Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 13 - Evidence for October 24, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-7, in respect of criminal justice for young persons and to amend and repeal other Acts, met this day at 3:55 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I wish to welcome our newer members to the meeting.

Today is our eighth day of hearings on Bill C-7, the Youth Criminal Justice bill. To date, we have heard from 10 panels totalling more than 30 witnesses. We are about halfway through the witness list. There is much interest in this bill.

We welcome our first panel. Please proceed.

[Translation]

Ms Cécile Toutant, Member, Board of Directors, Canadian Criminal Justice Association): Madam Chair, I would like to introduce you to the Canadian Criminal Justice Association, which has 1,200 members. Although I speak French, I represent a Canadian association which covers the entire field of criminal justice, including issues pertaining to men and women, youths and adults.

The Canadian Criminal Justice Association has always been very concerned by the treatment given to prevention and the application of justice, both for adults and youth. Bearing these concerns in mind, I will briefly summarize the Canadian Criminal Justice Association' presentation.

I hope that you will not be like old priests who have heard the same sins confessed to over and over again and who are no longer listening. I was wondering how I could make myself understood by people who have perhaps been hearing the same thing for many days.

You probably know this already, but I would like to begin by summarizing the background of our youth criminal justice legislation.

In the early 1900s, in the United States, there was a group of women who were particularly interested in the well-being of children. They felt that it was absolutely essential to influence the way our society responded to youth crime. Special youth courts were established, something that had not been done before. Youths used to be treated as adults. It was felt that this was not a very good way of dealing with the problem and that it was essential that youths be dealt with in a very different fashion.

Accordingly, in 1908, Canada established courts for young people that we now call youth courts. The judge was to act as a father figure. That gives you a good idea of how we used to intervene. The judge was a good family man and the children were the result of a faulty education. Up to a certain point, children were viewed more as victims than as people responsible for their actions.

When I began practising in 1969, the Juvenile Delinquents Act was in force. The courts concerned themselves a great deal with the needs of the children, but in time some weaknesses surfaced. Young people had very few rights. We looked after their needs. Sometimes we would decide to waive charges, saying that when the youth left the system, if things were not going very well, we could lay the charges then. Legally speaking, this was not the best way to protect children.

We slowly headed towards the Young Offenders Act. Planning for this legislation began several years before it was enacted in 1984. It is important to remember that this act standardized throughout Canada the maximum age at 18 for appearing before the youth court. Previously, did this not exist. Only Quebec and Manitoba had set the maximum age to be considered a youth at 18. This is very important when you consider the availability of resources developed in the provinces. Prior to 1984, some provinces had had no obligations to look after young people who were 16 or 17 years old. These young people were in the adult system. In our opinion, the Young Offenders Act struck a good balance between meeting the needs of young people and public protection. We needed to make young people more responsible for their actions instead of leaving them in a situation where they were viewed as victims and not as individuals responsible for their actions.

Lawyers began appearing in the courts. They were not necessarily present beforehand. Up until 1984, it was possible to arrive at court and find out that the lawyer was busy in another chamber. Decisions were, however, made concerning young people. This legislation had many positive aspects to it.

Why does Bill C-7 worry us so much? In the days of the Juvenile Delinquents Act, the courts were the realm of the social workers. With Bill C-7, the courts will become the realm of the lawyers. I do not think that I have to prove this to you. It is true that this bill contains a lot more sections than the Young Offenders Act, but it is not only about the number of sections: it is the frightening number of procedures contained in the bill, which will lead to very lengthy in applying youth justice. It is a system that is getting farther and farther away from a youth justice system. There are complicated procedures, lengthy delays and the type of offence is given far too much importance compared to the needs of the youth. Throughout the bill, a big distinction is made between minor offences and violent offences. But who are the young people behind these offences? The offence is a label. Several of you sitting in this room could have been charged with speeding at 6:00 p.m. today but your reasons for doing so might not necessarily have been the same. There are all kinds of explanations. When you focus solely on the label, that is a big source of concern. Later on, I will be speaking on behalf of the Philippe Pinel Institute where I work with young people. I will go back to this concept of offence.

We totally disagree with the presumptive offences that automatically result in the imposition of an adult sentence. We need to take the offence into account, but once this has been done, we have to look at the needs as well. There should be no automatic procedures because, basically, lengthy futile delays can be used to circumvent presumptive transfers and presumptive offences.

I would like to go back to this issue of automatic release after two-thirds of the custody when I talk about violent youth.

I would now like to cover transfer once treatment has begun. The idea of beginning treatment in the youth system and then transferring everything over to the adult system once the youth has reached 18 or 20 years of age is inconceivable. Later on, I will deal with the treatment of violent offenders.

As regards the conditional supervision provided for in the legislation - depersonalized conditions that are applicable to everyone - in our opinion, since people do not all have the same problems, they do not all need the same conditions. These are measures that will make it difficult to personalize follow-up treatment for young people.

The Canadian Criminal Justice Association clearly says that the legislation will be excessively costly to apply. People will need to be trained. There will have to be numerous appeals in order to define the terms of this legislation. Unfortunately, all of the terminology that was contained in the Young Offenders Act was removed from this legislation. Words were changed; however, we do not know why because, in many cases, they reflect the same realities. Youth court sentences, specific sentences, adult sentences, extrajudicial measures, et cetera. I will not bother with the rest of the list, but there is a whole series of terms that we are going to have to learn. We are going to have to appeal cases in order to get a more precise definition of the act. As far as this is concerned, we would like to send you this message: would this money not be better spent if it were invested in resources at both ends of our juvenile system? Here, I refer to resources outside the institutions because we need them and we favour them when it is possible, but not in the form of automatic procedures and resources for the most difficult young people. In Canada, these are the young people who constantly fall between the cracks because they have neurological disorders caused by the fact that they were born of alcoholic or drug-addicted mothers. These children have impulse problems, nobody wants them and they wind up in adult penal institutions because we don't have the resources in the youth courts.

It costs a great deal of money to draft new bills. You probably know how much this costs. We can live with the Young Offenders Act very easily. This act has perhaps had some problems, but these problems lay primarily in the area of application and public perception as opposed to problems with the act itself. Often, a single decision made by a judge determines how the public will view the law.

If, tomorrow morning, a judge were to decide to impose a three-year sentence on a young person, that does not mean that that is the maximum provided for under the legislation. In some instances, a 10-year sentence can be given under this legislation. In 1992, the Young Offenders Act was amended to establish a five-year maximum sentence. This amendment has never been used.

An act does not resolve problems. If things need to be changed, we need to use another means.

Mr. Jacques Dumais, Director of Youth Protection: I have been the Director of Youth Protection since 1993 in the Chaudière-Appalaches region, on Quebec's south shore. I also have responsibilities as the provincial director. In Quebec, as stipulated in the Young Offenders Act, the directors of youth protection carry out the duties of a provincial director.

Before becoming a director of youth protection, I was responsible for the young offenders program in the Greater Quebec City region. I helped implement the Young Offenders Act in 1984, a sector that I have been working in for many years. The directors of youth protection work in 16 youth centres in Quebec. I also represent the Association des centres jeunesse du Québec [Quebec Association of Youth Centres], which represents at least 1,500 front-line workers who are directly involved with young offenders. These are specialized teachers, criminologists and social workers. We serve approximately 23,000 young offenders annually in Quebec. I am the spokesperson for the Association des centres jeunesse, but I am also a director of youth protection and, as such, I deal with young people on a daily basis.

Basically, I would like to get four messages across to you. My first message is that we do not need another act to deal with young offenders, even the most hardened offenders. Even the statistics provided by the federal government show that there has been a general decline in offences committed in Canada, and there has even been a decline in the number of violent crimes over the past few years. We do not understand why we are being presented with a new bill.

Quebec, which has fully implemented the Young Offenders Act, can at least say that the charges laid against minors are half the Canadian average, namely, approximately 2.6 youths are charged with an offence whereas in Canada, the figure is 4.9. The same thing applies to custody placements, when a young person is taken out of his or her environment and placed in a group home.

In Quebec, 4.4 out of 1,000 young people are placed in custody whereas in the rest of Canada, the number is 10.5 out of 1,000 young people. We have less than half the number of custody placements although we must acknowledge that the custody placement is sometimes a bit longer in Quebec, given that it is reserved for young people who have committed slightly more serious crimes and who have been repeat offenders.

In Quebec, in 1995, there was the important report prepared by the Honourable Justice Jasmin, who said that the Young Offenders Act was a good piece of legislation but required improvement in the way it was applied. In particular, he drew attention to the delays in court appearances and to the need to harmonize the relationship between the various partners, social workers, attorneys and police officers, but basically, he said that this was a good piece of legislation. The report produced by Justice Jasmin was entitled: "Au nom et au-delà de la loi" (In the Name of and Beyond the Law).

"In the name" means that the legislative framework is important. "Beyond the law" means that there are factors other than the legislative context to assist young people, whether this be in the form of the expertise we have developed in rehabilitation, the group homes that have been developed in Quebec, the training of personnel, to name but a few. There is, therefore, something in addition to the law, but the fact remains that the legal context is important for setting the parameters around the way that we deal with young people in social terms.

My second message is that while we may be told constantly that this new bill will not change the way we deal with young offenders in Quebec, this is false.

It must be acknowledged that Bill C-7 does contain some aspects found in the current Young Offenders Act, in terms of the discretionary power of police officers, the alternate measures program which is now called extrajudicial sanctions, probation and custody. Some aspects of this bill have been taken from the Young Offenders Act. But let us not be fooled, this is not an amendment to the legislation, this is a new bill based on different values and a different philosophy from those contained in the current legislation. We are focusing more on the offence and less on the young person who has perpetrated the offence. Accordingly, Bill C-7 has, in our opinion, destroyed the balance that we have established over the past 15 years between the protection of society and the needs of young people. Because of this balance, we had some success with the Young Offenders Act and we don't understand why you want to change it today.

In our opinion, Bill C-7 has, essentially, two objectives: first of all, to provide harsher punishment for serious crimes, which is not always needed depending on the personal characteristics of the authors of these crimes. It is not true that everybody needs to be treated the same way. Second, as for the reduced custody, unfortunately, all the speeches that I have heard identify this as incarceration.

In Quebec, custody does not take place in a detention centre but rather in a rehabilitation centre. The rehabilitation centre is perhaps a place where a young person is temporarily deprived of his or her freedom, but it is also a place where we can give these young people an opportunity to change their behaviour and resolve some of their problems in forming relationships, more specific problems such as drug addiction or violence, with the support of specialized personnel. Let us stop comparing custody to detention and let us stop saying that this is an inappropriate measure. Yes, this is a severe measure for young people, but it is also a social measure that enables us to work with the young persons.

Bill C-7, by turning custody into a measure of last resort, that should be limited to those young people who have committed serious, violent, crimes or who have been repeat offenders, does not allow us to use the right measure at the right time. In short order, we may find ourselves in a situation where we have fewer efficient institutions, namely our rehabilitation centres, that are able to help the young people.

The third message that I would like to convey to you is that we are witnessing an unprecedented erosion of a distinct justice system for minors. Amendments were made to the Young Offenders Act in 1986, 1992 and in 1995. The purpose of all of these amendments was to make decisions pertaining to young people tougher. The length of the custody placements were increased twice. We introduced presumptive transfer for youth who have committed a specific type of crime. Every time that an amendment has been made, its purpose has always been to gradually make the youth system closer to the adult system. With Bill C-7, we are witnessing an even clearer desire to make the youth justice system similar to the adult system. We find the same terms in the legislation: sentencing, adult sentence, proportionality and harmonization of sentences based on type of offence, eligibility for parole, automatic release after serving two-thirds of the time. What we are really doing is excluding some young people from a system designed for them because they have committed a specific type of offence and are between the ages of 14 and 18. We have now broadened presumption to include young people who are 14 and 15 years of age.

Thus we feel that by changing the remand procedure that was and still is in the act, remands could be made to adult court. Now we are told that this will replaced by adult sentences. We think that the adult system is being introduced into the juvenile system. We find this much more insidious than remanding a young offender. All possible measures have been taken in this case in the juvenile system. When the failure becomes obvious, there may be another system to take care of it.

This is why we are told that it is perhaps not so serious because the decision will be made by a Youth Court judge. A part of the adult sentence could be served within a juvenile system. But imagine the confusion that will result with youth in our rehabilitation centres, where young people will sometimes be placed in custody as young offenders, and sometimes be put in with others serving adult sentences. I think that this will be the biggest mess we have ever seen in our youth assistance system.

And we could quite rightly worry about respecting the Convention on the Rights of the Child our country has signed, because our system makes less and less of a distinction for minors.

This bill is staggering in its complexity, even for experts! The current act has 70 sections. The proposed bill has 200. In the current act there is a declaration of principles with eight paragraphs; in the bill there are four declarations of principle and 32 paragraphs.

Can you imagine that with the eight paragraphs we had, we went to the Supreme Court to try to establish the relative weight of one principle as compared to the others. Now we are proposing a bill with 32 principles. Can you imagine how many cases will go all the way to the Supreme Court to establish the prevailing principle? There are also elaborate calculations involving sentencing that are better left to experts.

Despite more flexibility in Bill C-3, Bill C-7 is still unacceptable to Quebec because it is too focused on the offence and not enough on the youth committing the offence. This will have the following impact in Quebec: many more youths will be treated as adults, with all the automatic release mechanisms and such and there will probably be more repeat offenders because the right steps were not taken at the right time.

Mr. Serge Charbonneau, Coordinator, Regroupement des organismes de justice alternative du Québec (Quebec Coalition of Alternative Justice): The Regroupement des organismes de justice alternative du Québec is an association of 39 organizations in Quebec that employs about 150 interveners who work directly with youth, especially within the framework of the Quebec alternative measures program and following certain court orders for community work and improving social skills. These alternative measures have been adopted by judges and they have included them in their decisions. We supervise these measures. We work as partners with the Centres jeunesse du Québec.

During the past year, 11,340 young adolescents were entrusted to the 39 organizations that I coordinate.

I have been working with the Young Offenders Act since 1985. I also witnessed the changes. Our group regularly intervenes to say that there was no scientific foundation in criminology to show that the severity or the increase in the severity of sentences had any effect whatsoever on youth crime. I repeat once again that in our opinion, the current act has no scientific basis. The need for it has not been demonstrated, given the crime rates found all over other parts of Canada.

I do not want to repeat what was already said. We agree that the main problems with the current act are problems of application. We have been working for some time in Quebec on organizing another program of alternative measures. There is already a partnership agreement for reviewing the entire alternative measures program in Quebec. These new orientations are based on principles of restorative justice and will be applied starting in April 2002 in Quebec. Within the framework of the Young Offenders Act, we have all the tools to implement new provisions, new practices based on international trends.

Bill C-7 will be a step backward with regard to the emerging trends in most organizations in western countries. Most of the legislation adopted in western countries has given a great role to restorative justice. Let me speak about the restorative justice issue. It has not been given any more weight in this bill.

How do we currently function in Quebec when a young person is arrested? Let me illustrate. When the new act is implemented, how will we have to change practices in Quebec? We have said that Bill C-7 threatens rehabilitation practices in Quebec youth custody facilities, but I am telling you now that this bill is also a threat to the Quebec alternative measures program. Let me try to demonstrate this.

The bill creates a new provision, extrajudicial measures, whose principles are stated in clauses 4 and 5. In clause 6, extrajudicial measures and extrajudicial penalties are both included under extrajudicial measures. It took me a month to understand this, although I have basic training in law. There is a distinction between an extrajudicial penalty and an extrajudicial measure. One was included in the other, the bigger set is included within the smaller one in this act but that does not seem to matter.

Extrajudicial measures, unlike extrajudicial penalties, raise serious legal problems for youth. In Quebec, before the Young Offenders Act, we had voluntary programs that deviated from the law and became a source of abuse. Youths were deprived of their freedom without ensuring their defence by a lawyer and without necessarily recognizing their responsibility. None of the extrajudicial measures in clause 6 provides for recognizing responsibility or the right to be represented by a lawyer. Currently in Quebec, when a young person is arrested by a police officer, generally, police officers close 53 per cent of the files. They will send the remaining 47 per cent to the DAG. Once this is done, the substitute sends 60 per cent of the files to the provincial director, represented here by Mr. Dumais. He will then make a psycho-social assessment of the youth. Subject to a number of considerations, he will either decide to close the file because nothing can be usefully done for this youth or he will send the file back to the DAG who can either carry on with judicial measures or propose alternative measures. In Quebec, last year, 7,541 alternative measure agreements were signed between youth workers and youth. These 7,541 measures were supervised mainly by alternative justice organizations. They mainly involve community work, improving social skills and mediation between offenders and victims.

