]

Have you conducted an overall study of the obligations stemming from the application of these provisions in the context of the youth justice system?

Ms Brosseau: Our submission contains a detailed summary of these obligations. We identified those obligations which we felt did not correspond the ones undertaken by Canada.

We have not, however, identified these obligations in a systematic way. We could do so by referring to the Convention on Civil and Political Rights. We looked at the international convention on human rights and at the Beijing Rules which apply specifically to young persons. From the standpoint of international law, in order to do a profile and a comparative analysis, we would need to take a systematic approach and consult additional conventions.

Senator Joyal: And you have not done that to date?

Ms Brosseau: No, not in any systematic way. We referred to the provisions of the international convention on human rights and to the Beijing Rules.

Senator Pearson: I will to check to see whether the report submitted by Quebec to the Committee on the Rights of the Child makes mention of any reservations.

Ms Brosseau: It draws considerable inspiration from our report on Bill C-3 and Bill C-7. Reservations are listed along with the provisions which we feel are inadequate. Were you asking for a comparative table of some kind?

Senator Joyal: A comparison between the philosophy behind these international instruments and the actual provisions in the bill.

Ms Brosseau: Generally speaking, we do this kind of comparison. We have identified the provisions which, in our opinion, stand in violation of international conventions. However, we have not drawn up a comparative table as such. That could be done, but it would mean a considerable amount of work for us. When exactly would you be wanting that information?

Senator Fraser: What do you mean by the Beijing Rules?

Ms Brosseau: A specific set of rules respecting the incarceration of young persons and various issues affecting young persons were adopted in the course of international meetings. These rules are not exclusive to young persons. Some of these international meetings were in fact gatherings of women.

Senator Fraser: These rules are used then to interpret conventions?

Ms Brosseau: Precisely.

[English]

Senator Pearson: It is an agreed upon language. It is not a convention.

[Translation]

Ms Brosseau: The scope of the rules is not the same. I could give you a brief summary.

[English]

Senator Joyal: In the same context, since the Canadian court will have to study this issue, do you know of any comparative analysis that has been made between our system of youth justice and other western democracies with youth justice systems? This of course would be in countries that may have signed or ratified those international conventions. The whole analysis of comparative basis, as you have said in your presentation, is a very important element to determine if we comply with the spirit of those conventions.

The conventions are more than just a stack of sections, there is a whole philosophy behind those conventions. It is very important that we try to ensure that the way in which Canada implements a youth justice system respects the international conventions. Our domestic efforts must reflect the general objectives that we promote internationally.

[Translation]

Ms Brosseau: That is a very interesting question. We have not done that.

[English]

Ms Schurman: I would imagine that that kind of information on comparative studies must be available at the Department of Justice.

Senator Beaudoin: It may be available at the Library of Parliament.

Senator Pearson: In Latin America, the question does not even arise, because in many cases, the age of criminal responsibility is 18 years.

The Chairman: We will hear from department officials who will provide that material.

Senator Beaudoin: I would like to ask a question of the witness from the Canadian Bar Association. Has anyone prepared a study on the constitutionality of the bill?

Ms Schurman: I am informed by Ms Thomson, who is at Head Office of the Canadian Bar Association, that they are currently trying to determine whether the CBA will request intervener status, or intervene in some way at the renvoi at the Court of Appeal.

[Translation]

Senator Beaudoin: I will put the same question to the Barreau du Québec. A matter that has been referred to the Quebec Court of Appeal will now be heard by the Supreme Court. Is the Barreau currently doing a study to ascertain if these provisions are constitutional or not?

Mr. Gervais: I cannot say if it is doing an empirical study, but the presentation does touch on whether certain components of the legislation are in fact constitutional. However, a general review of the constitutionality of the bill has not been conducted.

[English]

Senator Grafstein: Chairman, it is an old saw. You are familiar with this, as are other members of the committee. Drafting preambles with questions of principle are unnecessary and contradictory, and they are a licence for lawyers to make money, rather than provide certainty about the meaning of the legislation.

Both briefs state the same thing. Would the bill not be improved if both the declaratory sections and the preamble were removed?

Ms Schurman: It is not a question that we can answer in writing.

Senator Grafstein: You both said that those parts are contradictory, litigious, uncertain and they go against the provisions. What do they add, other than confusion? There is no preamble in the Criminal Code.

Mr. Gervais: Senator, your questions are our comments. We are saying, in fact, "do not just read the preamble and insert interpretation clauses, but read the legislation." It is up to you if you want to keep it in the bill. We are giving you our comments as to its usefulness.

Senator Grafstein: For greater certainty it would be simpler and more certain if both the preamble and the declaration of principles were excised from this bill.

Ms Schurman: That is true except that there may be those circumstances that Mr. Gervais referred to this morning. In certain exceptional circumstances, where a question arises that is so unclear, that perhaps they could go back there to try to understand what was meant. Perhaps it will not seem as contradictory as it does to you today, and it will seem clearer in the particular context of the specific problem.

The Chairman: Thank you to all witnesses for appearing before us today.

The committee adjourned.