Tomorrow morning, when the law is implemented, a policeman who used to close 53 per cent of his files may decide to no longer close 53 per cent of his files because he is being offered a fantastic solution in the form of extrajudicial measures.

The policeman may not have 20 years of experience in assessing the psycho-social characteristics of young offenders and in supervising measures taken with young offenders, but he can and he must - as provided by the act - work within the framework of extrajudicial measures before working within the framework of extrajudicial penalties.

Also, extrajudicial measures are an exact replica of the Quebec alternative measures program. Now there is a new mechanism to be used before the alternative measures program, which is the program of extrajudicial measures.

This means that most of the young people who used to get off with a warning from a police officer - study and research on this matter showed that this was very efficient, sufficient, and free, and this included 53 per cent of all files - will now be the object of a series of interventions in many cases where interventions were note considered necessary before.

What will we do with the 53 per cent? The police officer can choose to issue a warning. He can do this without the young person recognizing his responsibility and without arresting the youth. There is no provision in the current act to force a police officer to get an admission of responsibility from the youth or to guarantee the right to a lawyer. This is a serious legal problem.

People are currently working on this. I am not an expert in these matters, but these problems will be raised when the law will be enforced and they will eventually amount to more than a mere grain of sand.

Whereas extrajudicial penalties provide for admission of responsibility and the right to a lawyer, extrajudicial measures do not provide for these things. What should the police officer do now? He used to close 53 per cent of these files, and redirect the remaining 47 per cent. What will happen with these? Obviously, he will keep 10 to 15 per cent of them. Given the fact that an entire network of acquaintances, advisory committees or justice committees is being created around him with friends and community organizations able to attend to youth, the police officer will tend to keep more cases and to hand them over to organizations.

This means that the expertise developed in the alternative measures program in Quebec will decrease and slowly become extinct. I do not mean that it will disappear completely, but we could easily forecast that within five or ten years, most of the cases involving minors will be dealt with first by the alternative extrajudicial measures program.

This program will become much bigger than the alternative measures program which has been universally recognized as a success and it will introduce two things: community organizations close to the citizens will be in charge of organizing and supervising the services and a provincial director with experience in psycho-social matters, with adequate skills to assess youth properly. Formerly we sought to bypass the judicial system, now we are bypassing things that used to be non-judicial with this new mechanism.

I have read in several documents from the Department of Justice, and, of course, the act does not state this outright, that the new bill is meant to be a way of introducing restorative justice. Let me tell you that the mechanisms of advisory committees or justice committees cannot guarantee the application of restorative justice.

Besides, Mr. Harris already said during a press conference that he much preferred justice committees because they are much more severe.

The introduction of justice committees, advisory groups and extrajudicial measures is perhaps a serious departure, a return or a sliding back towards private vengeance. Without supervision and without any guarantees in the act for the people concerned, these issues can lead to deviations from the law and abuses of power. We already experienced this in Quebec and the current bill has all the ingredients for it to happen again.

This bill is not based on any need, any necessity or any scientific basis. It contains legal principles that are out of keeping with current international trends. In it, several citizens have been introduced into its mechanisms without any checks or balances and without any guarantees as to the rights of the people concerned, and this is a major blow to the Quebec alternative measures program and to the Quebec rehabilitation program.

Senator Joyal: In the brief tabled by the Canadian Criminal Justice Association, in the middle of page 9 there is a very important title. It is somewhat related to Mr. Charbonneau's presentation.

And I quote:

There ought to be a separate justice system for youth.

At the bottom of page 10, there is an enumeration of elements contained in the bill illustrating the quote I have just read, including the imposition of new requirements in matters of procedure for the youth justice court; the imposition of adult sentences for youth between the ages of 14 and 17; provisions that are similar to gating, transfers to adult institutions; the probable increase in plea bargaining; the publication of young persons' names and the admissibility of certain statements by young people that may have been taken in contravention of the provisions of the Canadian Charter of Rights and Freedoms. Mr. Charbonneau illustrated how in practice the use of extrajudicial measures does in fact emphasize the predominance of the courts in the system.

How can the bill, in its design, both reconcile the rehabilitation measures, the principles of which are set out in the aims and at the same time, load the dice to the extent that we no longer find ourselves dealing with the juvenile justice system but rather a criminal justice system?

The title of the bill is quite clear in this respect; we are no longer dealing with a juvenile court as it used to be described. The juvenile delinquent must have a copy of the Criminal Code next to him to find out what he will be subject to.

I must admit that the definition of the severity of the act bothers me. I do not think that anyone would deny that a young person who has committed a voluntary homicide should be subject to a tough sentence. But the definition of almost all the offences in clause 62, judging by what we have heard from other witnesses, makes clear that these are presumptive offences resulting in two years or more. Furthermore, when you add them up, they cover almost everything included in the Criminal Code. Is this not in flagrant contradiction with the aims we pursue in international conventions, namely to recognize that a young person is not someone to whom we can apply the same standards of law or a standard equivalent to that for an adult?

When, through all sorts of devices, we place a young person at a level comparable to that of an adult, does this not amount to imposing upon him a sentence or obligations that he is not in a position to assume because he is not an adult? If he were an adult, he would be sent straight to the criminal justice system. When we put a young person in the situation of an adult, and that is something you see every day in your practice, is this not an additional burden since the law is of the view that he has not reached the level of emotional, psychological and human development that would make his responsibility equivalent to that of an adult?

I have trouble articulating how the legal standard that applies to adults could automatically apply to young persons. Or is this an attempt to reconcile the need to protect the public - the act aims to protect the public, that is clearly set out - and our necessary recognition of the rights of young persons? We are talking here about young persons. Those who are under 12 years of age are in a different category. How can we reconcile this and fulfil our obligations?

Ms Toutant: I would say it is particularly difficult to reconcile. I believe I said so at the beginning of me presentation. In the JJM decision in 1993 the Supreme Court clearly stated that even if one wished to take into account the offence and such consideration was necessary, when one was dealing with young persons, greater emphasis should be put on the needs of these young persons rather than the type of offence. Sometimes this could justify a placement that would not be in keeping with the gravity of the offence or a longer placement when, in other situations, the court might have called for a shorter placement. The Supreme Court clearly stated that by attempting to redefine the notion of proportionality, in matters involving young persons, to include people who are not mature, consideration must be given to the fact that their development is not yet complete and that we do have a responsibility to educate and support them. That explains why in situations of clinical intervention, automatic responses or solutions are frowned upon. This is not a reproach for you, Madam Chair, but the representatives of Pinel have not yet spoken.

In Quebec the Pinel Institute is well known. Perhaps the senators from other provinces are not familiar with it. I think it is important to say something about it. It is a forensic psychiatric hospital created in 1972. The department will soon be 30 years old. It is a department for violent youth. Even though it is a psychiatric hospital, the patients do not have a mental disorder. I can tell you that very seldom do you find young people with an outright mental disorder. They are mainly young people with serious behaviourial problems and serious psychological disorders. Since 1972, 700 adolescents have been assessed and treated in our unit which receives youth between the ages of 14 and 18 who have committed violent acts. I would like to say something about this because I intend to tell you about our reaction to this bill and our particular concerns in relation to it.

There are certain young persons who seem unable to benefit from rehabilitation services. Some clinicians will maintain that all adolescents can be treated, that they are happy to be in treatment, but in my view this is wrong. There are some who can be easily helped, who are willing to cooperate and there are others who will not submit to treatment. In Quebec, as elsewhere, some of them ask themselves to be sent to the adult system. And a young person of 17 who tells you that he does not want to stay may be transferred to an adult system. The person making the assessment may say that they do not know what to do with him, that several attempts have been made to provide assistance, that he has already had two previous placements in youth centres and that there is no reaction. They no longer know what to do and for that reason he can be sent to the adult system.

But among those we have in our care, I can tell you that there are some cases where prognosis is excellent. Sometimes it is with the young people who have committed the most terrible offences. I always tell journalists that young people do not commit elegant crimes. I do not know how I should put it but young people go fiercely at their victims, they do not turn up with a firearm and commit a nice clean crime. They are guilty of hair-raising offences. We have several of them.

The media always describe these offences but they do not talk about the person behind them or the kind of environment that shaped the child. We know that problem teenagers did not grow up free of outside influences. The 11-year-old children who killed the child in England had previous experiences we never heard about. We heard about the details of their crime. In other words, those who commit very serious offences, offences that provoke an outcry and that are given heavy play in the media, do not necessarily mean a bad prognosis, quite the contrary.

When it comes to the prognosis for rehabilitation, it is said that the most difficult ones are those who have developed a criminal lifestyle, those with repeat offences. Some of them start at the age of seven. When they are seven years old, they wait for their father on the steps of a hotel and very quickly they start committing offences. Once they reach the age of 17, it is not an easy matter to provide them with treatment because their lifestyle is one of delinquency.

A young person who has gone to school, who has got into trouble and who has not solved his problems and explodes in a very visible crime does not have the worst prognosis, quite the contrary. Research has shown this. For those who do not have a record, even if they commit a murder, repeat offences are very minimal and very seldom violent. I see young people we have treated and who are managing very well, far better than young persons who have committed crimes against property.

I would have liked to have come along with one of my former clients. What I mean is that they are not monsters. Unfortunately, with this bill, all the automatic responses I referred to previously do constitute a danger: the presumption of an adult sentence for certain offences, the two-thirds treatment, a third which removes all the flexibility in the approach - I could give you many examples where this will have a harmful effect - as well as the publication of names. There is nothing to be gained from the publishing of names except a few points in the record of the most delinquent who will be able to boast about having his name in the newspaper four times. In our opinion, the publishing of names will have no positive effect.

[English]

The Chairman: Madame Toutant, you have answered a question for a committee member who is absent today, about publication of names. Unfortunately, that senator is sitting this week on the anti-terrorism pre-study. You have answered her question, even though she was not here to ask it. Thank you.

Senator Wilson: A day or two ago, there was a presentation on this bill by First Nations people. They were not francophone First Nations, but they did mention that the goals of this bill are not the goals of justice as seen in their Aboriginal communities and culture.

Quebec has a large constituency of Aboriginal people. How do you relate to them? Have you consulted with them on this bill? What is the relationship there? For example, this bill requires that the parents attend at the sentencing of a juvenile, showing no understanding that the parents may live miles away and have no transportation available. Can you comment briefly, for my education?

[Translation]

Mr. Dumais: We have some Amerindian communities in Quebec that provide basically the same treatment to young offenders as the rest of the population of Quebec. The Director of Youth Protection looks after these young people. But if you go to northern Quebec, they are starting to apply a different sort of justice system, more along the lines of a sentencing circle. These nations are starting to adopt a different way of treating young persons. Amerindian communities closer to urban centres, such as the Attikameks in Sept-Îles, in Mauricie, in the centre of Quebec, receive basically the same type of treatment, sometimes with more alternative measures adapted to young people. Depending on the environment, we can make proposals relating to the appropriate treatment of these young persons and the type of measures that could applied. In northern Quebec, I am less familiar with the kind of treatment being provided. Even the application of the Youth Protection Act is different, as well as the application of the Young Offenders Act.

Mr. Charbonneau: Some years ago, Quebec prepared the Coutu report dealing with the approach of the Quebec Department of Justice. In First Nation communities the department set up individual organizations that would look after responsibilities relating to the administration of justice. It was noted that in non-Aboriginal environments, Quebec did have the appropriate institutions, as well as partnerships with community organizations and public institutions. In the Aboriginal communities, in the First Nations, the culture is different. In several of these communities, people take part in an exercise aimed at identifying the community values, in spite of the legal framework, and their reaction to criminal behaviour. We then work with them to enable them to take on the responsibility for the administration of justice as part of court diversion. We work on developing family councils as well as healing and sentencing circles. The Aboriginal communities are in the process of taking over these responsibilities. This is the kind of work we are doing at the present time.

[English]

Senator Wilson: There is some openness to a different cultural perspective within your own understanding, then.

Senator Grafstein: Thank you, witnesses. I found your briefs very persuasive. It seems that you all agree that this bill has no new value, that it might be counterproductive vis-à-vis existing practices that are beneficial and that, at best, you think that perhaps the new monies that will be deployed here should be deployed under the existing system. Is that a fair summary of your evidence?

Ms Toutant: Yes.

Senator Grafstein: In addition to that, you say - I am not sure which of you is responsible for the brief from the Organization of Alternative Justice in Quebec. I found another answer to the bill on page 12 of your brief. I will just refer you to it; you do not have to refer to it. The other rationale for this bill is that victims are not fairly treated under the existing regime, that somehow victims must be treated better. You suggest something here that is interesting. You say, on page 12 of your written brief, the following: "In the United States and Canada, there are already a number of mediation programs which bring together victims and inmates who have been convicted of serious offences."

There are remediation programs dealing with victims. How has that worked?

[Translation]

Mr. Charbonneau: On this point, there is a great deal of research that demonstrates the efficiency of victim-offender mediation. We can send you this research. There is a great deal being done and it is continuing. The new alternative measures program in Quebec provides that mediation will be the first measure to be implemented. Mediation accounts for about 10 to 15 per cent of the alternative measures in Quebec. According to our forecasts, we can expect mediation to account for approximately 40 per cent of the alternative measures program. That is the way things are developing in Quebec. There is unanimous agreement about this direction. Most of the institutions and organizations have adopted it. It is based on research demonstrating both its efficiency and its profound effect on the victim's feeling of justice.

[English]

Senator Grafstein: I come from Ontario. Having examined your system and objective, I found it to be publicly much more conducive to therapeutic, restorative and preventive justice than the criminal model anywhere in Canada. I think you have made an overwhelming case for it.

Having said that, I want your advice on two other matters. I am now addressing myself to the Association des centres jeunesse du Québec. Is that you, Mr. Dumais? Turn with me to the last page of your brief. Just give us some assistance here. If you cannot answer now, we will accept a written response.

You say two things. First, you say the following:

...we cannot subscribe to a youth criminal justice system which presumes that adult sentences will be imposed on young persons of fourteen and we wonder how this provision can be reconciled with the provisions of the United Nations Covenant on the Rights of Children.

Can you give us more precision as to why you say that? We have heard other evidence, but I am interested in your view.

[Translation]

Mr. Dumais: In the convention signed by Canada, the Convention on the Rights of the Child, article 40(3) says that the States will attempt to promote the adoption of laws, procedures, the setting up of authorities and institutions specially designed for children who are suspected, charged or convicted of offences against criminal law. We have set up such a system. I'm referring to the Young Offenders Act. As Senator Joyal noted, they are not adults but they are young persons in the process of development. Different measures must be applied, they must be treated differently from adults.

[English]

Senator Grafstein: You are saying that taking a 14-year-old child and presuming that he should be dealt with under the adult criminal system is a breach of the United Nations Covenant on children's rights. Is that your position?

[Translation]

Mr. Dumais: We believe that this bill has been given the connotation of an adult criminal justice system. The distinctiveness of its beginning in 1984 is increasingly diluted. As Ms Toutant noted, one of the effects of this is the greater number of automatic responses: for such and such a crime, there is a specific sentence; in view of the sentence, the release will take place at a given point, whether or not the subject is ready to leave the rehabilitation centre. We know that young persons are in the process of development. We should take advantage of the fact that young people are minors to impress upon them the path that they should follow.

[English]

Senator Grafstein: I do not want to interrupt, but you say that this is a breach, in your view, of the United Nations Covenant on the Rights of the Child? This differential treatment for children?

[Translation]

Mr. Dumais: We consider a number of young people between the ages of 14 and 18 who have committed a particular type of crime as adults.

[English]

Senator Grafstein: I just want it for the record. I do not agree with it, but I do not want to give evidence here.

Finally, I am very interested in this proposition because it accords with my own view. You state at page 2 of your brief, in your third example, that you cannot accept a different application as between provinces of the fundamental principles of this legislation. You ask how we can possibly explain to young Canadians from east to west that they are treated differently under identical circumstances?

[Translation]

Mr. Dumais: The application of the present act has been variable throughout Canada since its coming into effect. Let us just take the case of the alternative measures program. In Ontario, in the past several years, young persons of 16 and 17 have been sent to a prison annex where the staff belong to an adult penitentiary establishment.

In Quebec, we have rehabilitation centres where the staff include specialized educators, social workers and criminologists who work with young people. We often have a ratio of one educator for three young people to ensure appropriate follow up for all of the youth in our rehabilitation centres. The activities during their stay in the rehabilitation centre include discussion groups on violence, alcohol consumption or drug addiction. I realize that not all provinces provide this treatment.

[English]

Senator Grafstein: Just to conclude, and I do not disagree with what you are saying, there are different therapeutic models in each province; that is obvious. However, lowering the age from 16 to 14 means what? I do not want to lead you here, but I sense that the lowering of the age, as you refer to clause 61, leads us to a certain conclusion. Is that the basis of your third example, that one province can use age 14 and the other province can use 16? Is that the conclusion?

[Translation]

Mr. Dumais: Bill C-7 now provides some discretion to the provinces about whether or not to apply the presumption of an adult sentence for 14- to 15-year-olds, even if the act states that there is a presumption for 14- to 18-year-olds. The provinces will have to take a stand if this bill is adopted. We may find ourselves with a different system of justice according to the provinces since the presumption of an adult sentence will start at the age of 16 in some provinces and may begin at the age of 14 in other provinces. By attempting to conserve the particularities of the provinces we may find ourselves with a system that is far from being consistent throughout Canada.

Senator Nolin: In the brief you presented to the House of Commons in February 2000, the second part strikes me as being important. I do not find it in your present brief. I will read you the title: "The Quebec approach after 50 years of efforts and close consultation for the development of an integrated services network for potential or actual delinquents." I think that the few pages of this document are a very good summary of the principles that you do not find or that you consider to be jeopardized in Bill C-7. Do you think it would be a good idea to distribute to us, in both official languages, this particular document? If you have only the French text, we can have it translated.

[English]

The Chairman: Thank you. We will see that everyone gets a copy of it.

Senator Poy: I would like to continue on with Senator Grafstein's comments about the way Quebec deals with criminal justice as being the best in the country at the moment. What you have said is very persuasive.

You also said that there are alternative measures in each province. Does that mean that, even if Bill C-7 is enacted, each province will act as it has always acted? The province can proceed with whatever is perceived as right for that province; correct? I need to understand that. I do not have legal training.

[Translation]

Mr. Charbonneau: The act repeats the provincial discretion in relation to the establishment of an alternative measures program or a program of extrajudicial sanctions. If there is a program of out-of-court sanctions, then it will have to be adopted by the government of each of the provinces. It does not change the law which remains in effect.

However, the introduction of extrajudicial measures threatens the alternative measures program or the extrajudicial sanctions program. That is more or less what we were saying. No province is forced to establish this outside of Quebec. Of course, we will have to do something with the extrajudicial measures, but no province is forced to establish an extrajudicial sanctions program. Each of the provinces still has some latitude with respect to the extrajudicial sanctions. There is no latitude regarding extrajudicial measures, and in our view they threaten the practices in place in Quebec at the moment.

[English]

Senator Poy: Why would it be a threat if you need not take any notice, if Quebec can proceed to do things as they have always been done, using the system that you believe is working? Why is this bill a threat? I do not understand that.

[Translation]

Mr. Charbonneau: There is a threat with respect to alternative measures. The situation is different as regards rehabilitation measures. Since extrajudicial measures have been introduced, and it is provided that extrajudicial measures shall be used before extrajudicial sanctions, the situation has been changed tremendously. The situation is completely different. Someone could say: "Why did you not use an extrajudicial measure rather than an extrajudicial sanction?" The bill introduces an initial stage whereby the current alternative measures program in Quebec becomes the second response to criminal behaviour on the part of a minor. So this is a huge change and one that allows all the police forces and citizens' groups to exercise their creativity, and we can do nothing about it. There is nothing to say that we can't pass provisions to limit the use of this procedure, it is completely open. Rehabilitation is a different matter.

Mr. Dumais: It is true that the bill does give some latitude to the provinces. We spoke about alternative measures programs and presumption of adult sentences for youth aged 14 or 15. There's also a reference to this with respect to the decision as to whether the youth will be held in secure custody or open custody. It is true that the bill does give the provinces some options. However, as a whole, the bill focuses primarily on the crime.

Less and less consideration is given to the young person who committed the crime. It is all very well to have discretionary authority, but this changes the way we work and the decisions that judges will make. It is said that custody is the last resort. We should demonstrate that all other steps have been taken before opting for custody. Judges will have no choice about enforcing the bill, because there is a clause which states that this is a last resort. In this regard, even though some flexibility has been built in, this bill remains fundamentally restrictive, because it focuses far too much on the crime, and not enough on the young person.

[English]

Senator Poy: You are saying that this really ties the judges' hands?

Mr. Dumais: Yes.

[Translation]

It does more than tie the judge's hands, it has an impact on the decisions of the workers involved as well. I would like to talk about the two thirds, one third formula. Let me give you a concrete example.

Let us assume the young person receives a three-year placement. After two years, the young person is granted parole automatically, except those considered dangerous. In those cases, there is a requirement to go before the court for a decision that the young person is dangerous and should remain in the institution. When the young person is ready to leave the institution, it will be necessary to go back before the court to say that he or she is ready to leave. We do not have that.

At the moment, when a young person is placed in an institution, there is a progress report made to the court every year. That does not mean that we can do whatever we like with the young person. The report states what progress has been made with the young person, and how we plan to help him or her during the time spent with us.

Under the new legislation, after two-thirds of the sentence, when it is time for the young person to leave the institution, he or she will go back to school or to work. Most young people will work, because they do not always have the ability to study. The reintegration program begins at that time. If things are not working out, the young person does not come and tell us. We can see that from his behaviour.

Young people often become much more verbally aggressive or they look sadder. The clinical team can decide to stop their leaves and keep them in the institution a few days. The length of time will not necessarily be the 48 hours provided for in the current legislation. It could take three days or a week. We keep the young people with us to see what is going on. They will go back to work outside the institution as soon as they are able to do so. There's a flexibility surrounding the clinical decisions that allow us to intervene on a personal basis.

We are not involved in rehabilitation, but rather in teaching basic life skills. These young people have never studied or worked. It is not true that things always work out on the first try. We have to be flexible in our approach. We are opposed to automatic responses for these reasons. I have always thought that automatic procedures had been included to force people into reintegration. You cannot legislate treatment or reintegration, you can train people to do that.

I am not saying that we are wiser in Quebec. You will remember Boscoville, an institution established in Quebec to provide remedial training. Because of the establishment of this institution, CEGEPs and universities began offering training programs. Training and supervision seminars started there. Rehabilitation requires an infrastructure that cannot be legislated. However, we must equip ourselves with the tools we require.

[English]

Senator Andreychuk: I agree with your brief. To follow up on Senator Poy's question, with the best of intentions of trying to ensure that young people get proper support, and perhaps unintentionally, the bill seems not to trust the people who work within the system - the caseworkers, the policemen, the judges, the probation officers. The bill is too directive and it takes away discretion. If I understood you, they have training and experience that gives them the ability to uniquely respond to the needs of each child. This bill ties workers' hands and forces the actions that the bill contemplates. Is that correct?

Ms Toutant: Yes.

[Translation]

Senator Rivest: I have had an opportunity to speak on this bill in Quebec. The explanations you have given us today are valid for all Canadians. It is our responsibility to state that clearly as regards the legislation. Quebec's expertise is quite simply useful; the problem is not unique to Quebec.

As far as the trend toward automatic procedures goes, society is doing a great deal for young people, including education programs. We treat them differently, because we are betting on their rehabilitation, much more than for adults. That is why we have a Young Offenders Act and why we treat them differently. You have illustrated very well that with all these structures that are being put in place, the freedom to choose is being eroded and we do not know why.

This is a new bill. So it uses new words, new terms, new criteria and new principles. You say that it will be good for lawyers, but very bad for young people. This bill will cause a great deal of debate in courts and even in the Supreme Court, to decide which principles should be given precedence. Do you have any idea what the impact of this bill will be, if it is adopted in its present form?

Mr. Dumais: We have taken 15 years to establish a certain balance as regards eight principles, particularly that of protecting society and taking into account the needs of young people. I cannot tell you how much time this new bill will take us, nor how much energy will go into it, nor how many legal battles will result, often at the expense of young people.

The role of defence lawyers is to defend their clients. They do everything they can to drag out the procedures, by asking, for example, whether everything was done before proceeding to custody, and so on. It is part of the defence lawyers' role to try to get the lightest measure for their clients.

Senator Rivest: That means that people will be working without knowing how things will turn out.

People will say that they have won, that they did things right because the case went to the Court of Appeal in Saskatchewan, Quebec or elsewhere. This will be a real mess as regards the introduction of structures harmful to young people, and even as regards the provisions of the bill as drafted.

We do have the rule of law, and lawyers must defend their clients, but we must also know what the law is. Regardless of the zeal of defence lawyers, there must be some understanding of what the words and principles mean.

We will certainly reflect on some of these aspects of the bill. This is the first time we have heard this point, and I thank you for that.

[English]

The Chairman: Thank you for attending here. We appreciate your input very much.

We now have a panel of university professors.

Please proceed.

Mr. Anthony N. Doob, Professor, Centre of Criminology, University of Toronto: Senators, I refer you to my written brief; I will not be reading it to you. I urge you to recommend speedy passage of the Youth Criminal Justice bill so that we can deal more effectively with youth who offend.

I make this recommendation to you for one simple reason: The bill is overall an important improvement to the Young Offenders Act. I may disagree with some of its aspects, but it is certainly a better piece of proposed legislation than the legislation that it will replace.

Rather than simply making assertions to you, I will try to give the factual basis for my conclusions. Many of these facts are in my written brief.

I start by reminding you of an important criminological fact - the laws that deal with youth offences have very little to do with the amount of youth crime we have in society. If we were interested in reducing youth crime, we would be here to talk about developing government programs to give support to children, families, schools and communities. We are not here to discuss these important problems. We are here to talk about how society responds to youth who offend, which is also a very important issue.

I have two main reasons for recommending that the bill be passed quickly. First, the Youth Criminal Justice bill has a high likelihood of success in reducing our overreliance on the youth court as a way of responding to youth crimes and as a mechanism to hold youths accountable. This is important, for reasons shown in table 1 on page 2 of my brief. Put simply, we are squandering resources and almost certainly doing harm to youths who have committed minor offences, by bringing so many minor cases to youth court.

Table 1 presents a simple fact about the current law. Depending on one's own definition - and I am leaving that definition to you - between 43 per cent and 73 per cent of cases being brought to youth court are not very serious. Which figure you choose depends on where you want to draw the line between minor and less minor cases.

Even at the lowest figure, 43 per cent, it means that about 44,000 minor cases are being brought unnecessarily to court.

You just heard from a group from Quebec. I have the equivalent data for Quebec, if senators wish to see it. The figures, as you would expect, having been educated about this process in Quebec, are obviously lower. They are clearly bringing in fewer minor cases. However, if you look at those first four minor cases - theft under $5,000, largely shoplifting; possession of stolen property; failure to appear in court; and failure to comply with a disposition - about 30 per cent of the cases going to the Quebec courts are those for relatively minor cases.

Quebec is not immune to this problem, and it is important that you remember that when you hear what people are talking about.

Youth court is not the place to deal with minor offences. The data are clear about what goes on and what goes to youth court. We are talking about thousands of very minor cases. You have the figures before you. You can draw the line where you wish.

The part of the bill on extrajudicial measures in the youth criminal justice act is a vast improvement over the weak alternative measures sections of the Young Offenders Act. The reasons are detailed in my brief. What is important is that the police and others are provided with guidance on the types of cases that can best be handled outside court. There are presumptions that certain cases can be dealt with outside of the court. There are statements in the proposed youth criminal justice act that indicate that extrajudicial measures could be used repeatedly, can be used when the youth has already been found guilty of an offence. There is a requirement on the part of the police to consider extrajudicial measures when dealing with a youth.

We have a very serious problem, and that problem is summarized in a very simple form in the numbers in table 1.

The second reason I urge speedy passage of the bill relates to the sentencing provisions of the proposed youth criminal justice act. In table 2, on page 3 of my written brief, you can see that across Canada 48 per cent of the custodial sentences handed down in Canada are for these same four minor offences. Forty-eight per cent of the kids we put in custody in this country are put there for theft under $5,000, possession of stolen property, failure to appear and failure to comply with a disposition. Again, the figures for those minor offences are lower in Quebec, at 34 per cent. One third of the time Quebec kids are being put in custody they are being put there for one of those four minor offences. You should be asking yourselves whether that is the kind of Canada you want to live in.

We need to address the overuse of custody for minor offences. The proposed youth criminal justice act does this in two ways. First, clause 38 states that proportionality is the overriding principle of sentencing. The reason for this is obvious. Most of us believe that the size of the intervention by the state into a youth's life should be limited by the seriousness of the crime. Our problem, which clause 38 in part is dealing with, is described in table 2 on page 3 of my brief. Proportionality should - but not on its own - reduce the over-reliance that we have on custody.

More obvious is the need to address the fact that too many minor cases are there. What we have to do is to deal with that.

The second way in which the use of custody will be restricted under the proposed act is by placing hurdles before the judge in the decision to use custody. There are four such hurdles outlined in clause 39. A case cannot get a custodial sentence unless it meets one or more of these criteria. The limits will go a long way in reducing the use of custody.

I would urge you to go back to the Young Offenders Act and look at the equivalent kinds of wording there, because the reason we have the problem described in table 2 of my brief is that the Young Offenders Act is not as explicit and does not deal with the principles that we should be keeping kids out of custody as adequately as the proposed legislation will.

The needs of the youth are not ignored in the proposed youth criminal justice act. The proposed legislation puts limits, based on the proportionality principle, on the intrusions that are permissible into a youth's life. Remember that within the limits defined by the proportionality principle, the judge must impose the most rehabilitative and re-integrative set of sanctions possible. It is not a choice; it is a must, shall.

The proposed youth criminal justice act will not, however, allow courts to lock up youths in custodial facilities, as some were just arguing to you they should be allowed to do, for what might be seen as their own good. I should point out, however, that the Young Offenders Act did not allow that either. Section 24.1.1(a) of the Young Offenders Act specifically states that that is not permissible. When people say that the proposed legislation will not allow the courts to do this, I should point out that what they are saying is that the current law is not appropriate. The proposed legislation continues by saying that this is not an appropriate action. This does not mean, however, that youth cannot receive rehabilitative and re-integrative sanctions; the judge must impose such sanctions.

The third reason that you have heard about is, of course, the shift from custody to a custody and supervision order. This is an enormous improvement, in part because it forces custodial facilities to begin at the beginning of the sentence to plan for the youth's re-entry into the community. It requires a period of reintegration for all offenders. That is certainly good practice.

There are some problems with the proposed youth criminal justice act. As you might expect, I am not a fan of the presumptive adult sentences, but I feel they have to be put in context. The decisions on these will be made by youth court judges; and given tests that must be made, that a youth sentence does not have sufficient length to hold the kid accountable, there is less reason to be concerned. Remember that there has always been the possibility in Canada of putting youths into adult court when there they are as young as 14 years old. This lowering of the presumption is, I find, inappropriate.

I am not as worried about it, however, as some might be, for reasons that are described on page 6 of my brief. There are two sets of facts at which you should be looking on page 6. The first one I will refer to is figure 1 at the bottom, which describes the number of cases transferred in Canada each year over the past few years. The point of this is that it is a decision that fortunately is used rarely in Canada. There are thousands of cases that could be transferred, although very few are in fact transferred. There are relatively few applications for transfer.

The second point I want to make is that even when we did institute presumptive transfers for youths who are 16 and 17 years old, when that law came into effect in 1996, it did not have a noticeable effect on the number of transfers. I am not suggesting to you that that is a good aspect of the proposed legislation. All I am saying is that the severity or the problems involved must be weighed against the enormous problems that we have on the overuse of court and the overuse of custody.

I do not think that this is a law that should be characterized as being soft or too soft or tough or too tough. It is a more sensible approach to a very complex problem.

I urge you to recommend its speedy passage.

Mr. James Hackler, Professor, University of Victoria: As I mention at the beginning of my brief, Professor Bala, Professor Doob and I probably agree 99 per cent of the time; we do not in 1 per cent of the time, and this is one of these times. I will not go over my brief. It is only two pages in length. I have also passed out an illustration of what Fiji does. We could learn quite a bit from Fiji, by the way, but I will not spend time on that. I will just go on to several illustrations.

A young man in court had run away from an open custody facility. He had no particular reason that satisfied the judge, so the judge used his normal rule and sent him to closed custody for six weeks. At lunch afterward, the judge - a new judge who had just come on the bench - said that he uses the same pattern; that is, that if a youth does not follow the rules the first time he raises the ante, so six weeks in closed custody is a normal response for someone who goes away from open custody. That afternoon, I was at a facility this young man left. Why did he leave? The psychologist said that he had been beaten up by the other kids. Did the judge know that? No. Why not? Well, the youth did not want to say this in the courtroom, with other kids around. How is a judge to know? Can you call him up? No, we cannot do that. The French and German judges do not understand. Why does the judge have to be the most ignorant person in the room? Our system tends to keep our judges ignorant. Other judges in other parts of the world, in Europe particularly, want to know what is happening.

Why do I tell this story? Two years later, when I came back to the same court, these same two judges were now handling things differently. They had learned to read the clues. They had learned to pick up information. They had learned to be better informed. That has nothing to do with what the law says.

My point is that all of the courts across Canada, including those little places up north, work out their own strategies. They different tremendously from place to place. I use one illustration of a northern community in my brief, but I can give you many illustrations where they learn to make the system work. They learn how to manipulate the law. Every time a new law comes into effect, the process goes to hell for several years, until the judges finally work out ways to cope with the law.

We saw this with the Young Offenders Act. We started using the courts more after the Young Offenders Act was introduced. In the last 10 years, however, there has been a decline. The formal system has been used a bit less each year during the last 10 years or so. We are getting a handle on the problem.

Even in Quebec, the province where I think most of us who study juvenile justice would argue has the best system, when they brought in their legislation in 1979, prior to the Young Offenders Act, what happened? They set up a screening committee that did not include the police. For some time, the police were angry. Things did not go well for a time. However, then the police became part of the screening committee, and they got things worked out again.

In other words, when new legislation is brought in, especially proposed legislation like this, it takes a couple of years to sort things out. The lawyers will have to refer to their Martin's Criminal Code. Following the introduction of the Young Offenders Act, the lawyers had to study the code for a time. They did that for a few years, and now they have it under their belts. It is not what the law says that helps these systems work; it is the networks they develop. Those networks are interfered with as you give them overwhelming law.

In 1984, Hong Kong introduced a youth justice act, which totals 14 pages. My feeling is that the process is slowed down if there are too many details. This act has too many details Everyone knows that. It discredits Parliament's actions. By trying to appease both sides, and not doing a good job of either, the law-making process is discredited.

On page 95 of the bill, there is a clause that mandates the person preparing a progress report to talk with the family and do all the things a social worker does now. This is an insult. These people have been doing this for years. This bill spells out in law that one can talk to the family to get all sorts of information - this is an insult.

There is also a clause that says that the police are required to consider alternate measures and that, if they do not want to proceed with alternate measures, they can say that they considered them and decided not to use them. That has no meaning whatsoever. In fact, the police have always considered alternative measures, even before the term was invented. We did not like "diversion", the American term, so we used "alternate measures." The police have always screened kids out and they have done that most successfully in Quebec. The informal system there has screened out kids for a long time. In Montreal, three times as many kids are in custody for break and enter as are for theft, because theft is not dealt with in court; rather, the kid is taken home.

Mr. Nicholas C. Balla, Professor, Faculty of Law, Queen's University: I think that on balance the bill before you is an improvement over the present legislation, and the various iterations of this over the last few years have also been an improvement. On balance, I would support the enactment of this legislation with some time for implementation.

I view this legislation as part of a process of ongoing change. Our youth justice system has changed in many ways over the last few years and, I would hope, it will continue to change. I hope the forthcoming resources will facilitate that as well.

I certainly agree with Professor Hackler that enacting legislation like this is not a costless process. The energies of all those who work in the youth justice system will be diverted to some extent to studying and thinking about implementation of the new act. He is right that there will continue to be substantial variations between and within provinces and territories in how this legislation is implemented. We will continue to see variation in rates of custody.

On the other hand, legislation matters. In a number of very important ways that Professor Doob has identified, this legislation will push Canada in an appropriate direction. Professor Doob has emphasized two of the most important areas. One is a reduction in the overuse of custody. There is a place for custody for some young offenders, but Canada makes more use of it than any other jurisdiction in the world, and it is a very expensive, ineffective and sometimes counterproductive way of dealing with young persons.

The second important thing is the value of using extrajudicial sanctions - a horrible term. The present term, alternate measures, is preferable. Professor Doob is perhaps a little too optimistic about the effects of the proposed new legislation. As has been pointed out, it is totally up to individual professionals and the provinces to decide how to implement the provisions around extrajudicial sanctions. The fact that the statements are there, however, more clearly than in the present legislation, will push police forces, prosecutors and communities to use these methods, which are often more effective in dealing with young people than the formal court system. Judges will continue to have discretion. We will not see uniform implementation of the restrictions on youth custody, but we will see less use of custody.

I would like to touch briefly on some areas of my greatest concern with respect to the bill. I will suggest areas in which one might like to see amendments to this bill before it is passed.

First, on the provisions around adult sentencing, I agree with Professor Doob that this will be used only in a relatively small number of the most serious cases. However, they are also the cases where the legislation will have the greatest impact. The bill contains important procedural changes. Moving to a post-adjudication model is preferable in terms of both efficiency and fairness. I worry about the set of tests that has been articulated. I worry about the words of clause 72 that focus solely on the issue of accountability. The current legislation, the Young Offenders Act, requires a balancing of concerns about the young person and his or her rehabilitation with the needs of society. This bill focuses totally on the word "accountability." The presumptions in this bill are, in many ways, inappropriate and, in some ways, unnecessary.

This bill provides for variations between provinces in terms of age. It says that starting at age 14 there will be a presumption but that, if provinces wish, they can use a higher age. I think the indication is that Quebec is discussing using a higher age. That may well exacerbate problems of interprovincial variation and arguably lead to successful Charter challenges around that issue.

The issue of publicity has been mentioned. Under the proposed act, clause75, which allows the publication of names of young offenders who commit most serious offences, is both harmful and contrary to the provisions of the United Nations Convention on the Rights of the Child. There is, of course, a question about the legal effect of that convention, but it is certainly contrary to the spirit of it. It is unnecessary and in many ways it panders to the worst sentiments of the public. The public is very ambivalent about youth crime in our country. At certain moments, people want to see young people held accountable for what they have done. On the other hand, when they recognize the counterproductive effects of publicizing names they support more limited access to publication.

I want to talk briefly about the issue of legal representation. We have a relatively formal youth justice system. Many cases are and should be dealt with outside the courts, but in those serious cases that go to the courts lawyers have an important role. Not all lawyers are appropriately trained to act; however, in many cases, there are skilful and sensitive lawyers who understand the nature of the youth justice system. These lawyers often work in legal aid clinics and focus on representing young people. They can explain the process and ensure that their views and the understanding of community resources are brought before the court.

I worry that the new provision that will allow provinces to require parents to pay for lawyers will mean that fewer young people will have lawyers. Parents will be told that if their child gets a lawyer they will have to pay for it, and thus some parents will caution their children not to get a lawyer. As a result, large numbers of young people will go into court without the benefit of legal counsel. Some of them will be innocent and will plead guilty. Some of them will receive inappropriate dispositions.

A much more effective way to hold parents accountable is to tell them that if their child is convicted in youth court and taken into custody they will have to pay for part of the cost of that. After all, the child is not at home where the parents should be paying for his or her care. However, it is inappropriate to make them pay for lawyers; in many ways, that will be counterproductive.

Mr. Irwin J. Waller, Professor, Department of Criminology, University of Ottawa: I have spent the last seven years running the International Centre for the Prevention of Crime in Montreal. This centre was set up to identify what methods work to reduce crime and how these methods can be implemented.

I read what the minister said to this committee and I agree with her ambitions for Canadian policy.

I think it is good to reduce youth crime, to respect the needs of victims and to limit custody, not to the last resort but to where it is an appropriate sanction to use. Safety is as important to Canadians as health care and education, and we need to treat it in the same way, and that is seriously. Unfortunately, however, the proposed legislation, in its present form, without adequate strategy around it, and there is no visible strategy around it, will not have any impact on decreasing crime. It will not decrease crime, neither persistent crime, petty crime nor violent crime, and that is an important point to underline, and I will be happy to be taken to task on it. The proposed legislation will not reduce the number of persons in custody. In fact, from what I have heard today, it is likely to increase fairly significantly the number of people in custody.

Third, if implemented, the proposed legislation will squander scarce human resources and financial resources in Canada on the wrong things. These resources obviously should be put into reducing youth crime, not criminalizing crime in the way it is dealt with here.

Fourth - this is not in this brief but I have done another brief for Senator Wilson - I do not think the proposed act in its present form will conform to every part of the UN Convention on the Rights of the Child, primarily because of the presumptive sanctions and the issues that have been referred to in terms of legal assistance and in terms of putting in the legislation, for instance, use of the Dangerous Offenders Act for kids aged 14. I am not comparing this with the Young Offenders Act. I am comparing it with what a civilized society should be doing, and that is what the measure is in the UN Convention on the Rights of the Child.

It is important to put this in context. We all watch the news, I suppose, and many of us are under the impression that crime is decreasing. Well, let me just remind you that it is 200 per cent higher than it was in the 1960s and 1970s. The indicators on crime for every common crime that is covered in this proposed act, with the sole exception of homicide, are now higher in Canada than in the United States. We have to face this. I am not surprised that the Canadian public votes against a government that does not take crime seriously. Taking crime seriously does not mean using the dangerous offender legislation against 14 year-olds without ensuring that they have legal assistance; taking crime seriously involves ensuring that we put in place serious measures that are well-known to reduce crime.

I am not in an ivory tower dreaming about Canada innovating. Other countries are already doing this. We only have to look at what the British government has done over the last five years. After reducing break-ins - or maybe they did not reduce break-ins, but they came down for other reasons - by upwards of 30 to 40 per cent, they went to the electorate with a commitment to reduce break-ins by a further 50 per cent, and, in my view, they have all the evidence to do that. The evidence is available on the Internet. You can look at the Surgeon General's report, the Home Office reports and the International Centre for the Prevention of Crime reports. The information is all there, and none of this is in any way reflected in this legislation. There is not even an invitation for judges to use the most effective and cost-effective methods. There is no invitation to do that.

I totally agree with Professor Doob that, if you put in the option, people are going to do this. We know that they do not. We know that when you introduce severe measures, they use them more. What happens? People do not comply. In his own evidence, you have as one of the major reasons for people being sentenced to custody in Canada not complying with regulation. In 39(b), you have not complied. It will not be changed. We will see more young people put in custody for petty acts. We are certainly going to see more of the persistent people for which there are effective programs available placed in custody, which we know does not work and squanders public funds.

Why have I come to make this statement? I have made a few statements regarding the details of the legislation. I do not know whether you will be able to stop this particular proposed legislation from being passed. My assumption is that you can tinker with it. Maybe you can incorporate the UN convention in the declaration of principles so that when the lawyers manage to work out how it works, once they get to the Supreme Court, they can actually get the Supreme Court to look at the UN convention. That would be progress.

I agree that "extrajudicial procedures" is not exactly the term we would want to see. However, I assume this proposed act will pass. You have a responsibility to make sure that this proposed legislation goes through with the sort of strategies and programs that a civilized, advanced country should be putting in place.

There are two simple things that you could ensure happen. The National Crime Prevention Centre fall under the Department of Justice at the moment. I would like to see this made an independent agency, adequately funded, at the same level - not the same level of funding as the RCMP - but at the same level of reporting to government. This is the only agency that can logically ensure that some of what the Minister of Justice would like to see happen in Canada through this proposed legislation in fact happens. The centre could work with the provinces and with agencies to ensure that the most effective methods are used to help prevent youth from becoming offenders or from continuing to be persistent offenders.

The second thing that must be done is to put more resources into the Centre for Justice Statistics. The minister told this committee that Canada puts more youth in custody than the United States or any other western country. I assume this figure represents the number of people who are sentenced to custody; otherwise, it would not add up. Comparisons between different countries cannot be made because different countries use different diversion procedures, et cetera. If we were to take the number of people actually in custody, we would discover that Canada is not that unusual in the western world, certainly not as outlandish as the United States. Waivers to adult court is a process that is used extensively in the U.S., more than 10,000 cases per annum; Canada is not even doing our pro rata proportion.

We have to get statistics in place so that people can manage a justice system within a strategy to reduce youth crime. Information regarding various offences that youth are committing, or drug use statistics, or whatever, must be readily available. These statistics must be compiled on an annual basis. We need to know what use the police make of the sorts of proposals being made here, when they implemented their discretion and when they did not. We need to know how many people are in custody, and we need to know, more than anything else, how many of these people come back into custody.

It is, in my view, futile to have a debate about whether the Quebec system is better than the Ontario or British system when we do not even have adequate information on how these systems operate within our country. We must get adequate statistics in place.

In addition, we need to ask the federal government to give us a national strategy as to how crime is going to be reduced. That is what Canadians want, and they want to see how this proposed legislation fits into that, if indeed it does. It is probably sufficiently flexible to be moved.

We need targets. These are what a modern country uses, and that is why people voted for the Blair government. As we have seen, the people out West did not vote Liberal. They voted against the government because it is doing nothing about crime. The government could be doing something about crime; however, increasing penalties or giving the police options will not do it. We need to ensure that we have cost-effective measures. You do not have to believe me, the Surgeon General of the United States or the Home Office. There needs to be a Canadian group that gives advice on what works, advises the provinces, the federal government, you and the House of Commons.

We need to begin to change the culture in policing, in our schools and in the justice system, so that crime reduction is our focus. I am in favour of the rights of offenders and victims. We have to make sure that crime reduction is the major objective. That is what people want but are not getting in this country at the moment.

We have to deal a lot more in mediation. The French government, as you are probably aware, has created 25,000 jobs for social mediators. This is a way of dealing with theft and shoplifting. Clearly, I agree with Professor Doob that shoplifting should not be in the juvenile court, but you have to do something sensible with it outside, and mediation is one of the things that you can do outside.

We have to develop a capacity in this country to reduce crime. That means helping police, helping schools and helping parents do the sorts of things that will make a difference. I do not think that because this is a committee looking at a piece of legislation in isolation, and isolation is the major problem, that you should say, "That is for schools to think about." Kids do not divide their life into what goes into youth court or what goes into schools. That is why there has been some bullying in our schools.

You may be interested, post-Columbine, to know that the Attorney General of Colorado has recommended measures similar to what the CBC carried on a documentary last night about what should be done to reduce violence in schools, and this is not referred to anywhere in this legislation.

I think I have probably put enough on the table to make clear my position.

Senator Cools: Put more, put more.

Mr. Waller: You have more in the remainder of the brief. I would be happy to give you Internet sites where you could access this information easily. I would be happy to talk about some of the specific programs. I have included a table in my brief indicating the sorts of reductions you can get for programs that actually do reduce youth offending. Thank you.

The Chairman: We may also need to have a conversation about the division of power within our very decentralized Confederation and within our Constitution.

Senator Andreychuk: I thank the chair for the opening remark she just made because that is exactly where I want to go with Professor Waller. You have said what some of us who worked in the system a long time ago said - that is, that justice and bringing children to account in crime is not the only thing, that one must look at a holistic approach to a child's needs.

Unfortunately, in Canada, for the last number of years, we seem to be of the opinion that the law can change behaviour, and so we go to the youth justice legislation. We went from the Juvenile Delinquents Act to the Young Offenders Act to an amendment to the Young Offenders Act. Each time there was a problem with children, we went to youth justice. I want to underscore that what you have said is that we need crime reduction, crime prevention, a child-centred model, but that the solution lies in more than just the courts.

I have encountered two problems. The first I have pointed out, that we think that by changing the law we can change behaviour and get rid of the problem. I think you have rebutted that by putting out what we need to do as a global strategy. Whether I agree with you that it is crime reduction does not matter.

The question you have not answered relates to the federal- provincial issue. We have heard from some of the witnesses that much of this crime reduction package is in the hands of the provinces and that much of the resources needed to deliver this model is in the hands of the provinces. We are using the court system, the federal power, to get at the provinces.

I know about how the minister consulted. The House of Commons committee studied this issue. Was there an honest attempt to sit down with the provinces and really attack this issue in a high-profile way? Certainly I have not heard of it, and I am sure neither the public nor the press as either.

In other words, when we talked about child poverty, it was here and there and all over the place. When the public finally put the pressure on federal and provincial officials, a federal-provincial conference took place, and at least a process was underway wherein we started to look at child poverty.

In my opinion, until the provinces sit down with the feds to examine youth conflict with the law and involvement with drugs, we will not get anywhere. Would you care to comment?

Mr. Waller: I think if we go back to the 1970s -

Senator Andreychuk: Unfortunately, I do. Professor Bala can attest to that.

Mr. Waller: I had the privilege to be director general of research and statistics for the Solicitor General during the period when the death penalty was abolished in Canada. We saw in those days federal-provincial meetings that made use of information, evidence and data. Unfortunately, in the last 20 years, there has been a lack of information. The Centre for Justice Statistics has very limited data and for a long time did not even have sentencing data. It does not have any of the sorts of data systems that other major countries have. It does not have a regular victimization survey. It only recently started this survey on children.

It is not possible to sit down and talk with the provinces about program change without evidence. This is the result of that. All they can debate is what lawyers can do in court and then discuss provisions under which police can apply discretion that they have applied in the past. That will make much more work for lawyers, when we should be making work for a completely different class of people, people who can actually make a difference to youth crime.

The RCMP employs one third of all police officers in this country. They have a significant budget. Correctional Service of Canada is a large organization. I know they do not deal with many youth, fortunately, but they are an important player. How do we influence health policy in this country when health is a provincial responsibility? There is a range of things we do to influence health policy. With respect to youth justice, at the federal level we need to articulate a vision as to how we will reduce youth crime based on the information we presently have in Canada and based on the wealth of information from the Netherlands, from England and from the United States about what works and by looking at models from other countries.

Not only did Britain reduce several of its major crimes over the last five years by large amounts, much larger than other European countries, but also New York reduced its crime rate by something like five times the national rate. Boston also reduced crime, having not had a single youth murder for three years. Fort Worth reduced its crime levels by 70 per cent. We are living in a world where people who want to reduce crime have managed to do it, and they have done it by setting targets, by holding people accountable and by persuading people to do so. There are no dictators in an American city; people have to work together, people from the state, federal and county levels.

We are perfectly capable in this country of developing a vision about how to reduce crime, particularly youth crime. We can persuade the provinces in most cases and probably in all cases to work with us. If the minister said, "I have a strategy to discuss with you that would give us a 30 to 40 per cent reduction in most common crimes in this country over and above the decreases we have already had," I think the provinces would listen. That is a very modest ambition for this country, nothing of the sort we saw in New York or in England.

The Chairman: We were able to get the opinion of some of the provinces and attorneys general, and I suspect Ontario will not agree with you.

Mr. Waller: Can I respond to that?

The Chairman: I believe Professor Doob wants to answer.

Mr. Doob: I thought we were here to talk about the proposed youth criminal justice act. I agree completely with Professor Waller that crime prevention is important, but the important point is that the kinds of things that will be involved in crime prevention are outside of this proposed act. Whether we have the Youth Criminal Justice Act, the Young Offenders Act, the Juvenile Delinquents Act, or deal with everyone under the Criminal Code, talks about how we treat children and how we see children, but it does not have a lot to do with how we will reduce crime.

Mr. Waller: If you go to the Government of Ontario with this piece of legislation, you will get the answer you expect. If you go to the government with some facts, with some evidence about what works, and say, "Should not more of these things be put in place? They have been demonstrated to work. Look at the New York experience. Look at what is going on in England and at what France is doing," I think the government would probably respond in a different way. If not, and if you go to the public with the facts about what works - and I am not saying this idly - they will go for it. You only have to look at Proposition 36 in California. Proposition 36 is the measure that moved drug users from prisons into the community. It was sold to the Americans, who are well known for loving to build prisons and to incarcerate people. Californians went for it because there was evidence about what was cost effective; they voted 61 per cent in favour of Proposition 36. I think Ontarians would vote 75 per cent in favour. British voters have been voting in favour of accountable action that actually reduces crime and which includes some sort of sanction within the youth courts, but it involves a whole other network and a whole other way of dealing with the crime problem.

Senator Andreychuk: I think we were both around the same table a long time ago when the Young Offenders Act came along. At that time, we were told that custody should not be used, that it was a last resort, and that we would have the upfront alternative measures. As a judge, I believed it at that time. I honestly believed that we were about to enter into a new era. I saw that it was a much more criminalized system, which I thought was good for the rights of the child, but I knew it would have the framework of an adult court. However, I had faith in what I was being told, which was that we would have the upfront resources.

I found myself facing directors of social services who said to me, "There is no money." We then started to creatively interpret open and closed custody. For us, closed custody meant back home with parents, who would telephone in because we had no resources, and the child was offending and reoffending. I could have said, "I know he will reoffend; however, I do not want him brought back for breach of probation because all I will do is put on a longer term of probation." Eventually, I had no other tools.

Social services and I would creatively use some custody models. I do not see any change in this bill from that, other than more admonitions to the judge and social services and more promises from the government that there will be money to carry out those alternative measures.

What we have heard is that the alternative measures that have worked best have come from what I call the desperation level, from the Aboriginal community that has moved to sentencing circles, from policemen who have community-based programs and from judges who have become involved. I do not see how this measure will change that if we do not have either a totally different strategy or at least upfront money in the hands of the provinces. Even $200 million is not enough spread across this country for five years.

I have said it; I have vented and now I feel better.

Mr. Bala: There is a lot of truth in what you have just said, as well as in your earlier comments about the reality in this country of the division between the federal and provincial governments in terms of legislative role as opposed to spending role. Professor Waller has raised a lot of very good issues. To me, however, they are not ones that can be dealt with in this kind of legislation. When you are considering this proposed legislation, the question you should ask yourselves is not the following: Is this a solution to the youth crime problem in this country, even if it is making a safer society? Many of the things that Professor Waller talked about, some of which will start at the prenatal level and go to daycare, school and so on, are not in my mind part of a youth justice system. They are part of having a safer society. When you are looking at this proposed legislation, the question you should ask is this: Is this legislation better than the present act in dealing with young people who are coming in contact with the police and the courts? For that matter, is it sufficiently better that it is worth the energy and so on to implement it? In my view, it is.

In Part I of the bill, the federal government has promised $200 million to help with the implementation of the proposed legislation. I think that is an important part of it. It is a good question as to where we go now, and you will have to ask the minister and her officials whether, when and if the legislation is implemented, they will take away that money. There are some important messages in the proposed act for police, probation officers, communities and judges about the kinds of things they should be doing and about the direction in which they should be going. Does the proposed act do it all on its own? Absolutely not, but I think it has some important directions.

Senator Andreychuk: My point is that those policemen, those judges and those caseworkers know the messages that are in the act. They have not carried them out because they have no means to do so. I do not think they are people who want to sentence young people. I do not think they want them in the justice system.

Their hope is they might access a resource if the young offender to court. Judges say that young offenders have a hope of getting resources if the young offender is put in custody. It is desperation that has driven the YOA. What will this bill change? The admonitions? They know those lessons.

Mr. Bala: I do not think there are only admonitions. There is a view that this is just a message from Ottawa saying that you people who were administering the justice system have screwed it up and Ottawa will save you. In fact, people in the field are saying, "You are the ones who created this mess, and now you are making it worse for us."

I think there are some important signals there. Certainly, in my own province of Ontario, I am involved in an alternative measures program. In Kingston, one of the problems we have is that the rules from the provincial government are so tight about what cases can go to alternative measures that relatively few cases are going there. We could deal with a much broader range of cases.

I suggest in my brief that it would be preferable for the federal government to fight with the province and say, "Here is a list of offences that must go to alternative measures in certain circumstances." This bill does not do that. In my view, that would be desirable, and I mention it in my brief.

My sense is that in this constitutional and political environment, the federal government is not prepared to push the provinces that hard. Perhaps it should.

Mr. Hackler: I agree with Mr. Bala that you have to use the law constructively. I just do not think this is an illustration of it. I do not know how one really goes about it. I have seen tremendous flexibility in the various small courts I have visited particularly, and a lot of imagination. One of the suggestions I offered in British Columbia was to give the judges a $5,000 slush fund, and have them account for it afterwards. That could be put in legislation. One illustration that came up involved a kid who needed to be assessed in southern British Columbia. He was from northern British Columbia. It would have cost hundreds of dollars to the youth to the assessment. The prison bus was not a good alternative. His grandmother would have driven him, if the judge could give her $200.

I am suggesting that all judges should be given a slush fund and that they should account for it at the end of the year. Many of them are creative and have a lot of imagination. They depend on local networks, et cetera. How can you include in legislation something that gives elbow room to your judges? I see tremendous illustrations of effective work being done, especially in small communities.

Mr. Bala: Certainly, if Professor Hackler's point is that you trust judges before provincial governments, I would trust the youth court judges who work with young people before I would trust the Premier of Ontario in this area.

Senator Andreychuk: He has resigned; you do not have to trust him now.

Mr. Doob: There is a question as to how far the federal government can go. In the normal course of events, if there are 102,000 cases going into youth courts every year and a review of those cases indicates that somewhere between 30,000 and 50,000 need not go there, then keeping a huge number of cases out of the court does free up resources. What one needs then is to start off.

What does the bill do in order to do that? To respond to that question, I would like to give you two illustrations. The first illustration is that, as has been pointed out, there are no consequences for not doing this. Clause 6(1) states, in part, the following:

A police officer shall, before starting judicial proceed ings...consider whether it would be sufficient...to take no further action...

The consequence of a police officer not warning a young person is that the judge will reprimand the police officer that the matter need not have come to court in the first place.

I have been talking to police departments. They are very interested that they now have that requirement. They are obedient to it, and they say, "It says that we ...shall,' therefore we shall. We better get some structures in place in order to be able to do that effectively." Officers do believe that many of the things that they are taking to court should not be there. Clause 6(1) tells officers what they must do and gives them not only the requirement but a licence with their political masters to say that the law is now written to such an effect.

In terms of the administration of the law, clause 4(d) says that nothing in the bill precludes the use of extrajudicial measures when they have been previously used and when a young person has been previously found guilty. Though nothing precludes it does not mean you have to do it. On the other hand, there are various regulations, which Mr. Bala has mentioned, that in Ontario now prelude that. Through this proposed legislation, the federal government is now saying this to police officers and others: "Look, there are things that you can do. Just because you have seen this kid before does not mean you cannot do those things." The question is not whether this is perfect, but whether it is better. The answer to that is quite clear.

Mr. Bala: If you are looking for specific suggestions around the issue of extrajudicial sanctions, section 6(2) of the act says that a judge may not review the decision of the police to not divert a young person or send them to extrajudicial sanctions. That could be amended to say that if the judge considers that a case should have been dealt with by extrajudicial sanctions, the judge may refer it there. Some judges interpret the YOA that way and did say that there were and still are inappropriate cases being sent to court where judges are saying, "We have the power to send that back for consideration."

Those trial decisions were overturned by the Supreme Court of Canada because of the way the Young Offenders Act is written. You could say that judges do have that power to review cases. That would be a much stronger statement than the present legislation.

Senator Nolin: Professor Doob, Mr. Charbonneau told us quite convincingly that clause 6(1), to which you just referred, will probably destroy with 10 years the various programs that were put in place in the Province of Quebec. What do you have to say about that?

Mr. Doob: I do not understand how any programs designed to keep youth out of court could possibly be undermined by this clause. It seems quite clear, in clause 4, which talks about the principles and objectives, clause 5, which talks about what they are designed to do and clause 6, and the set of choices that are there.

The idea that something will somehow preclude the use of extrajudicial measures is difficult to understand. I read that clause to say that police officers are supposed to be looking to see whether they are taking no further action or referring to a community group, program, agency in the community and so on. The idea that Quebec will somehow be forced to put something into the formal system is difficult to understand.

Senator Nolin: Do you work for the Department of Justice?

Mr. Doob: No, sir.

Senator Nolin: Did you work with the Department of Justice for either Bill C-68 or Bill C-63?

Mr. Doob: I was an occasional consultant from May 1998 until about March 1999.

Senator Grafstein: I am confused about clauses 4, 5, and 6(1). In my recent experience, because I have asked specifically these questions, the police, the Crown, and the judges do these things today, in effect. A charge is brought, they will listen, and then normally what is done, to move it in an extrajudicial way, is to drop the charge and bring in an extrajudicial measure. The one that is used often, which is very effective, is bond recognizance. The court can say to someone whose charges have been dropped, as a condition of dropping the charges, that the child is being held to a recognizance, a contract or agreement.

I do not understand why you say that the existing system precludes creative extrajudicial measures. What this does is establish a statutory regime, according to the police, that requires them to take a number of complex and costly steps, whereas before they had discretion to deal with it. An officer from the police association said that to us. The police went on to say, further, that it reduces the effectiveness of confessions because now they are compelled to read the youth his or her rights, the 12 pages and so on. By criminalizing the preliminary process, the effectiveness of the police, the Crown and the judges to use extrajudicial measures is reduced.

That is part of the evidence we have heard. I am a little puzzled by your comments, Mr. Doob and Mr. Bala.

Mr. Hackler: I spend most of my career watching judges rather than watching what the law says. I believe that the main barrier has been the options. Everyone is eager and looking for options. If the judges have good options, and they find them in all sorts of places, they use them.

How can you reduce the number of cases you have to act on? About one third of our cases goes to court for administrative reasons. The people are in custody for administrative reasons. In France, that is not possible. If you do not obey the judge's wishes, that is not a crime. You have to do something else to commit a crime. When talking to French judges, I ask how they feel when the kids do not do what they tell them to. The judges say that maybe their ideas were not so good after all. There is a much different attitude there.

Our judges may not like that much, but judges are persuasive people. They can sell kids on a lot of things. The French judges use their powers of persuasion and rarely use the formal law. In order to reduce the number of kids in jail, you might take away the power to criminalize administrative decisions. However, I do not think that will happen.

Senator Grafstein: Mr. Hackler, I am trying to deal with this legislation. I understand the French and other European models. We have had some tertiary and secondary evidence about that. However, we are trying to come to grips with the model that the government has put before us. What are you saying about this model?

Mr. Hackler: I am saying the following: Could you change the law so that kids could not be sentenced to closed custody for not following administrative rules?

Mr. Bala: The concept is to deal outside the court with young people who commit less serious offences. There can be debate about what less serious offences are, but they would certainly include minor assaults that happen in schoolyards. For a long time, without any legislation, we were diverting many cases. The Juvenile Delinquents Act had no provision for this. The Young Offenders Act was intended to continue and encourage that. As Professor Waller pointed out, section 4 of the Young Offenders Act resulted, in some contexts, particularly initially, in net widening, so that cases that in the past were dealt with informally were sent to alternative measures and new cases that were in the courts were being sent elsewhere.

Clauses 4 to 11 of the proposed youth criminal justice act are intended to push some of the cases that are now being dealt with in the courts into a less formal, more expeditious, more community-based method of disposition. These methods are often very effective and are relatively fast.

Senator Grafstein: I agree with everything you are saying, but that is not the question. The question is: Will this act stultify the existing practice in terms of giving maximum discretion to the three levels of officials and create a regulatory process that inhibits the discretion in the hands of the courts, the police and the social workers to move to measures that are focused on the child?

Mr. Bala: On the pre-court side, it will certainly not inhibit anything. There is more in this legislation for pre-court diversion than there is in the present legislation. On the other hand, the problem is that it is all rhetorical, in a sense, and discretionary. Many police forces do want to make greater use of police officers on the street, and many police chiefs recognize the value of this. However, in some provinces, most notably Ontario, the government issues policy saying that many of the cases that the police would like to send to pre-court diversion cannot be so diverted and that if they are and there are problems the police will be held accountable.

Mr. Doob: As Professor Bala pointed out, the important thing is that what the police officers are doing now they can continue doing. They are given a set of choices. Some of them are more formal, but they can still do exactly what they were doing before. They are given more legal justification for doing that. When they read, as they have, that they must consider this, they say that they will consider it.

At the moment, if a police officer, after reaching an agreement, simply sends home a minor offender who has been previously found guilty, that might be seen as inappropriate. This bill gives comfort to that police officer by saying that the fact that the young offender has been previously found guilty of an offence is not a bar. It is not as strong as some of us may want in terms of more formal assurance. The question is whether it is worse. I cannot imagine that more cases will come in. I am reasonably confident that some of the new ones will be diverted to the various new options. It is really that there are additional ones.

Senator Grafstein: Mr. Doob, I have constitutional concerns about clause 61 and you have deep policy concerns about it. Clause 61 allows the lieutenant governor in council to fix an age between 14 to 16 for the purpose of presumptive offences.

Mr. Doob: I am not in favour of a presumptive adult sentence in any case.

Senator Grafstein: You say something stronger than that in your brief. You say that the provision for presumptive adult sentences is unnecessary and unprincipled.

Mr. Doob: Yes. I think it is unprincipled because it seems to me that just because a youth has committed a serious offence and, in this case, has been found guilty of a serious offence, that does not in any way make that youth presumptively an adult. At the same time, adult sentences have been with us since 1908, and obviously even before that since there was previously no special legislation for youth. We have always had the possibility of dealing with youth as adults.

Unlike Professor Bala, I like the test that says that an adult sentence is to be given only when a youth sentence would not have sufficient length. It focuses on that.

Getting back to your point, I find the idea that someone is presumptively to be dealt with as an adult -

Senator Grafstein: That is what the clause says.

Mr. Doob: I know it does, and I was equally not in favour of it in 1995-1996.

Senator Grafstein: Welcome to the minority.

Mr. Doob: I think it is bad legislation. As I said, no legislation that is this complex will be liked by everyone. The reason that that clause does not make me believe that the whole bill should not be enacted is that I see the impact of that as relatively minor.

Senator Grafstein: Your testimony is pretty clear. There are some parts of this you like very much, there are some parts you do not like very much, but on the whole you like the legislation. I understand that. I am trying to focus on one or two things that strike me as being not only unconstitutional but, as you say, unprincipled. You put it better than I have.

Do the other three of you share Professor Doob's concern about that clause?

Mr. Bala: Yes, and you are identifying that there will presumably be Charter-based challenges to this. In interpreting the Young Offenders Act and the Charter, at this point the courts have said that in a federal system one can have some degree of variation between provinces.

Senator Grafstein: No, that is what we have been told by officials. That is not what the cases say.

Mr. Bala: Senator Beaudoin undoubtedly has more knowledge on this than I, but we have had cases dealing specifically with section 4 of the Young Offenders Act in which the courts have said that, in a federal system, giving provinces a degree of authority to have interprovincial difference in how the administration of justice is implemented is acceptable and not a violation of section 15.

Now, in my view, clause 61 goes beyond anything that we now have and certainly will be more problematic and undoubtedly will, at the very least, invite Charter challenges, and, in this context, ones that may well be successful.

Senator Grafstein: Let me narrow it down to save some time. I believe there is a Charter challenge, and I also believe there is a clauses 91 and 92 challenge, which is different from the officials, because while the administration of justice can be varied, the principles of criminal justice cannot vary across the country.

The Deputy Chairman: That is a fascinating discussion. They only thing we have so far is two cases in the Supreme Court.

Senator Grafstein: It is my duty, Mr. Chairman, to see if I can distinguish those cases. Having said that, I am not asking constitutional opinions here because they are not presenting themselves as constitutionalists. I am looking for agreement or disagreement about the underlying policy, from a Canadian perspective, of reducing the age, in the hands of the lieutenant governor in council of each province, from 16 to 14, as we have been told, would be a benefit to improving the criminal justice system as it applies to youth. That is what we have been told. That is the rationale.

Mr. Hackler: Senator, we agree on lots of things. I see no advantage to moving the age down to 14.

Senator Grafstein: Or giving the discretion to the lieutenant governors?

Mr. Hackler: I see no advantage.

Mr. Waller: I share your concerns and those of the other professors. The more appropriate way to fix this legislation is to go along with what the Minister of Justice said before this committee, which is both in the preamble and in the principles.

Senator Grafstein: That is not my question.

Mr. Waller: If I can finish, the issue is not individual opinions about principle. Canada has ratified the UN Convention on the Rights of the Child so it should make sure that it conforms. I think a lot of the problems with this legislation, including the ones to which you refer, can be fixed by making it explicit under the principles that it must conform to the UN convention, and then allowing the lawyers to fight all the way up to the Supreme Court. We will then find out if these sorts of provisions are acceptable in the variations between provinces.

Senator Grafstein: Let me state it again. I am not asking you whether it conforms to the UN convention. I am not asking you whether it is a Charter standard. I am not asking you whether it applies to the question of federal power in the criminal context. That is not my question, and that has not been the rationale of the minister for this provision. The rationale for the minister for this provision is to say that this will improve the young offenders criminal justice system. We will improve the system by reducing the age, under clause 1, from 16 to 14, and by delegating that power to each lieutenant governor - that is what she is saying. She will come back and dispute this, perhaps, but that is the way I read her.

My question to you, as criminologists and sociologists, is this: Is that correct or not?

Mr. Bala: One of the concerns I have with the way that provision is written is that it is intended to allow provinces to raise the age of presumption from 14 to 16. My understanding is that there is some discussion, for example, in Quebec that they would do that. If you redraft that provision, I would not like to see that every province is at 14 and that no one can do anything about it. It is better to have it as at present, that is, to have the presumption at 16 and not at 14.

Senator Grafstein: Try to focus for me, if you will. I do not want to give evidence here myself, and I do not want to lead you. My question is this: Does this provision improve the criminal justice system as it applies to youth or not? There will be a variation; we have heard concerns about that. That is my question.

Again, I look at the remarks of Professor Doob who says that this is unnecessary and unprincipled because I assume that you concluded, Professor Doob, that it will do nothing to improve the system.

Mr. Doob: I think that presumptions generally do nothing to improve the system.

Senator Grafstein: That is my question to you, Professor Waller.

Mr. Waller: Obviously, I do not think it improves anything; however, my reason for saying that is not my individual personal opinion, it is my professional opinion on the UN Convention on the Rights of the Child, which is what I think we should be using.

Mr. Hackler: The European systems do not find it particularly effective to throw kids into the adult court. An adult court judge has no particular knowledge over a youth court judge. In Germany, they treat people under 20 differently from those who are 22. In a sense, we have not found any advantage in moving these cases into adult court.

The Deputy Chairman: Are you of that same opinion, Professor Bala?

Mr. Bala: Virtually every country in the world with a youth justice system has some provision for dealing with the most serious cases, and there is a variation on how those are defined, in a way that is somewhat different. In this country, we have seen 17 year olds who have committed horrendous murders and who seem to have a poor prognosis for rehabilitation for whom the 10-year sentence in the young offender system is not appropriate. When you ask if this legislation is improving the administration of justice, we have to take the context of clause 61 in the entire context of the new proposed act. In some ways, the bill has a better scheme for dealing with adult sentences, a better safety valve, than the present legislation by providing for a post-conviction, post-adjudication model. That is an improvement over the present model. Right now, the transfer process is a pre-adjudication model. It delays the process, requires judges to make a decision without knowing all the facts and is inefficient and unfair; hence, there is some improvement. Lowering of that presumption, however, is the problematic part.

Senator Joyal: Mr. Bala, you mentioned that variation of age from province to province might exacerbate the differences and could lead to Charter challenges on the issue of age. Please explain.

Mr. Bala: As Senator Beaudoin pointed out, there has been some jurisprudence from the Supreme Court of Canada largely dealing with young offender cases that have said that provinces can have variations in how they administer justice. The problem with clause 61 is not simply the variation in the administration of justice but in effect that a young person in Quebec, where they will choose 16 as the age, will presumptively, or perhaps not at all, face the possibility of an adult sentence whereas a young person committing the same offence under the same circumstances in Ontario will have the presumption that he or she will be facing an adult sentence.

These are the most serious decisions under the proposed act. It is interesting when you look at what the Supreme Court has said about allowing interprovincial variation that it has been largely in the context of less serious offences. This is the most serious decision that can be made about an individual under the age of 18. The proposed legislation gives tremendous discretion to territorial and provincial governments to have variation as between provinces. That will lead to the argument that there is discrimination based on geography between provinces. In turn, that will invite section 15 challenges, presumably from the provinces that have the higher age. Offenders will then ask this question: Why am I being treated differently from provinces that have the lower age?

The Deputy Chairman: The two cases to which I referred are Furtney and Sheldon S. They may be challenged, because it is not exactly the same thing, but the question is whether it is interparliamentary or what we call an oblique delegation. It is a fascinating problem, but I do not think we will settle it tonight.

Thank you, witnesses.

[Translation]

We can move immediately to the Commission des droits de la personne et des droits de la jeunesse [Commission on human rights and rights of young people]. With us this evening are Ms Athanasia Bitzakidis and Ms Claire Bernard. Please proceed with your presentation, and later we will have a question period.

Ms Athanasia Bitzakidis, Commission des droits de la personne et des droits de la jeunesse: First of all, I would like to thank you for your invitation to appear before the committee. I am a lawyer with the Legal Services of the commission, and I am responsible for the commission's intervention in the reference by the Government of Quebec on this matter.

The Deputy Chairman: Are you speaking on behalf of the Government of Quebec?

Ms Bitzakidis: No, I am speaking on behalf of the Commission on human rights and rights of young people.

The Deputy Chairman: I see.

Ms Bitzakidis: The commission has asked to intervene in the reference. My colleague Claire Bernard is a research lawyer. She is one of the authors of the paper you received for our presentation this evening.

My comments will be brief. I will mention why it is important for the commission to get involved. I will also raise a few points in the bill that we find problematic at first glance. My colleague will comment on the commission's main concern, that is whether or not the rights of children recognized by the Charter and international conventions are respected in Bill C-7.

The commission has an interest and a role regarding Bill C-7 because of its mission as stated in section 57 of the Quebec Charter and in section 23 of the Youth Protection Act.

Essentially, our mission is to ensure that children's interests are protected and their rights respected, to promote respect for children's rights under the Youth Protection Act and the current Young Offenders Act, to investigate when there are grounds to believe that their rights have been violated, to take legal actions and to make recommendations to the ministry, and to do studies on the subject.

In addition to carrying out its mission, the Commission on human rights and young people's rights thinks it is a good idea to share its expertise. The commission has expertise on international law, because of the reports and studies that it is required to prepare, and because of its participation in the implementation of international conventions.

The commission also has some knowledge of the youth network, as regards protection and delinquency, and the Commission has knowledge of the rights protected by the Quebec Charter, which has a quasi-constitutional status. We also talk about economic and social rights, and section 39, which acknowledges children's right to protection and security.

Sections 1 to 9.1 of the Quebec Charter set out the fundamental rights, including the right to privacy, and judicial rights, in sections 23 to 38: the right to be assisted by a lawyer and the right to a full and complete defence.

The commission's main concern about Bill C-7 is to ensure that the interest of children remain the focal point of any decision regarding them. In so doing, the commission does not deny the importance of protecting society, but the main concern is to maintain a balance between protecting society and defending the interests and needs of children, and also to retain a system based on rehabilitation rather than correction.

I am going to refer briefly to certain clauses of the bill which, in our view, threaten this balance between the protection of society and the interests of children. We think the bill focuses on the crime, that even more than in the current legislation, it creates a bigger gap between a minor crime and a serious crime.

The decisions made regarding children will often be based on this, and their interests and needs are disregarded and the focus is rather on the crime committed. This can be seen in the contradictions contained in the objectives set out in the bill.

First of all, the preamble refers to the interest of the child at the outset, unlike Bill C-3, where the interest of the child ranked third. That is true, but preambles do not carry that much weight in the interpretation of laws. They are considered secondary, and cannot be used to determine the legislator's intention where there are problems of interpretation.

In addition, the preamble is contradicted by the statements of principle scattered throughout various clauses of the bill. I am referring to clauses 4 and 10 of Bill C-7 regarding extrajudicial measures, for example. The objective conveyed by these measures is to deal with non-violent crimes. Here again there is a reference to the crime in order to determine a measure, and consequently, the concept of the child's interest and needs, which should be the first priority, is lost.

There are also the provisions about sentencing. The objective of clause 38 is the protection of society, custody and supervision. Clause 83 is also about the protection of society, and the reintegration of young people into society to make them into citizens who respect the law.

In our view, in addition to disturbing the balance between the protection of society and the interests and needs of the child, these contradictions and other complexities in the bill will lead to legal interpretation problems that will undermine the judicial stability acquired after a number of years of debate before the courts to reconcile and interpret the various objectives contained in the current act.

The interpretation problems that will result will definitely not be in the interest of children, who, as we all know, have to have their case dealt with quickly, because time is so important in a young person's life. These problems will not calm public opinion either, because there will be contradictory judgments initially, until the Supreme Court makes the final decision.

Another threat to the balance between the protection of society and the interests of the child is sentencing, which seems to be focused on the crime. A flagrant illustration of this is the fact that under clause 62, adult sentences are imposed automatically on young people.

Of course, the current act provides that young people shall be referred to adult court, and that would lead to an adult sentence. However, the Attorney General can point to various criteria set out in the legislation, and the court must take these into account in its decision. In this bill, the burden is reversed. First of all, the burden is on the young people to make an application asking that the clause not apply to them, and second, to mention the various criteria to the court.

In our view, making an adult sentence automatic if the young person does not make an application amounts to losing sight of the needs of the young person. I would like to emphasize that even though it is up to the court to take into account these criteria and to the Attorney General to present them, the case law acknowledges that the seriousness of the charges is only one of the elements that must be considered, but that it is not the determining one. Even today, it is not considered determining, but under Bill C-7, this case law will no longer stand up, because the bill states the exact opposite.

The Deputy Chairman: Which clause is that?

Ms Bitzakidis: Clause 62. Finally, I would just like to emphasize that the rights of children, which are supposed to be the focus of decisions, seem to be threatened. This can be seen by the provisions on custody and the level of custody. At the moment - this is in section 85 - the provincial director can determine the level of custody. When the court orders custody, the provincial director determines which level of custody. So what was formerly a decision by the courts, in which the judge had to comply with a number of criteria in determining the level of custody, has now become an administrative decision.

Our concern is whether the rights of children will be respected, including the right to be heard, before a decision is made, and the right that the decision made take into account the young person's entire case history. The court will have had the opportunity to hear the evidence, to hear the various points made about the child, but the provincial director will not have this opportunity. So we wonder whether the provincial director might not have a different agenda in making a decision, perhaps an economic agenda, in the case of budgetary restraint, for example. We are also concerned about whether the rights and interests of children will be at the heart of the decisions that are made.

This is a very brief outline of the flagrant problems that exist. My colleague will now comment on the international law.

Ms Bernard: As you just said, the commission ensures that the international commitments made by Canada, with the agreement of Quebec and the other provinces in the area of the rights of the child, are respected.

The commission bases its position on Bill C-7 on the principles recognized by the international community in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the minimal rules of the United Nations regarding the administration of justice for minors and the UN rules for the protection of minors deprived of their freedom.

Reference was made to the convention and the rules during the testimony. I thought it might be helpful to name the various international instruments involved and explain their scope and the links between them.

First of all, the International Covenant on Civil and Political Rights was passed by the General Assembly of the United Nations in 1966. It came into effect in 1976 and was ratified by Canada the same year, that is in 1976.

As we will see later, the covenant does not provide for rights as broadly as does the Convention on the Rights of the Child, because its scope is much wider. However, it does recognize some rights for children who are detained.

The Convention on the Rights of the Child was passed by the General Assembly of the United Nations in 1989. It came into effect in 1999 and was ratified by Canada, with the agreement of Quebec and the other provinces, in 1991.

In addition, the UN has passed three sets of rules on justice for minors. These rules were developed by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders. This congress is held every five years and bring together government representatives from around the world. Over 180 countries were represented at the last congress. That is a fairly broad representation of the international community.

The congresses also bring together members of international and non-governmental organizations, as well as internationally renowned legal experts and specialists in crime prevention and criminal justice, such as senior police officials, criminologists, corrections specialists and other experts.

The participants at these congresses adopt other kinds of rules, and they have adopted three sets of rules that specifically have to do with the youth justice system, but we are just going to talk about two of these sets of rules here.

The first set is the Beijing Rules, which are the United Nations rules that have to do with the administration of juvenile justice. They were passed in 1985 by the United Nations General Assembly. The rules are developed at the Congress, and then they are passed. All the representatives of the various countries take part, and the rules are accepted once they have been adopted by the United Nations General Assembly.

This was done for the 1985 Beijing Rules, so that was a few years before the Convention on the Rights of the Child.

In 1990, the United Nations General Assembly adopted two sets of rules: the Guidelines for the Prevention of Juvenile Delinquency - we will not come back to these rules, but they can be useful to shed light on other aspects of the issue you are studying - and finally, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. They were adopted on the same date as the Guidelines for the Prevention of Juvenile Delinquency.

It is true that unlike the covenant and convention, the rules are not binding in and of themselves. However, some have becoming binding insofar as they have been reproduced in articles 37 and 40 of the Convention on the Rights of the Child. That is the case for the Beijing Rules adopted in 1985; once they are reproduced, they are deemed to be included and so, they become binding. Furthermore, in its preamble, the convention makes reference to the Beijing Rules.

As for the United Nations rules that were adopted later, we can see that they expand upon or explain a number of elements that are expressed in more general terms within the Convention on the Rights of the Child. For example, the right to privacy is recognized in the convention, but it is set out in far more explicit terms in the rules. You must understand that these rules are in addition to and must serve as standards for the application of rights that are recognized under the convention, as the Committee on the Rights of the Child indicates regularly. Moreover, member states are expected to implement the resolutions and other instruments adopted at the various congresses in their domestic legislation.

The Deputy Chairman: Could you repeat that?

Ms Bernard: You must understand that these rules flesh out the rights and serve as standards for the application of rights that are recognized under the convention. I am trying to explain that despite the fact that these rules are not binding in and of themselves, they do become binding, not just because they are reproduced verbatim, but also because they provide further information. When you read the reports of the Committee on the Rights of the Child, you can see that they make reference to these rules to determine whether a country is in compliance or not. They impose standards for the application of the principles.

On the basis of these international instruments, our commission has concluded that the bill does not respect several rights that adolescents have.

As my colleague already pointed out, the best interest of the child is no longer the most important consideration, which violates article 3 of the convention and articles 5 and 17 of the Beijing Rules. I have brought different rules if you would like to go back to the various rights.

Senator Nolin: Could we get these documents from the witness and have them distributed to the committee members?

The Deputy Chairman: I hope so. You have touched upon a fundamental issue that we have already discussed. I am very pleased that you raised this point.

Ms Bernard: We would be pleased to do so, and everything is on the Internet.

Senator Nolin: You will get a summary.

Ms Bernard: My presentation was already in our brief, which we sent to the House of Commons committee in 1999. In fact, we used the same line of reasoning with a few changes that apply to Bills C-3 and C-7, and the rules are identified.

In our opinion, the bill violates the interests of the child and also more specific rights. The bill recognizes the right to counsel. The convention recognizes the right to counsel as well as the Beijing Rules. The right to a lawyer is enshrined in section 10 of the Canadian Charter of Rights and Freedoms as well as in the Quebec Charter of Human Rights and Freedoms. Article 29 of the Quebec Charter recognizes the right to a lawyer once one has been detained or arrested, and article 34 of the Quebec Charter guarantees the right to be represented by a lawyer before any court.

I acknowledge that the principle is found in the bill, but we see two problems here. One of these problems was described to you earlier today. In principle, youth should be entitled to counsel at all stages in the procedure - that is what the bill says - except at the stage of extrajudicial measures, which are not sanctions. Even though the bill does not say so explicitly, when you read the other clauses, you see that it is provided for in the case of extrajudicial sanctions, and we find it in clause 25, which specifies under what conditions one is entitled to counsel. The most serious thing for the commission - and we raised this issue in 1999 - is that the bill allows the provinces to recover from the parents the costs of counsel that the provinces provided on the child's behalf. The commission is completely opposed to this provision. Furthermore, we successful proposed changes to the Quebec rules that govern financial eligibility for legal aid that were supposed to amend this rule. It is a matter of avoiding conflicts between the parent's interests and those of the child. The bill would allow the provinces to make the request at the end of the process. Normally, the parents are notified. This will certainly have an influence on the child's access to counsel, given the expenses, since some parents are well aware that under the eligibility rules prevailing in their province, they are the ones who will have to reimburse the province. We have always been against this provision. We have always thought that if we really want to recognize the child's right to be defended by a lawyer, to have the assistance of an attorney, that attorney must be completely independent of the parents insofar as he provides some information.

The second right is recognized by the Convention on the Rights of the Child, as well as by the Canadian Charter and the Quebec Charter: this is the right not to incriminate oneself. The bill reproduces section 56 of the current act, but now it would allow the court to accept certain testimony that otherwise would not be admissible because of technical irregularities. The commission believes that if one wishes to avoid these practical problems, better training must be provided to police officers and more resources must be used when the deposition is taken. The current or upcoming rules must be applied, rather than allowing an exception that was changed between C-3 and C-7 that we really do not understand. I cannot even try to explain to you under what circumstances the court could or could not decide to accept the statement anyway, by invoking this principle.

Third, there really are more serious concerns with the right to privacy. The Convention sets out explicitly that the young offender is entitled to privacy. The Beijing Rules and the United Nations rules are very explicit as to the meaning of privacy. This applies to the publication or dissemination of information regarding the youth, namely by the media, but there are also rules having to do with the young offender's file and access to the file. Since 1995, a number of exceptions have been allowed to this principle of respecting privacy. The bill adds to these exceptions even if we retain the principle that the name of a youth who has received a specific sentence for a designated offence can be published.

For example, the name of a young offender aged 14 or over found guilty of one of the five designated offences would be published, even if he does not receive an adult sentence. One could argue that the judge has the power to order that the youth's name not be made public, but the burden of requesting a publication ban will be placed upon the youth or on the Attorney General.

Moreover, unlike the rule that restricts access to the file, publication would be allowed even before the deadline for an appeal has expired.

Furthermore, we realize that there are confidentiality rules in the bill to protect privacy, but at the same time the bill allows for exceptions, particularly given that it increases the number of people who can have access to the file without judicial authorization. Back in 1995, the commission was opposed to the changes that have been made which undermine the principles in question. The bill continues to make the situation even worse.

Senator Joyal: Could you give us the exceptions to the confidentiality rules?

Ms Bernard: Clause 117, for example, contains a list of the people who can have access to the records.

This bill continues to violate the principle that youths in detention should be kept separate from adults.

We know that Canada has signed a reservation to subsection 37(c) of the convention. The principle was already set out in article 10 of the International Covenant on Civil and Political Rights. This provision does not allow for an exception. The Committee on Human Rights made a general observation regarding this article, stating:

This provision does not allow for an exception, and Canada did not file a reservation when it ratified the international covenant.

In addition, by extending the possibility of a presumptive transfer to minors aged 14 or 15, the bill violates the principle even more. You have probably been told that even if Canada has signed the reservation, the Committee on the Rights of the Child has reminded Canada that the next time Canada appears before the committee, they would like this reservation to be removed.

By allowing for a special system, particularly for adult sentences and designated offences, the bill excludes nearly all youths from the series of protective measures set out in international law. A young person who has been given an adult sentence or a specific sentence for a designated offence will not benefit from such protection, because in his case, the publication of his name will be allowed, and he will not enjoy the protection that is provided by the rules regarding access to the records, even if one argues that there are restrictions. In any event, these rules will not apply to this group of young people, and so obviously, the consequence will be that this exception is extended to youths aged 14 or 15.

[English]

Senator Andreychuk: You are the first group of witnesses who have come before us to put in such great detail the international obligations and how they impact both the previous act and this bill. Thank you for that. That has been one of my concerns since I came to the Senate, that, when we made those changes in the 1995, we did that knowing that we were not complying with the convention and that that was wrong.

We display some good intentions here with the preamble, where we say that we have ratified the convention or that we want to adhere to it. However, we do not have proper enabling legislation to make the convention our law in Canada.

Has this been taken up with the Government of Quebec at all? You are a creation of the Province of Quebec. We need enabling legislation at the federal and provincial level. This brief would not then just be where you think we should be going, it would oblige the government to do what you are saying they should.

[Translation]

Ms Bernard: If I have understood your question correctly, you are asking us whether Quebec intends to pass general legislation.

Senator Andreychuk: Yes.

Ms Bernard: We do not see any move in that direction. I acknowledge that this is difficult because of the shared jurisdiction. However, every time Quebec legislators and federal legislators pass legislation, they have an obligation to ensure that it is consistent with our obligations.

It is possible, yet difficult, to have a fragmented act. We could answer by telling you that the Youth Protection Act already is a mini-charter for children who are protected by that legislation. Of course, we have to see whether it is in compliance with the new obligations.

On the other hand, the Government of Quebec is sensitive about the federal legislator's compliance with the convention, because this is one of the questions that has been asked of the Court of Appeal regarding the compliance of these provisions with the international covenant and the convention.

[English]

Senator Andreychuk: In order that we both agree to the same thing, the Government of Quebec has not passed any specific law to deal with this, but you say they respect it. The federal system also says they respect it. The minister has come before us and said that the bill complies with the convention. You have pointed out all of the ways that you believe it does not comply with the convention.

[Translation]

Ms Bernard: The Government of Quebec is under that obligation. We have already had the opportunity with other legislative provisions or other practices to say that the Quebec government is not in compliance. It has an obligation to comply if it is within its area of jurisdiction.

You say that the courts would have the power to interpret the impact of the convention, and that is true, insofar as they have a discretionary power. Without raising the issue directly, the bill has greatly reduced the discretionary power of the courts. As a matter of course, I do not believe that they could raise the issue of compliance with the convention.

[English]

Senator Andreychuk: If we had moved the convention from the preamble right into the body of the bill, that would be a clear signal to the courts to weigh the convention more heavily.

[Translation]

Ms Bernard: We must look at all the rights that are recognized. Generally speaking, we recognize some of these rights. It is the exceptions that are harmful. Thus, we must ensure that the provisions having to do with access to records and the provisions regarding the publication of the youth's name do not undermine privacy.

The Deputy Chairman: To your knowledge, is there a Quebec law that implements the treaty?

Ms Bernard: No. Furthermore, very few countries have legislation that implements the Convention completely. Perhaps Brazil does.

The Deputy Chairman: It is true that most countries do not need to have legislation, but we have a system that obliges us to implement the treaty. No such legislation has been passed?

Ms Bernard: No. There is no enabling legislation.

The Deputy Chairman: I am sure that my colleagues will come back to this subject.

[English]

Senator Grafstein: I am confused, not by your evidence but by the evidence of the minister and the officials. Until I listened to you carefully and read your brief, I assumed that this law was a means of implementing the United Nations Convention on the Rights of the Child by explicit legislation. The reason I was driven to that conclusion is that the minister in her testimony said that it does conform. In addition to that, the fourth recital on Bill C-7 says:

WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Charter...

If this is not a form of implementation, then what is it? Why do we even refer to the UN charter; is this just a shell game?

[Translation]

Ms Bernard: I cannot answer for the minister, but that reference is not enough. Obviously, I cannot tell you why they put it in the preamble. The rights must be recognized in the provisions that apply in a practical way.

For example, we could take the Baker decision of the Supreme Court. We did not say that the Immigration Act had to indicate that it makes reference to the convention. Rather, we said that the officials could consider the interest of the child in their decision and this concept is set out at article 3 of the convention. So we have to look at the articles of the convention and see how they are included or see how they are not respected in the various provisions. So, in our opinion, this is not enough.

[English]

Senator Grafstein: I wish to thank you for this, because it is important. Perhaps the staff can review the testimony of the minister and her officials to see specifically what is said about the UN convention. My recollection is that she said words to the effect that the proposed legislation conforms.

Perhaps weasel words were used to say that we sort of recognize the UN charter but, by the way, we are sort of focusing on the UN convention. The proponents of this bill certainly believe that is the case.

It is important to see what the minister is saying to us, whether it is that this bill conforms to the convention or that we recognize the convention in spirit, which is different than what I concluded from her evidence.

I now have the transcript, and I refer to page 10 of 28 of the minister's evidence on September 27.

Let me put that on the record now, so that we can at least deal with this. She says, in part, the following:

Honourable senators, some questioned whether this legislation is respectful of provincial jurisdiction. I can say that there is unprecedented flexibility for the provinces in the administration of this bill.

I do not quarrel with that. I quote her again:

The Government of Canada is confident that Bill C-7 is constitutional.

That is for another day; we will come back at that. Then she goes on to say:

It is a valid exercise of the federal government's criminal law power and it does comply with our obligations under the UN Convention on the Rights of the Child. All those matters have been thoroughly reviewed by our lawyers and by others. We stand behind this legislation and we will defend it as it proves necessary.

This is really not a question for the witnesses, but I took from that, chairman, that the minister established for herself by de facto implementation of the legislation that each of the standards in the UN Convention on the Rights of the Child is adopted in this bill.

The Deputy Chairman: Or in our Charter.

Senator Grafstein: No, in the bill. The minister said this:

It is a valid exercise of the federal government's criminal law power and it does comply with our obligations under the UN Convention on the Rights of the Child.

In effect, she said, "Make no mistake about this, senators, this complies."

I will have to check my own resources on this, but I took from that that the minister was saying that she, by conforming to the UN legislation, having put it in the recital, was implementing, by means of legislation, the obligations under the UN Convention on the Rights of the Child.

Is it de facto implementation, ratification of implementation of the bill? The minister does not have to put that into a bill, and say, "We are implementing that in this bill." She said it by her evidence and she said it in the recital. Perhaps the minister can come back to us and explain. Did she mean to implement the bill by this legislation or not? She is certainly able to do that. It is a criminal power. We will come back to that.

Ms Bernard, you raised another issue with respect to the convention that gave me some pause, and that is the reservation. Tell us again why you think the reservation, under the UN Convention on the Rights of the Child, does not give the minister more flexibility here than you have suggested?

[Translation]

Ms Bernard: Indeed, if we only look at subsection 37(C), she is entitled to do so.

[English]

Senator Grafstein: To do what?

[Translation]

Ms Bernard: To provide that in some cases, once a youth has been found guilty, he may be placed in preventive detention with adults. The reservation allows her to do so.

On the one hand, this right to be detained separately is also guaranteed by way of article 10 of the International Covenant on Civil and Political Rights, and in this case, no reservation was filed when Canada ratified.

On the other hand, every time there is a reservation, the Committee on the Rights of the Child recommends to the country that it withdraw its reservation eventually because countries file reservations for various reasons. And once that is done, it is an exception to the recognition of rights.

But I do not mean that these provisions are not in compliance with subsection 37(C) since, in fact, the reservation allows this.

[English]

Senator Grafstein: Your brief on this question is instructive for me. If I understand what you are saying from your brief, including what you just said, assuming for the moment that my argument is correct and that the minister has de jure implemented the UN Convention on the Rights of the Child, assuming that is a valid premise, and it still begs the question, what you are saying is that the reservation dealt with detention issues but that it does not deal with the other issues, the right to counsel, the right to privacy, and the others; is that the effect of your testimony?

Ms Bernard: Exactly.

Senator Joyal: On a point of order. In relation to the discussion about compliance to the UN convention, I read the testimony of the minister, when she appeared before us, and I will read the statement verbatim.

Mr. Chairman, you might want to listen to this because it raises some problems that you may want to reflect upon. The minister said, in part, and I quote:

Furthermore, the preamble and principles add clarity and direction by explicitly recognizing the importance of other elements, such as compliance with the UN Convention on the Rights of the Child. This is the first time that I firmly believe we have indicated that the UN Convention on the Rights of the Child forms part of the basis of our thinking in relation to youth justice in this country. This is an important acknowledgment.

That is the minister words before the Standing Senate Committee on Legal and Constitutional Affairs on Thursday, September 27, 2001. To me, unless she says black is obscure and white is brilliant, it is the intention of the minister that the principles of the UN convention be reflected in the system. It says compliance. If it is not compliance, then what is it?

The Deputy Chairman: If I remember correctly, I said that it was not implementation at that time.

Senator Grafstein: Again, chairman, this is the point. Implementation does not mean a statute that says, "By the way, we are implementing." It means a clear reading of the bill and the minister's stated intention. She can just have a word saying "law" and then say in a declaration, "I am implementing this bill in a fulsome way," and she has done that here. That, in effect, is implementing, by domestic legislation, this bill.

[Translation]

Senator Nolin: I have one specific question about Quebec's ratification. In paragraph two of your application, you make reference to an order from the Attorney General in his reference to the Court of Appeal. It has to do with the ratification by the executive by means to two Orders in Council, two orders having to do with these two international conventions.

Ms Bernard: Before it ratifies the Convention, given that some of the matters affected by the Convention came under provincial jurisdiction, Canada had to ensure that the provinces were in agreement.

Senator Nolin: That was the initial tool for ratification?

Ms Bernard: Exactly. Both were in 1991. Canada adopted its Order in Council. If one were to ask me whether Quebec has adopted enabling legislation since that time following the principles of the Convention, Quebec legislation to ratify the Convention, I would answer no.

The Deputy Chairman: As I indicated at the beginning, we raised the issue here. Obviously, I am in a slightly different position, but I said at the time that in our system, when one signs a treaty and ratifies it, one has to go one step further. One must legislate to implement the treaty. So legislation is needed, but we have not done that.

Senator Joyal: At a meeting of the Senate Human Rights Committee, we heard testimony from Professor Leuprecht, the Dean of the Faculty of Law at McGill University in Montreal. We clearly asked him the following question: when Canadian courts have to interpret the scope and nature of obligations that Canada assumes when it ratifies a convention and recognizes it officially in its legislation, as is the case here, what sources of law are used to interpret the convention? Each individual State is not free to interpret the convention as it wishes, since you yourself made reference to the recommendation by the United Nations Committee on Human Rights regarding that very provision that is indirectly mentioned in the bill regarding the detention of minors in adult correctional institutions.

In your opinion, has the United Nations Commission on Human Rights made other rulings that may have interpreted the Convention on the Rights of the Child, still within the context of a juvenile court system, thus in the area that is of interest to us for the purposes of this bill?

Are there other sources of interpretation that we could consult to define the principles that apply, with regard to the conventions and rules that you made reference to when it is time to define a youth justice system?

Ms Bernard: As for the Convention on the Rights of the Child, the Committee on the Rights of the Child is the body responsible for receiving reports. Unlike the Committee on Human Rights, the Committee on the Rights of the Child cannot accept individual complaints.

At present, this may be one of the shortcomings of the process. There is no jurisprudence, for example, where Canada has been involved in cases having to do with international covenants. So there may not be any jurisprudence, but the committee does pass general observations and hold general discussions.

In the brief, I mentioned one particular interpretation, for example, arguing that rules that normally are not binding become standards. This is an interpretation that the committee made in its general debate on youth justice, but the committee also follows this interpretation each time it examines a report from a country. It makes observations and comes to conclusions. That can hold true for all countries. For example, if we look at the issue of corporal punishment, the committee has made recommendations to Canada and also to other countries. That is its interpretation. Individual complaints are not possible.

How can a Canadian court interpret these rules? The Supreme Court gave us our answer in the Baker ruling. One cannot argue the Baker ruling directly before the court. In that decision, Madam Justice L'Heureux-Dubé said that we can invoke the principles because of common values; some of the values set out in the Convention are recognized by all countries, so they become customary.

One of the interpretation principles of international law is that we can make reference to custom. Section 3 of the Convention on the Rights of the Child guarantees that the best interests of the child must be the predominant criteria. We say here that this is a criterion, but not a predominant one, and this has been illustrated. Furthermore, it is not a predominant criterion in the guiding principles. It has become so in the preamble further to amendments, and certainly in the various objectives that have been set forth, for instance, in sentencing. The best interest of the minor is no longer the predominant criterion. The convention, the Beijing Rules and the other rules stipulate that the justice system for minors must have, as its priority, the best interest of the young offender.

In interpreting Canadian values, the courts can draw upon the rights that have been recognized in the convention. Perhaps I have not summarized it very well, because I did not come prepared to explain the Baker case.

Senator Joyal: I am trying to get you to provide me with some kind of summary or analysis of the comments that the Committee on the Rights of the Child could have made as regards how we are to interpret the various principles which, generally speaking, should be applied to youth justice, since we are talking about young people. We are not talking about five or six-year-old children here, we agree that we are talking about adolescents.

What can we conclude from the comments or observations that this committee may have made since it began reviewing the application of the convention? What can we derive from their comments? I am looking for aspects that will help us understand how the four international instruments you refer to are applied to a justice system for children.

You said that the best interest of the child is predominant. Obviously, this is an important principle. There must be others, in the Convention, which are guiding principles. Since the minister has told us that she is in compliance with the principles, the content and the obligations that underlie the Convention, this would help us understand or be able to assess to what extent this bill complies with the Convention or conventions, as purported by the minister.

There is one particular aspect about our debate: when a minister appears before our committee, particularly the Minister of Justice, and states that a bill is in compliance with the Canadian Charter of Rights and Freedoms or the Canadian Human Rights Act, and that it is, therefore, constitutional with respect to the Charter, we take it for granted that we can presume this to be the case. That does not prevent us from proceeding with a review, but we take it for granted that there is a presumption of validity as far as respect of the Charter is concerned.

The minister appears before the committee and recommends a bill which, in its preamble, tells us that it is implementing the obligations and principles of the international convention.

We therefore ask the question about the application of principles and the way it will be done. Up until now, we have had to try to identify various aspects in the bill which we felt were problematic as far as the Convention on the Rights of the Child and other documents were concerned.

Consequently, I do not feel that it is enough to simply read the conventions or international instruments. We have to determine the scope of these instruments. It is a bit like the Canadian Charter of Rights and Freedoms: We can read it, but in practice, we have to see how it has been interpreted in order to establish the scope of the rights. This is where we could use your help, because we are in the position where the bill is before the courts before it has been passed, which is very exceptional.

Generally speaking, the bill is not challenged until it becomes law. But this one is being challenged and, what is more, it is now before a high court, namely, a provincial court of appeal, at a time where we are still in the process of debating the contents of the bill and at a time when we are, in fact, seeking answers, the same answers that the courts will have to eventually rule on.

We could do two things. We could say that this bill is before the courts, at any rate, and hence we will not have the last word. The minister's statements will be verified by the courts and the decision will be made. As a legislator, we could also sincerely ask the question and wonder whether or not this bill is a valid exercise in implementing principles that Canada defends internationally. Because Canada is a country that strongly advocates the promotion of children's rights in many international forums. Senator Pearson is a spokesperson for our institution on this issue.

We are grappling with the challenge of trying to understand the scope of the Convention, whereas in other circumstances, we would simply recognize its presence and recognize that it is probably reflected in the Canadian Charter of Rights and Freedoms, in the Canadian Human Rights Act, in the Quebec Charter and in other decisions or Canadian legislation.

We are dealing with an extremely important decision, namely, whether or not we have reasonable doubts that the bill that we are carefully studying truly does comply with the Convention. This evening, you have told us that this is not the case in many of its provisions.

We are therefore asking you what other sources we could consult in order to form an opinion on the matter.

Ms Bernard: That would require more in-depth research than what we have been able to do up until now. For instance, in order to understand the scope of each right conferred by the committee, we would have to look at each and every report, and, in particular, the study that the Committee on the Rights of the Child did on every report. This is possible, but I must tell you that this has not been done as of yet.

As for the general principle, the Committee on the Rights of the Child has already held a general debate on the administration of justice for minors. You can access this debate on the Internet and it is apparent that this debate is based on general principles. It does not talk about any specific cases, such as, for instance, the breach of privacy. It also deals with detention, which is a much more serious problem in many countries in the world, but it does point out, nonetheless, that problems occur regardless of what type of country or regime one happens to be in.

However, and this is what we feel is so important, it points out the need to ensure that any measure pertaining to children satisfies, first and foremost, the criterion of the best interests of the child. This is the conclusion drawn in article 40 and in the applicable rules. We told you that by establishing repression, namely the protection of society, as its primary objective, the predominant criterion is not the best interests of the young person who has committed the offence.

The Deputy Chairman: Have you already asked Quebec to draft and adopt legislation to give effect to the Convention on the Rights of the Child?

Ms Bernard: Not in a comprehensive way. There is always a problem with jurisdiction, but the usefulness of an organization such as ours is that, when a bill or a draft regulation or even certain practices are introduced, we review them on the basis of the principles and then we tell the legislator if in fact the measure is in compliance.

Senator Beaudoin: Obviously, the federal legislator in certain sectors and the provincial counterpart in other sectors each have legislative jurisdiction. If we want treaty rights to be implemented in Canada, both the federal government and the provinces are going to have to legislate.

Ms Bernard: This is a very good field. When you examine the convention provisions, you can see that, more than any other articles, 37 and 40, which deal with the administration of justice, are accompanied by rules establishing standards. For other rights that are recognized in the convention, there are no additional rules. I gave you the example of the right to privacy which, in article 40, is not stipulated in detail. There is no mention of access to the records or of the confidentiality of identity as is done in the rules. Indeed, this is an opportune time to do this exercise because if you examine the other provisions of the convention, you can see that they are more general.

Senator Joyal: I do not want to belabour this point, but it is extremely important in terms of our study. Did this special meeting on youth justice take place a long time ago?

Ms Bernard: In December of 1995.

Senator Joyal: I would imagine that the Committee on the Rights of the Child considered the conclusions of this special meeting when it assessed the degree of compliance of the various countries bound by the convention. I would suppose that this was used to draft the guiding principles and to do the compliance assessment of the youth justice initiatives and systems that were being implemented by these countries.

Ms Bernard: The Convention has now been in effect for 11 years. If you compare the convention to the Convenant on Civil and Political Rights, what the human rights committee has done and what the Committee on the Rights of the Child may do is to adopt general observations. This provides for greater scope. These observations have been useful to the courts, particularly in cases dealing with economic and social rights that will be examined by the Supreme Court.

The Committee on the Rights of the Child has just adopted general observations that can be used for interpretation purposes, but so far this has been done for only one case, namely, the right to education. This is quite recent. This will come in time, but we do not yet have this source of interpretation for articles 37 and 40.

Senator Joyal: Are these the articles that pertain to youth justice?

Ms Bernard: That is right.

[English]

Senator Grafstein: I have had a chance to look at the commission's brief to the Court of Appeal of the Province of Quebec. The witness, Ms Bitzakidis, signed the application on behalf of the applicant, so she has knowledge of it.

On a supplementary question first, when dealing with issues of gender equality, for example, the Supreme Court has, in effect, said that once conformed the UN convention is, in effect, part of the domestic law of Canada. Therefore, the Supreme Court says that Canadians will be bound by that law.

This, in a way, responds to Senator Joyal, who asked about the consequences of it. The consequence, as I understand it, is that it is part of the domestic law, part of the conventional domestic law and part of the common law, the common law being that we will not implement or respect legislation that fails to meet a UN standard. That is the consequence of it. If it is the UN, it is just a political consequence, a sanction; they will pass a resolution against us.

The deeper issue is that once we de jure implement something in domestic legislation, crimes against humanity being an example, we can bring action under crimes against humanity because it is part of the domestic law.

This is exactly what you are saying in your brief to the Court of Appeal. You are saying, in paragraph 2, that it is incompatible with the international law, which was, in fact, ratified in Canada and you refer to the Orders in Council. All of this was supported by the territories and the provinces, so it reduces the problem of mixed jurisdiction. It is not a question of whether Quebec implements it or not. If the federal government implements it, and the federal government has jurisdiction, as it does under the criminal power, or the right to legislate with respect to children individually, which is, I think, a shared power, that is enough for the courts to be able to say whether it conforms. Do you both agree with that?

[Translation]

Ms Bitzakidis: I will let my colleague comment on the international law aspect because I believe Senator Nolin provided the answer earlier when he was talking about the decree mentioned in the application.

Ms Bernard: Once the bill refers to the convention, that gives the courts an additional tool in judging its compliance. We must also understand that Canadian jurisprudence is evolving. Would the Court of Appeal have been able to do this had there been no reference? I do not think that an answer is required, I am not going to take any chance with that.

[English]

Senator Grafstein: Essentially, you agree with me that if the international convention is deemed to be part of the domestic law the Supreme Court will decide based on whether it conforms.

Ms Bernard: Exactly.

Senator Grafstein: I will turn to an issue that you have not dealt with in your application for leave to intervene and which is a concern of mine, and that is the question of whether clause 61, which delegates to the lieutenant governors in council of provinces the power to lower the age on those presumptive crimes, is a delegation ultra vires of section 91.27, that being the federal government's exclusive power to deal with the criminal law.

[Translation]

Ms Bitzakidis: This point was not dealt with in the application. As far as the application for leave to intervene is concerned, you must consider the commission's mission as conferred by the Charter and by the Loi sur la protection de la jeunesse (Youth Protection Act). Consequently, the commission's interest in participating in the debate was limited by its jurisdiction as defined in Quebec legislation. The commission intervenes especially in issues that come under its jurisdiction.

[English]

Senator Grafstein: I understand that, but when your application, which lists the Minister of Justice of Quebec, the Attorney General of Quebec and your commission as applicants and the Minister of Justice and the Attorney General of Canada as respondents, goes to the Court of Appeal, whether or not you argue it the court will have to look at the question of whether it is constitutional, because you have raised the question of constitutionality.

Senator Nolin: I do not think so.

Senator Grafstein: I am asking her view.

The Deputy Chairman: I would like to know, right from the beginning, whether this is involved in the reference review in front of the Court of Appeal.

[Translation]

Is that in the referral before the Court of Appeal? If that is not the case, it would be difficult to discuss the issue.

Senator Nolin: That was Senator Grafstein's question. Do the two paragraphs you refer to represent all of the questions that are put to the Court of Appeal?

Ms Bitzakidis: No, the Government of Quebec asks other questions that do not require the intervention of the commission.

[English]

Senator Grafstein: As lawyers to lawyers, if a question of the constitutionality of a particular piece of legislation is argued before the court, whether it is argued under a rubric of the charter, which is a fundamental aspect of the Constitution, or it is argued under section 91, the court, as a question of practice, would not be limited to just listening to the questions applied. It is free to deal with this question, because it has been a hot issue, as you know, between us and the officials of the Department of Justice and the Minister of Justice.

[Translation]

Ms Bitzakidis: Indeed, the commission gets involved with the first referral to the Attorney General, particularly in matters that pertain to the Loi sur la protection de la jeunesse (Youth Protection Act), which provides that certain principles stated in this legislation also apply to youth subject to the Young Offenders Act. As far as the commission is concerned, it is important to ensure that amendments made to the Young Offenders Act do not thwart the missions that it has under the Loi sur la protection de la jeunesse (Youth Protection Act) regarding the same youth. This is where the Commission comes into the constitutional debate.

[English]

Senator Grafstein: Is it fair to conclude that, when you refer to sections 92.13 and 92.14 of the Constitution Act, you are actually saying that those are under provincial jurisdiction and that, therefore, this might be a traversing of provincial jurisdiction. That is one aspect.

[Translation]

Ms Bitzakidis: I understand what you are saying, but I would like to point out that subsection 1, which is contained in subsection 2 of the application of the commission, is the subsection of the Attorney General of Quebec, which we are repeating.

[English]

Senator Grafstein: It is 2.1, I believe.

[Translation]

Ms Bitzakidis: Precisely. That provision was written by the Attorney General of Quebec and subsection 3 contains the concerns of the commission with regard to that statement. The first point deals with the scope of the obstacles which the legislation may pose with respect to the criminal justice system for young offenders in terms of the application of legal standards and psycho social practices which are currently used in Quebec for the rehabilitation of children who have committed criminal offences.

These practices are outlined in the Youth Protection Act which, under subsection 11.3, specifically states that some provisions of the Youth Protection Act and its principles apply to young offenders who fall under the Young Offenders Act.

The Deputy Chairman: Are you intervening within those parameters?

Ms Bitzakidis: The Commission has jurisdiction within those parameters.

Senator Nolin: Could we get the decree in its entirety?

The Deputy Chairman: We can obviously refer to it, as long as it is relevant to the bill which is before us.

Senator Nolin: It is the reason there is an application for leave to intervene before the Court of Appeal.

Ms Bitzakidis: The decree of the Government of Quebec?

The Deputy Chairman: Yes.

Senator Joyal: With regard to your application to appear before the Court of Appeal, I am referring to section 23, which is the last one on your application. It says:

Moreover, if the present application is granted, the applicant intends to submit to the court elements with view to establishing that (1) the foundations of the new act, (2) its guiding principles and (3) some of its provisions are not in compliance with international obligations which must guide any decision affecting a child.

You will therefore argue before the Court of Appeal that the foundations of the new legislation, its guiding principles and certain provisions, as contained in your submission, are inconsistent. In my view, you have proven this to us tonight and we will have the opportunity to study the matter more closely.

Are you going to conduct more research or study into the matter of the foundations of the new legislation and its guiding principles, or does the brief you presented here and in the other place represent the gist of your position?

Ms Bitzakidis: Please understand that in the legal process, there is a broadly defined provision which gives us the right to plead our case, but at this point, we have only submitted our application for standing at the hearing. As it now stands, our application has not even been submitted to the Court of Appeal. It was transmitted to the chief judge of the Court of Appeal.

The Deputy Chairman: You have not received an answer.

Ms Bitzakidis: No, because the chief judge in charge of the case still has to let us know when the hearing will be held. If the commission receives leave to intervene - which is what we want - it is obvious that we are going to study the matter further and that we will make a reference for the Court of Appeal to study the issue. I cannot say today that we will only submit what we gave you, but it nevertheless represents the thrust of our argument.

Senator Beaudoin: I do not think we could take the issue much further, because your testimony is based on the bill which is before us. The reference would make for passionate debate, but that is not the main reason why you are before the committee.

Senator Joyal: No, absolutely not. Except that the work carried out by the witnesses to define the foundations and guiding principles of the new legislation may be extremely useful in helping us understand the law based on their interpretation.

I understand that if your application is heard and accepted, you would present to the appeal court the motives contained in the evidence, based on your study of the foundations and guiding principles of this legislation and based on examples of provisions which are contradictory.

You are asking for a lot of time between the moment your application is granted and the moment you wish to table your brief. For the sake of our work, I was wondering whether we could count on receiving that document or whether we will have to rely on the brief you have presented this evening.

Ms Bitzakidis: I can tell you right away that the chief judge, the honourable Claude Michaud, indicated that he would hear our application in November. The chief judge will set the agenda, so I cannot tell you exactly when the application will be heard.

Senator Beaudoin: That gives us time to think.

Ms Bernard: Guiding principles are discussed when the protection of society from certain individuals is at stake. The question of whether the adult system should apply to young offenders is a fundamental one under the law and one which also affects its guiding principles. There is a lot at stake.

[English]

Senator Grafstein: I wish to thank the witnesses and others on the commission who helped with this draft. I find the brief to be superb.

[Translation]

The Deputy Chairman: I would like to thank our witnesses for having appeared before the committee this evening. The issues they raised were very interesting.

The committee adjourned